Jul 1, 1990
The Cambridge Law Journal
Overreaching, as the doctrine is now understood, is the process whereby a purchaser of property takes it free from any interests or powers, which attach instead to the proceeds of sale. Dispositions of trust property and conveyances by mortgagees, by personal representatives and under an order of the court may all overreach equitable interests. A lease granted by a mortgagor may overreach the rights of the mortgagee. This article is concerned primarily with dispositions of trust property and in particular those by trustees for sale of land. It seeks to demonstrate that the concept of overreaching is wider than is supposed. Two principal arguments are advanced. The first is that overreaching is a necessary concomitant of a power of disposition. A transaction made by a person within the dispositive powers conferred upon him will overreach equitable interests in that property, but ultra vires dispositions will not, and the transferee with notice will take the property subject to those interests. The second argument is that the draftsman of the 1925 property legislation fully appreciated the true nature of overreaching, and attempted to employ it as an essential part of his scheme for the facilitation of conveyancing. His intentions have not been appreciated in practice, and his carefully constructed scheme has been misapplied. The article considers critically recent proposals for reform from the Law Commission, and in particular the emphasis which those proposals give to the protection of the rights of persons in actual occupation. It will be suggested that reform might be more effectively achieved by employing the essentials of the scheme constructed by the draftsman of the 1925 legislation.