The Registration of Rights

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The Registration of Rights

Postby Conveyancer » Wed Feb 15, 2006 2:08 pm

The title to registered land may not tell the whole story so far as easements are concerned. The land may have the benefit of easements that are not shown on the register and may be subject to easements that are not shown on the register; in either case the lack of notice on the register does not stop them taking effect even if you do not know about them.

An “easement” is a right enjoyed by one property over another; it is not personal, but continues when properties change hands. Common easements include: rights of way, rights for services and rights of light.

The “dominant land” or “dominant tenement” is the land which has the benefit of an easement. The “servient land” or “servient tenement” is the land over which the easement is exercised.

An “overrididing interest” is a term used exclusively in connection with registered land; it means a right that is not entered on the register, but nevertheless is binding on the owner of the land. Overriding interests are many and various and include easements. Once an overriding interest is noted on the register it ceases to be an overriding interest, but remains binding. One of the reasons for overriding interests is that when a property is first registered it may not be possible by the usual investigation of title to discover all the rights that affect a property. Another is that once a property is registered rights may be acquired by prescription (long user) or by having occupation of the property.

When it comes to the need for registration of easements, there are four possibilities:

1. An easement enjoyed by unregistered land over other unregistered land.
2. An easement enjoyed by registered land over unregistered land.
3. An easement enjoyed by unregistered land over registered land.
4. An easement enjoyed by registered land over other registered land.

In case 1 no registration is necessary or possible.

In case 2 a note of the benefit of the easement may be made on the title of the dominant land, but no registration is necessary or possible in respect of the title to the servient land.

In case 3 there are three possible situations:

The first is that the easement existed before the servient land was registered. In that case the right will be entered on the register of the servient land if its existence is shown on the title produced to HM Land Registry. If the right is not apparent from the title it will operate as an overriding interest.

The second is that the easement was created by deed after the servient land was registered. In that case the right must be “perfected” by registration against the title of the servient land. If the right is not registered it will not bind any subsequent owner of the servient land.

The third is that the easement was acquired or is in the course of being acquired by prescription. In that case the easement operates as an overriding interest and will bind successive owners of the servient land. Once the right “ripens” into an easement application may be made for it to be entered on the register of the servient land. If HM Land Registry think you have a good case, but have doubts, they may simply note on the register of the servient land that the right is claimed.

In case 4 there are also three possible situations:

The first is that the easement existed before the servient land was registered. In that case the right will be entered on the register of the servient land if its existence is shown on the title produced to HM Land Registry. If the right is not apparent from the title it will operate as an overriding interest. The right may be entered on the title to the dominant land according to whether or not it came to HM Land Registry’s notice at the time the dominant land was first registered.

The second is that the easement was created by deed after the servient land was registered. In that case the right must be “perfected” by registration against the title of the servient land. If the right is not registered it will not bind any subsequent owner of the servient land. The benefit of the easement will be noted on the register of the dominant land.

The third is that the easement was acquired or is in the course of being acquired by prescription. In that case the easement operates as an overriding interest and will bind successive owners of the servient land. Once the right “ripens” into an easement application may be made for it to be entered on the register of the servient land. If HM Land Registry think you have a good case, but have doubts, they may simply note on the registers of both dominant land and the servient land that the right is claimed.

HM Land Registry do not always note “obvious” easements on a title, for example rights of way over estate roads.

The absence of any form of registration of easements in respect of unregistered land does not in any way affect their validity; once they come into existence they continue until legally extinguished.

For the record the above deals with what are referred to as legal easements only; equitable easements are subject to different rules. In practice most easements will be legal easements.
Conveyancer
 
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