Pre-1925, purchasing land was very difficult because of complexities in land law. It was time-consuming for the purchaser, they would have to search for legal owners even though. However, the main aim of the Land of Property Act (LPA) 1925 was to offer certainty and stability to the status of rights. The main principle of this legislation was to make it easier and sufficient for buying or selling. It can be argued that, in modern land law, exceptions to formalities are also essential as formalities themselves. In this essay, I will be exploring the various types of formalities including, in writing, deed and registration and exceptions to formalities such as implied trusts and proprietary estoppel.
The main principle of formalities of the modern land law is to create or transfer the legal estate or interest in land, this can be done either legal or equitable. Thus, the formalities required by statute before a disposition can be effective . This can be seen in either in writing or in a special document known as a deed. It is further illustrated under the Land of Property Act 1925, s.52(1) , which refers to any transfer of a legal estate in land must take the form of a deed and it must be in writing.
Formalities such as deeds and writing prevent the fabricated ascertain. This was shown in the case of HSBC Trust Company v Quinn . It was held that a document was only to be held to be a deed if it was clear from the wording of the document itself that it had been intended to be a deed . Therefore, this suggests that in present-day land law, formalities are very essential. Additionally, other benefits of the formalities include avoiding fraud, writing provides the best evidence of what the parties have agreed . By doing this, it would clarify the intent of both parties. On the other hand, a stricter approach of the formalities is defined under s.1(2) and (3) of the Law of Property (Miscellaneous Provisions) Act ( LPA (MA)1989 . Thus, this will allow the parties to be fully aware of their actions in purchasing or selling a land. Overall, in present-day land law formalities of the land law is very important.
Under the Land Registration Act (LRA) 2002 (previously 1925), you can register a property, this provided a system of registration of titles but not titles to land. The main objective of this land registry is to create a register which precisely reflects the state of the registered property, therefore, it suggests that the formalities are very important in present-day land law. De jure, a purchaser does not need to look further but the register when making enquiries about a piece of registered land. De Facto, the existence of overriding interests which bind a person despite not appearing on the register. There are two types of estates in land, one being free simple and the other being leasehold.
There are three jurisprudential principles of the registration land, these underlying systems of the registered title are identified in a seminal work by Ruoff (1957) . The mirror principle, ‘involves the proposition that the register of the title is a mirror which reflects accurately and completely the current facts that are material to a man’s title’ . It is advisable under Schedules 1 and 3 to the LRA 2002 to physically inspect the land . This is because of the hidden rights such as overriding interests. The curtain principle, refer it’s to the equitable interests that are hidden behind the curtain of trust. The rights of the purchaser are not affected if they have followed the correct formalities. And finally, the insurance principle, this reflects the idea that state provides a guarantee of the accuracy of the register and will compensate anyone who suffers loss a result of any errors contained in it.
Once a title is registered, all information’s are recorded. The structure of the Land register, it’s divided into three parts, the property register identifies the title as freehold or leasehold , the proprietorship register gives the name and address of the registered proprietor(s) . Moreover, a person registered as a result of fraud or mistake has a valid title . In the cases of Malory Enterprises Ltd v. Cheshire Homes and Chief Land Registrar , it was held that a person registered with a title to an estate or a charge has both legal and equitable title, even if there was some error in the transaction leading to the registration .
Proprietary estoppel is an exception of the present-day land law, it can provide a defence to an action by a landowner who seeks to enforce his strict rights against someone who has been informally promised some right or liberty over the land . This was shown in the case of Lester v Hardy , estoppel operated as a defence to an allegation of nuisance by the landowner . Thus, this means that proprietary estoppel can result in the creation of an interest in land without formal dealing. According to Oliver J in Taylor Fashions v. Liverpool Victoria Trustees , a claimant will be able to establish an estoppel if they can prove an assurance, reliance and detriment in circumstances in which it would be unconscionable to deny a remedy to the claimant .
However, in recent years, the three requirements in establishing an estoppel have become blurred. It can be debated that the doctrine of estoppel is not a creation of the modern land law. For example, in the case of Yeoman’s Row Management Ltd v Cobbe , it was held by the lordships that “ proprietary estoppel cannot be used to make enforceable an agreement that does not comply with s2 of the LPA (MA) 1989” . In Inwards v Baker , the court of appeal held that the son had no equitable right to occupy the land for life . Therefore, suggesting that the exceptions of formalities are not as important as the formalities themselves.
One of the main exceptions of the formalities to the present day land law is implied trust. Trusts are not expressed in writing because it is implied on the behaviour and action of the parties. Furthermore, implied trust forms an exception to s.53(1) LPA 1925; it must be in writing. There are two types of implied trusts, resulting and constructive trust. In the case of Chaudhary v Chaudhary , it was held by the court of Appeal, then there was no express intention about the purpose of the £5,000 . Similarly, in Dyer v Dyer , it was argued that if the father paid the full purchase price then he retains the full equitable title and the son will have the legal title . This shows that the exceptions of formalities are as important as the formalities themselves.
Constructive trust refers to the common intention of the legal owner and the claimant in acquire to share a property. In the case of Lloyd’s Bank v Rosset , it was argued, if there is a common intention where there is an evidence of an agreement or understanding that the beneficial ownership of the property will be shared and there must be detriment. One could argue, that implied trust may not be as important as the formalities themselves, due to the trust being implied, it could be difficult for the purchaser to know if there are any beneficial interests. Therefore, it can be argued that the exceptions of the formalities are not as important as the formalities themselves.
In conclusion, it can be said that the exceptions of the formalities are as important as the formalities themselves in the present-day land law, the exceptions do not need to evidence in writing. However, one could argue that the exceptions of formalities may not be as important as the formalities themselves as it was explained in the case of Morris v Morris , it was held that there was no common intention or proprietary estoppel had arisen. Therefore, this shows that the exceptions to the formalities are not as important the formalities themselves.