Claimant in occupation – Fraudulent conveyance – Status of alleged interest
When the other side is banging on about their client’s rights, it can sometimes be useful to point out that the relevant law is far from certain – a point made even more clearly if the relevant uncertainty has been judicially acknowledged at a high level.
As regards the proper interpretation of section 70(1)(g) of the Land Registration Act 1925, a fitting acknowledgement can be found in Collings v Lee [2000] EGCS 115, where the court, having decided that the claimants had a fully-fledged beneficial interest in the property in dispute, was manifestly relieved to record that it did not have to make a ruling on an issue that would otherwise have been critical.
What was officially left on the back-burner was the question of whether a claimant, who was in actual occupation, can claim an overriding interest when the right he asserts falls short of a proprietary interest, and would be classified as a “mere equity”. A typical equity is the “right” (begging the question) to claim rescission or rectification of an antecedent disposition on the grounds of fraud (as in Collings) or mistake.
While such a claimant would derive some assistance from Nurdin & Peacock plc v DB Ramsden & Co [1999] 1 EGLR 119, the force of that decision has arguably been weakened as a result of the open-minded approach taken by the higher court in Collings.
It is suggested that if and when the issue does fall squarely for decision, the central problem will be one of circularity. The task of labelling a particular right as proprietary or otherwise cannot be performed before the courts (or parliament) have laid down the range of persons against whom that right can be enforced. By way of analogy, you can say that Private Atkins “deserves a medal”, but you cannot call him a “medallist” before he has been duly decorated.
Related item:
Claimant in occupation – Fraudulent conveyance – Status of alleged interest
When the other side is banging on about their client’s rights, it can sometimes be useful to point out that the relevant law is far from certain – a point made even more clearly if the relevant uncertainty has been judicially acknowledged at a high level.
As regards the proper interpretation of section 70(1)(g) of the Land Registration Act 1925, a fitting acknowledgement can be found in Collings v Lee [2000] EGCS 115, where the court, having decided that the claimants had a fully-fledged beneficial interest in the property in dispute, was manifestly relieved to record that it did not have to make a ruling on an issue that would otherwise have been critical.
What was officially left on the back-burner was the question of whether a claimant, who was in actual occupation, can claim an overriding interest when the right he asserts falls short of a proprietary interest, and would be classified as a “mere equity”. A typical equity is the “right” (begging the question) to claim rescission or rectification of an antecedent disposition on the grounds of fraud (as in Collings) or mistake.
While such a claimant would derive some assistance from Nurdin & Peacock plc v DB Ramsden & Co [1999] 1 EGLR 119, the force of that decision has arguably been weakened as a result of the open-minded approach taken by the higher court in Collings.
It is suggested that if and when the issue does fall squarely for decision, the central problem will be one of circularity. The task of labelling a particular right as proprietary or otherwise cannot be performed before the courts (or parliament) have laid down the range of persons against whom that right can be enforced. By way of analogy, you can say that Private Atkins “deserves a medal”, but you cannot call him a “medallist” before he has been duly decorated.
Related item:
PP 2002/83
