to an implied trust in favour of the contributor.
These trusts were held to take
e¡ect as tenancies in common under a trust for sale,
despite the apparent lack of
provision in the Law of PropertyAct for them to do so.
Williams & Glyn’s Bank
held that these interests could override the estate of a subsequent
purchaser undersection 70(1)(g) of the Land Registration Act1925 when coupled
with the bene¢ciary’s actual occupation.
They were interests ‘subsisting in refer-
ence’to land despite being interests under a technical trust for sale. In City of L on-
don BS vFlegg,
the issue waswhether a legalcharge of registeredland executed by
a married couple overreached a substantial bene¢cial interest belonging to the
wife’s parents, the Fleggs.
Unli ke in Boland, the disposition satis¢ed the require-
ments of what were identi¢ed to be the relevant overreaching provisions: sections
2 and 27 of the Law of PropertyAct1925.The mortgage advance had been paidto
two trustees.Was overreaching to prevail over section 70(1)(g)?
In the Court of Appeal,
Dillon LJ reasoned that under the Land Registration
Act 1925, the de¢nition of ‘minor interests’
includes those interests ‘capable of
under the Law of PropertyAct 1925’; only minor interests are
capable of being overreached, because overreaching was referred to only in the
de¢nition of minor interests. Thus, once a trust interest became overriding by the
4DyervDyer (1788) 2 C ox 92.
5Bull vBull  1 QB 23 4, now ‘trust of la nd’ under the Trusts of Land and Appointment of
6 The relevant provisions were ss 34^36. Many argue that the draftsman by these sections had
obviouslyexcluded any other and new methods ofcreating tena ncies in common: Harpum, Over-
reaching ,297^302; also M. Friend and J. Newton,‘Undivided Shares and Trusts for Sale ^
A Draftsman’s Error’Conv 213.
8 Section 70(1)(g) protected unregistered rights in land belonging to persons i n actual occupation
of the land or in receipt of rents and pro¢ts: L.Tee,‘The Rights of Every Person in Actual Occu-
tion 70(1)(g) was replaced by Land Registration Act 2002, sched 3(2). The Land Registration Act
1925was replaced by the Land RegistrationAct 2002. There is nothing in the reforms contained
in either the Trusts of Land and Appointmentof Trustees Act 1996 or the Land Registration Act
2002 that has any e¡ect on the analysis o¡ered in th is article. The 2002 Act built on the basic
structure of priority laid downi nthe 1925 Acta nd soughtonly to con¢rm, and improve on, the
purchaser-protection provisions laid down therein. For convenience, I continue to refer to the
1925 Act.The new terminology is ‘interests that override’: Land Registration Act 2002, scheds
1 and 3; see C. Harpum and J. Bignall, Registered Land Lawand Practice under the Land Registration
Act 2002 (Bristol: Jordan, 2004); R. Abbey and M. Richards,The Land Registration Act 2002
(Oxford:Oxford University Press, 2002).
9  1 AC 54.
10 Norestriction had been entered on the register. The Fleggs rejected adviceto the e¡ect that the
property should be registeredin the names of all four because they thoughterroneously that they
might become liable under the mortgage:Harpum, Overreaching , 307.
11 Anderson states that the draftsman of the 1925 legislation ‘had not. . . said what is to happen if
principles clash’: J. S. Anderson, Lawyers and the Making of English Land Law 1832^1940 (Oxford:
Clarendon Press,1992)330 (hereafterAnderson).Although I argue below that there is no such clash.
12 2 WLR 616
; D. Hayton,‘
Are Occupiers’Overreachable Interests ReallyOverriding?’ [1986
NLJ 208, 20 9; D. Hayton, ‘No Overreaching of Occupying Bene¢ciariesWithout Their Con-
sent!’Co nv131; J.Greed, ‘Post-Flegg Problems’  Law Soc Gazette 1957;M. Thompson,
‘Dispositions byTrustees for Sale’  Conv 108.
14 The terminology ‘overridden’ and‘overreached’ is used interchangeablybetween the Land Regis-
tration Act1925 and the Law of PropertyAct 1925.
215rThe Modern LawReview Limited 2006