Overreaching- Getting the Right Balance

Allbwn ymchwil: Cyfraniad at gyfnodolynErthygladolygiad gan gymheiriaid

Fersiynau electronig

Dogfennau

In land law overreaching is a defence mechanism which protects purchasers against the rights of beneficiaries under trusts of land, enabling purchasers to take free from such trusts. There are various defences available to purchasers against other incumbrances affecting land, and these vary according to whether the land is registered or unregistered. As unregistered land ‘has had its day’ this article will only consider the concept of overreaching in the context of registered land transactions. Overreaching forms part of a much wider framework for the protection of purchasers from incumbrances following transfers of land. It forms part of a fulcrum in the seesaw which attempts to balance out the competing aims of ensuring that land should be a dynamic security on the one hand, with the protection of static security inherent in the broader structure of land law on the other hand. There is currently an imbalance, insofar as the defence of overreaching is concerned, in favour of the purchaser at the expense of the beneficiary (i.e. between dynamic and static security), and the scales need resetting in order to achieve a fairer equilibrium. The article will suggest that this could be achieved by either making trusts of land registrable, or alternatively, by way of an additional form of restriction to the standard forms of restrictions currently available. With regards to the suggestion for making trusts of land registerable, the article should be viewed as forming part of a broader debate concerning the registration of trusts. Of course, overreaching in land law is not the only defence mechanism in registered land transactions which has its problems in striking the right balance between competing interests. The Register may be altered for the purpose of correcting a mistake, and “[t]hat term is not clearly defined in the LRA 2002,” giving rise to narrow and wide views of mistake.

Allweddeiriau

Iaith wreiddiolSaesneg
Tudalennau (o-i)26-44
CyfnodolynConveyancer and Property Lawyer
Cyfrol81
Rhif y cyfnodolyn1
StatwsCyhoeddwyd - 22 Chwef 2017
DigwyddiadModern Studies in Property Law Conference Queens Belfast - Queens Belfast, Belfast, Y Deyrnas Unedig
Hyd: 6 Ebr 2016 → …

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