The Land Registration Act 2002 (LRA) came into force in October 2003. Some of the requirements introduced by the LRA relating to registration and noting of easements have caused confusion. The Land Registry is currently reviewing this area and it is anticipated that further guidance will be made available. Set out below are the steps to be taken in a number of different situations regularly encountered in practice. The answers refer to current Land Registry practice.

Scenario 1:

I am acquiring freehold property via a transfer of part of registered land. The Form TP1 contains rights granted over the land retained by the seller and reserves rights over the land I am acquiring. How do I ensure that the rights benefiting my property are correctly protected and how will the rights reserved over my land be protected?

Answer:

Following completion of this transaction you should submit Form AP1 and supporting documentation to the Land Registry within the priority period of your OS2 search. The Land Registry will automatically note in relevant Registers on the new title, the benefit and burden of the rights affecting that title. It will also automatically note the rights benefiting and burdening the title to the retained land out of which the transfer of part is taken (the parent title).

What would be the position if part of the retained land was contained in a title or titles other than the parent title?

Rule 72 of the Land Registration Rules 2003 (LRR) only requires the Land Registry to make automatic entries on the new title and the parent title out of which it is taken. However, in practice, the Land Registry will automatically make entries of the burden of the easements on any other title owned by the seller comprising the retained land, as, without doing this, the Land Registry would be unable to enter the benefit of the easements on the new title.

Having said that, the Land Registry will not enter the benefit of reserved easements on the other title(s) without a specific application. Consequently, where easements are reserved for the benefit of land owned by the seller, other than land falling within the parent title, the Form AP1 should include an application in respect of such title(s). It is also suggested that best practice would be to adopt this course of action in cases when it is only the burden that needs to be noted there.

Scenario 2:

What happens in Scenario 1 if the retained land is unregistered?

Answer:

Within two months of completion you should submit Form FR1 in relation to the property being acquired, to substantively register your interest in the property. The Land Registry will automatically register the benefit and burden of the rights on the new title.

It would be prudent to enter a caution against first registration (using Form CT1) against the retained land so that when it is substantively registered you can ensure that the rights granted over that land are noted on that new title.

In practice, if you have submitted a Form CT1, the Land Registry will give you notice of the first registration application and you can then object to that registration being completed unless your rights are noted on that new title. If the applicant agrees to your requirement, the registrar will note the rights pursuant to Rule 35 LRR. Alternatively, if the applicant disagrees, there will be a dispute which, failing resolution, will ultimately have to be referred to an adjudicator, under Part 11 LRA.

It would also be prudent for you to ensure that a memorandum of your sale is endorsed on the original of the last conveyance to the seller.

The above action, taken in relation to the retained land, would be a ‘belt and braces’ approach, as on first registration of the freehold interest in that land, the applicant should disclose the existence of the rights in question on Form DI.

Scenario 3:

Pursuant to a deed of grant, I am acquiring a right of way over an area of land which abuts the land I currently own. Both my land and the adjoining land are registered. How do I ensure that the rights granted are correctly protected?

Answer:

You should apply to register the rights granted in the deed of grant using Form AP1 (not Form AN1), as express easements granted out of registered land cannot override after 13 October 2003. The easement will be noted on the servient and dominant land.

You should never use Form AN1 to apply to register the benefit of an easement because this form relates to an agreed notice of the burden of incumbrances. If you used Form AN1, the easement would only be equitable in nature. In practical terms, this may not be a problem, unless the land subject to the easement is transferred and subsequently registered within a clear priority search period, before the easement is noted on the register!

Scenario 4:

What happens in Scenario 3 if the dominant land is not registered?

Answer:

You still need to apply on Form AP1 to have the right which is granted registered on the servient title, to meet the requirements laid down in s27 LRA. Failure to do this will mean that the easement is not a legal easement. It will be an equitable easement that cannot override, and accordingly will not bind a buyer for valuable consideration of the servient land.

Scenario 5:

What happens in Scenario 3 if the servient land is not registered?

Answer:

You would need to deduce title to the servient land and provide the Land Registry with the address of the freehold owner. The Land Registry will serve the freehold owner with notice of the application and if no objection is received then usually the Land Registry will register the benefit of the easement in the same way as if the servient land had been registered.

Scenario 6:

I own land that is registered and have exercised a pedestrian right of way over a defined pathway running across adjoining land (owned by a third party and also registered) for over 20 years, without payment or consent of the adjoining landowner. What should I do, if anything, to protect the prescriptive right I now appear to enjoy?

Answer:

You should make an application to the Land Registry on Form AP1 to register the benefit of the prescriptive right on your title. On the form you should indicate that the application is also to register the burden on the adjoining landowner’s title and should quote the relevant title number. You would need to produce a statutory declaration in support of your application.

The registered proprietor of the servient land will be informed and if no objection is received, a note of your right will be made in the Charges Register of their title.

