This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
A purchaser of registered freeholds acquires the land under ss. 29 - 33 of the L. T. Act, 1875, or some of them, while a purchaser of registered leaseholds acquires the land under ss. 34 and 35 of the L. T. Act, 1875, or L. T. Eules, 1903, rr. 140, 141 and 142, or some of them, according to the quality of the title registered. Under s. 29 a transfer does not take effect till registration of the transferee, so that if he is dealing with the legal estate off the register (e.g., by way of mortgage), the mortgage should not be finally delivered or dated till after the registration of the mortgagor.
Powers of disposition.
Under L. T. Act, 1875, s. 18, as amended by L. T. Act, 1897, certain matters are declared not to be deemed incumbrances for the purposes of the Acts, and the transfer will be subject to such of these liabilities as are subsisting ; accordingly the purchaser must take especial care to ascertain whether any of these liabilities are subsisting.
Matters declared not to be incumbrances.
Besides the incumbrances entered on the register, certain other matters are paramount to the registered title, for instance, the interests subsisting or capable of arising at the date of first registration with a possessory title which are adverse to the title of the first registered proprietor, and any interests excluded under a qualified title. These matters must be investigated as if the land were unregistered.
Matters unaffected by-registration.
Then again, the purchaser must search for notices of leases (s. 50), of rights to dower (s. 52), cautions (s. 53), inhibitions (s. 57), restrictions (s. 58), notice of deposit of certificates or intended deposit (L. T. Act, 1897, s. 8, last paragraph, L. T. Rules, 1903, rr. 243 - 251), and restrictive conditions (s. 84).
Notices, cautions, inhibitions and restrictions, etc.
(r) L. T. Rules, 1903, r. 95.
A purchaser of land registered with an absolute title need not make any searches outside the register ; but in the case of a possessory or qualified title must, as regards the interests unaffected by registration, make the same searches as if the land were unregistered.
Under L. T. Rules, 1903, rr. 289 - 293, official searches of all matters on the register can be made, and a certificate issued. Also a search can be effected by telegram.
A purchaser is not affected with trusts or beneficial interests not protected on the register (s), and which, in the case of a possessory title, are not prior to first registration.
Trusts and equities.
Nor is a purchaser concerned with succession or estate duty unless it is noted on the register, or in the case of possessory or qualified titles the liability to duty is paramount to the registered title (t).
The most important provision affecting a purchaser is s. 16 of the L. T. Act, 1897, which prescribes the evidence of title, which, according to the quality of title registered, he is authorised to require.
Title required in the ease (if registered land.
Sub-sect. 2 provides in effect that the vendor shall, notwithstanding any stipulation to the contrary, be bound in the case of registered land to give a title on the register that will enable the purchaser to be registered as proprietor. Thus, although the land may be left on the register and the legal estate as well as equities dealt with under s. 49 of the L. T. Act, 1875, as if the land were unregistered (u), still this can only go on till a purchase occurs; the purchaser will undoubtedly insist on being placed on the register, for if he sells he will be under the obligation of giving his purchaser a title on the register.
Vendor bound to make a title on the register.
The register cannot be ignored.
(s) L. T. Act, 1875, 88. 49, 83 (1); L. T. Act, 1S97, 8. 6 (6). (t) L. T. Act, 1897, s. 13; L. T. Rules, 1903, rr. 208 - 211. (u) Capital and Counties Bank v. Modes, 1903, 1 Ch. 631 ; 72 L. J. Ch. 336.
Sub-sect. 3 limits the liability of a vendor of registered land in regard to his covenants implied under the Conv. Act, 1881, s. 7. The sub-section seems to go too far, as the covenants ought to extend to many of the matters which are by s. 18 of the L. T. Act, 1875 (as amended), declared not to be incumbrances.
Covenants for title.
As a transfer, which is executed as a deed, does not take effect under the Act until the proprietor is registered (x), it is usual to add, in the case of freeholds, the words "in fee simple " to the prescribed form of transfer. However, these words will only be of service if the proprietor has power to convey the land off the register.
Additions to form of transfer.
After ascertaining that the register is clear, the purchaser, to protect his contract, should shortly before completion lodge a priority notice (y), otherwise, when he comes to complete, he may find that a disposition has been registered which prejudices his rights under his contract.
Priority notice to protect contract for sale of registered land.
(x) L. T. Act, 1875, ss. 29, 34.
(y) L. T. Rules, 1903, r. 117.