TY - JOUR

T1 - Overreaching- Getting the Right Balance

AU - Cahill, Dermot

AU - Owen, John

PY - 2017/2/22

Y1 - 2017/2/22

N2 - 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.

AB - 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.

KW - overreaching-proposals for reform-comparative law

M3 - Article

VL - 81

SP - 26

EP - 44

JO - Conveyancer and Property Lawyer

JF - Conveyancer and Property Lawyer

SN - 0010-8200

IS - 1

T2 - Modern Studies in Property Law Conference Queens Belfast

Y2 - 6 April 2016

ER -