Scenario 7:

What happens in Scenario 6 if my land is currently unregistered?

Answer:

You could apply for registration of the freehold interest in your land on Form FR1 and, in the application, seek to register the benefit of your prescriptive right in the Property Register of your new title.

Alternatively, you could apply on Form AN1 or Form UN1 for a note of your prescriptive right to be made in the Charges Register of the servient landowner’s title. Once again, you would need to produce satisfactory evidence of the existence of the right, by way of a statutory declaration.

Should you choose to apply on Form AN1, without the consent of the registered proprietor of the servient title (or someone entitled to be registered as such), the Land Registry requires you to deduce your title to the dominant land, so that the registrar can be satisfied as to the validity of your claim, pursuant to s34(3)(c) LRA. There would be no such requirement for a Form UN1 application.

Scenario 8:

What happens in Scenario 6 if the adjoining/servient land is currently unregistered?

Answer:

You should make an application to the Land Registry on Form AP1 to register the benefit of the prescriptive right on your title. You must produce satisfactory evidence of the existence of right, by way of a statutory declaration. You must also deduce the title to the servient land, together with the address of the freehold owner of that land.

The freehold owner of the servient land will then be informed of the application and if no objection is received the Land Registry can register the benefit of the right in the same way as if the servient land had been registered, namely in the Property Register of your title.

If you were unable to deduce title to the servient land, the Land Registry may make an entry on your title to the effect that you can claim the benefit of the right, but the entry would make it clear that the Land Registry is not guaranteeing that the benefit of that right is included in the title.

Scenario 9:

I own land which is registered and have exercised a vehicular right of way over a defined roadway running across adjoining land (owned by a third party and also registered) for over 20 years, without payment or consent of the adjoining landowner. The roadway in question is a road as defined by s192 of the Road Traffic Act 1988. What should I do, if anything, to protect the prescriptive right I now appear to enjoy?

Answer:

As in Scenario 6, you should make an application to the Land Registry in Form AP1 to register the benefit of the prescriptive right on your title.

If the servient land is registered, you should indicate on your form that the application is also to register the burden on the servient landowner’s title, and you should quote the relevant title number. You must also produce a statutory declaration in support of your application. The registered proprietor of the servient land will be informed and, if no objection is received, a note of your right will be made in the Charges Register of your title.

Once again, if you were unable to deduce title to the servient land, the Land Registry may make an entry on your title to the effect that you can claim the benefit of the right, but the entry would make it clear that the Land Registry is not guaranteeing that the benefit of that right is included in the title.

Scenario 10:

I own land which is registered and have exercised a vehicular right of way over a defined pathway running across adjoining land (owned by a third party and also registered) for over 20 years, without payment or consent of the adjoining landowner. The roadway in question is not a road as defined by s192 of the Road Traffic Act 1988. What should I do, if anything, to protect the prescriptive right I now appear to enjoy?

Answer:

You could follow the procedure laid down in the Countryside and Rights of Way Act 2000 (the 2000 Act) and apply to the adjoining landowner for a statutory easement over their land, upon payment of compensation to them.

If you have secured a right via this method, it would be prudent for you to make an application to the Land Registry on Form AP1 to register the benefit of the prescriptive right on your title. Once again, if the servient land is registered, on your form you should indicate that the application is also to register the burden on the adjoining landowners title and should quote the relevant title number.

If you have not followed the procedure laid down in the 2000 Act, then you could apply to the Land Registry on Form AP1 as above, and request that the Land Registry insert an entry on both titles indicating that you claim to have a prescriptive vehicular right over the adjoining land for the benefit of your land.

As a result of the recent decision in Bakewell Management Ltd v Brandwood [2004], the Land Registry is currently reviewing its practice in relation to the treatment of vehicular easements falling within the second category above. It may well be the case that applications relating to vehicular easements will be treated in the same way as any other kind of easement.

Scenario 11:

I am a prospective tenant taking a 15- year lease of premises, the freehold to which is registered. In the lease, the landlord is granting rights over its retained land (which also falls within that title) and reserving rights over the land to be demised under the lease, for the benefit of that retained land. What do I need to do following completion in order to ensure that the rights being granted over the landlord’s retained land are correctly protected?

Answer:

Following completion of this transaction, you should submit Form AP1 and supporting documentation to the Land Registry within the priority period of your OS2 search. The Land Registry will automatically note on the landlord’s title any right expressly granted in the lease as it is granted out of a registered title.

Scenario 12:

If the landlord’s title in Scenario 11 is unregistered, what must I do following completion to ensure that the rights being granted over the landlord’s retained land are correctly protected?

Answer:

Within two months of completion, you should submit Form FR1 and apply for first registration of the leasehold interest.

It would also be prudent for you to enter a caution against first registration (using Form CT1) against the retained land, to ensure that when it is substantively registered you can be sure that the rights granted over that land are noted on that new Register. See Scenario 2 for further information as to the procedure when there is a subsequent application to register the retained land.

