2017-03-03 16:11

这一决定并不是改革委员会所建议的压倒一切的利益,而是议会决定废除过时的权利,并制定两个处理压倒一切利益的时间表。附表1交易的利益仍然是有约束力的,其中包括实际占用。因此,似乎讨论的问题仍然是非常真实的,但附表3涉及限制在附表1列出的某些压倒一切的利益,其中之一是实际的职业利益。对成功的讨论而言,最重要的局限在于那些已经进行了调查,而个人没有透露的人;那些在仔细检查中没有明显职业的人。因此,这将导致与chhokar [ 9 ]的情况下明显的问题,柴郡的家[ 10 ]和蒂泽德[ 11 ]因为在销售咨询点没有实际占有明显的证据。在公平的利益对Chhokar案可能有相同的结果作为2002年后买卖双方均涉嫌欺诈没有Chhokar夫人的知识,而她在度假房子卖了;但是在正常情况下,如果买方没有欺诈的动机和丈夫隐藏她的职业这将导致一个不公平的根据新的法律。这就造成了2002法和实际占有权的重大问题。以及确保法律是可预见的,即法律就像一面镜子,像案件一样的治疗和结果。 因此,实际法律试图处理法律委员会建议的变化,以及考虑注册所有利益的问题。相反,被推翻的利益的数量已经减少,它提供了一种方式,随后的买家和债权人没有绑定。关于实际占有的概念,法律已被定义,即如果占有不明显,在合理的勘探财产没有占有。这一想看V柴家公司[ 12 ],这引起了一个有趣的问题是有趣的,因为上诉认为,有可能是空置的土地实际占有的法院;然而,如何探索闲置土地和找到一个合理的情况呢?这个决定被上诉法院是违背上帝抵抗军的2002,这是其成立前。法律改革试图平衡利益压倒一切的问题,但这是否足以保护买方和那些对房地产有利的人?


The decision was made not reform overriding interests as suggested by the law commission, rather parliament decided to phase out archaic rights and create two schedules dealing with overriding interests. Schedule 1 deals with overriding interests that will remain to be binding, which includes actual occupation. Therefore it seems that problems discussed are still very real; however Schedule 3 deals with the limitations on certain overriding interests listed in Schedule 1 and one of these are the actual occupation interests. The limitations that are most important to this discussion on the interest succeeding are in respect to those where inquiry has been made and that individual has failed to disclose; and those individuals who are not in obvious occupation on careful inspection. Therefore this would cause significant problems with the cases of Chhokar[9], Cheshire Homes[10] and Tizard[11] because at the point of sale and enquiry there was no obvious proof of actual occupation. The case of Chhokar in the interests of equity may have the same outcome post-2002 as both the seller and buyer were acting fraudulently to sell the house without Mrs. Chhokar’s knowledge whilst she was on holiday; however under normal circumstances if the buyer was without fraudulent motive and the husband had hidden her occupation this would result in an inequity under the new law. Therefore this will cause major problems with the 2002 act and the rights of actual occupation. As well as ensuring that the law is predictable, i.e. the law is like a mirror, like cases equal like treatment and outcomes.

The actual law therefore has tried to deal with the suggested changes of the Law Commission, as well as considering the problems with registering all interests. Rather the numbers of interests that override have been reduced and it provides a manner in which subsequent purchasers and creditors have not been bound. In respect to the notion of actual possession the law has been defined, whereby if possession is not apparent on a reasonable exploration of the property there is no possession. This would be interesting if one considers the case of Malory v Cheshire Homes Ltd[12] this has caused an interesting problem, because the Court of Appeal held that there could be actual possession of vacant land; however how can one explore vacant land and find a reasonable circumstances of possession? This decision by the Court of Appeal is contrary to the LRA 2002, which was prior to its inception. The law reform has tried to balance out the problems with overriding interests, but is it enough to protect the buyer and those persons whom hold beneficial interest in property?