On the 13th October 2003 the Land Registration Act 2002 came into force. One of its primary purposes was to simplify the registration of land which was originally devised some 85 years previously by the Land Registration Act 1925. According to the 2002 Act any disposition of unregistered land must now be registered
The aim of the Land Registry is for the registered title to accurately reflect all the interests affecting the land. Therefore the register should show a ‘mirror image’ of the burdens and interests affecting the land in question. However, since registration of land was first introduced there have always been certain interests which do not need to be displayed on the register. These are known as overriding interests and a purchaser takes subject to these interests.
It seems since the 1925 Act the Government has been keen to reduce the number of overriding interests allowed so that the Land Registry can provide a much clearer and accurate picture of the rights and encumbrances affecting a title. The 2002 Act significantly reduced both the scope and number of overriding interests. Some may question why overriding interests have not been made completely redundant; however, the Law Commission have realised that some interest in land should continue to receive overriding status. An example of such an interest would be rights of those in actual occupation of the property. Due to the informal and fast paced nature of modern day relationships a requirement for registration of people living in a household would be highly impractical.
However, this has not deterred the Government from further reducing the number of overriding interests. From midnight on 12 October 2013 the following interests will lose their overriding status and effect unless they are protected by the entry of notice or restriction on the register:
- Repair of a church chancel. This is an old remnant of Ecclesiastical law stemming from Henry VIII and holds that a Landowner is responsible for repairing the chancel of the church. Although the Church of England very rarely enforce such a right, a recent case in 2003 which went to the House of Lords resulted in a couple paying £200,000 for church repair bills due to the overriding interest attached to their property.
- Manorial rights. Manors are of ancient origin dating from before Norman times. The Lord of the Manor often had rights attached to the land e.g. shooting and fishing, which he retained even after sale. Since 2003 it has not been possible to register title to lordship of the manor upon first registration, instead the Lords manorial rights were given overriding status for a period of 10 years.
- Franchise rights. A franchise does not grant the holder ownership of the land but conveys upon them a right to use the land in a specific way. A common example of a franchise is the right to hold a market or fair. It is usually granted by way of charter or letters patent from the Crown.
- A right to payment in lieu of Tithe. A Tithe is yet another example of an ancient custom where church parishioners made an annual payment of an agreed portion of the yearly produce of the land to the church. Legislation was passed to either abolish the tithes or substitute a fixed money payment known as a corn rent. Corn rents are thought to be the only existing type of tithe that may be used today, although even these are especially rare and no longer enforced.
- Other overriding interests that are to be lost are the non statutory rights in respect of an embankment or sea or river wall. Due to the fact that almost all of this area is now governed by legislation, the right is arguably superfluous and outdated. There will also be the abolition of a right to rent that was reserved to the crown on any freehold estate.
These interests can be protected before 2013 without payment of a fee, by caution against first registration of title, where title to the affected land is unregistered. This entitles the cautioner to be notified when there is a registration of the land in question so that they can object to the removal of the overriding interest. However they must be able to show that their objection is reasonable and that they would be significantly harmed from the removal of such an interest.
If the land is already registered an application can be made to the Land Registry to place the existence of the interest on the property register. Any subsequent purchasers of the land will have notice of the interest and take the property subject to it. However, placing a notice on a registered title does not guarantee that the right exists or is enforceable.
It should be noted that if such interests are not protected by a notice or caution against first registration before 12 October 2013 then they do not automatically cease to exist on that date. When land is unregistered the overriding interest will continue to exist until an application for first registration is made. If a caution against first registration has not been lodged with the Land Registry then the overriding interest will not bind the owner of the land after registration. If the land is registered, the overriding interest will continue to exist after 12 October 2013 even if a notice has not been placed on the register. However if the property is subsequently sold then the purchaser will take free from the overriding interest unless a notice has been placed on the register.
It can therefore be seen that the overriding rights that are being removed in 2013 are relics of a bygone era which arguably do not conform in the modern world and have had very little recent application. However, in the relatively short time that is left there is an opportunity to protect these overriding interests and prevent them from complete consignment to the history books.
For additional information please contact Edward Worthy on 01245 228124 or firstname.lastname@example.org
The above is not legal advice; it is intended to provide information of general interest about current legal issues.