The submission of a caution and the subsequent action taken would be a ‘belt and braces’ approach, as on first registration of the freehold interest in the retained land, the applicant should disclose the lease itself whilst it is still subsisting.

Scenario 13:

If I am the landlord in Scenario 11, what do I need to do to ensure that the rights retained over the demised premises are correctly protected?

Answer:

You do not need to take any action, as the rights benefiting your retained land are contained in the lease, which will, as a result of the tenant’s application, be substantively registered.

Scenario 14:

If I am the landlord in Scenario 12, what do I need to do to ensure that the rights retained over the demised premises are correctly protected?

Answer:

Once again, you do not need to take any action as the rights benefiting your retained land are contained in the lease, which will, as a result of the tenant’s application, be substantively registered.

Scenario 15:

I am a prospective tenant taking a fiveyear lease of premises, the freehold to which is registered. In the lease, the landlord is granting rights over its retained land (which also falls within that title), and reserving rights over the land demised for the benefit of that retained land. What do I need to do following completion to ensure that the rights being granted over the landlord’s retained land are correctly protected?

Answer:

It would be prudent for you to undertake an OS2 search prior to completion. Following completion, and within the priority period of that search, you need to apply to the Land Registry (using Form AP1) for the rights contained in the lease to be registered on the landlord’s freehold title. If you fail to take this course of action, although the lease itself will override, the rights contained in it will not.

Scenario 16:

What happens in Scenario 15 if the landlord’s title is unregistered?

Answer:

It would be prudent in this scenario for you to apply for a caution against first registration (using Form CT1) in respect of the rights granted. The reason for this is that although the rights granted would be protected as an overriding interest on first registration of the retained land, the category of rights that would override a subsequent disposition of the retained land is narrower.

If the retained land is subsequently registered, the procedure detailed in Scenario 2 would again be of relevance.

Scenario 17:

If I am the landlord in Scenario 15, what action, if any, do I need to take?

Answer:

The rights are express rights contained in a deed and therefore you (along with any successor landlord) can freely exercise them. No further action is needed to protect your position.

Scenario 18:

If I am the landlord in Scenario 16, what action, if any, do I need to take?

Answer:

Once again, the rights are express rights contained in a deed and therefore you (along with any successor landlord) can freely exercise them. No further action is needed to protect your position.

Scenario 19:

I am a prospective buyer taking an assignment of a ten-year lease granted in 2002. The freehold reversion is registered. In the lease, the landlord granted rights over its retained land (which also falls within that title) and reserved rights over the land demised under the lease. What do I need to do to ensure that the rights granted in the lease are correctly protected?

Answer:

Following completion of this transaction, you should submit Form FR1 and supporting documentation to the Land Registry, as the assignment of an unregistered lease having more than seven years of the term unexpired must be substantively registered. The Land Registry will automatically note on the landlord’s title any right expressly granted in the lease as it is granted out of a registered title. It will also serve notice on the proprietor of the landlord’s title before completing the application.

Scenario 20:

If I am the freehold reversioner in Scenario 19, should I be taking action?

Answer:

You do not need to take any action, as the rights benefiting your retained land are contained in the lease, which will, as a result of the new tenant’s application, be substantively registered.

Scenario 21:

If I own land with a registered title, and transfer all or part of it, but reserve rights for the benefit of other registered land which I own, do I need to take any action?

Answer:

If the rights are reserved for the benefit of other land in the same title, they will be automatically recorded on the parent title when the transfer is registered.

If the rights are reserved for the benefit of other land with a different registered title, then, if the transfer expressly refers to the title number of the land for the benefit of which the rights are reserved, the Land Registry should automatically note those rights on that title, but it would be prudent if you apply to the Land Registry using Form AP1 for the rights to be noted on the appropriate title.

In practice, the Land Registry is only likely to make an entry of the benefit of reserved easements on a title (other than that out of which the land is transferred) if the reserved easements are intermingled with those that have been granted. In the case of ‘stand-alone’ reserved easements, a specific application to note the benefit on a title other than the parent title will normally be required. It is suggested that the most convenient way forward would be to obtain an undertaking from the buyer’s solicitor to make or lodge this application on your behalf when they register the transfer.

Scenario 22:

In Scenario 21, if the retained land has an unregistered title, what do I need to do?

Answer:

The reserved rights will be protected since they will be recorded on the Charges Register of the servient title (the land transferred), and it would be prudent to place a duplicate or certified copy of the transfer deed with the title deeds of the unregistered retained land. If the retained land is registered at a future date, that copy can be included with the first registration documents, and the rights will be recorded on the new title.

Case reference

Bakewell Management Ltd v Brandwood [2004] 2 All ER 305

Kerrie Deakin is a property support lawyer in the commercial property department at Freethcartwright LLP and a principal lecturer at De Montfort Law School.  © Property Law Journal