Most third party rights that bind an owner of the land will be registered in the Charges Register of the  title to the land.  There are however, a class of rights over the property that benefit other parties and are enforceable against the owner of the land, which are not registered on the title to the land.  These are Overriding Interests. Not only are these rights not noted on the title to the land, but they are often not readily discoverable on inspection of the land, alone. Typical examples are the rights of an occupier, a lease with a term of less than 7 years, ‘profits à prendre’ (for example, fishing rights, shooting and hunting rights).  

The effect and existence of these Overriding Interests was reduced by the 2002 Land Registration Act (‘the 2002 Act’). Under the 2002 Act, the circumstances in which Overriding Interests can exist, were reduced in several ways:

• The withdrawl of overriding status to certain rights, these included the rights acquired by squatters under adverse possession.

• Phasing out the overriding status of some rights over a period of 10 years.  These included the ancient rights of franchises, manoral rights, crown rents, rights concerning embankments and sea walls, corn rights and chancel repair rights.

• Narrowing and imposing further clarification of the scope of some categories of rights that remain overriding interests.

• The requirement that any overriding interest that comes to the knowledge of the buyer or any other party with an interest on the land is to be entered onto the Title Register.

• All Sellers of land have to declare any overriding interest of which they are aware.

Fourteen existing categories of Overriding Interests remain after the 2002 Act, with the addition of a futher category (the ‘Public Private Partnership’ lease relating to London Underground Transport arrangements).

Restrictions were placed on the enforceability of  three of the categories (legal easement and profits,  rights of people in actual occupation and short leases ( seven years or less) ) depending on whether the title was the subject of first registration or  a subsequent registrable disposition for valuable consideration. 

Examples of Overriding Interests:

Short Leases– Where the term is for seven years or less.  A notice of the lease should be entered on to the title out of which it has been granted.  There are however leases that cannot be overriding interests even though the term is for seven years or less, these include:

(a) a reversionary lease granted out of unregistered land to take effect in possession more than three months after the date of the grant of the lease (this is new and they are excluded because they may be difficult to discover)

(b) a lease granted out of an unregistered legal estate under the right to buy provisions of Pt V of the Housing Act 1985 (there is no change here from the previous law)

(c) a lease granted by a private sector landlord out of an unregistered legal estate to a person who was formally a secure tenant and has a preserved right to buy under the Housing Act 1985 (again there is no change here from the previous law.

Interests of Persons in Actual Occupation -  This is ‘an interest belonging to a person in actual occupation, so far as it relates to land of which he is in actual occupation, except for an interest under a settlement under the Settled Land Act 1925.’   Under the 2002 Act the previous sub-category of those not in occupation but who are in receipt of rents and profits was excluded.

The right of occupation burdens the whole of the land, however, the occupier’s rights of occupation are confined only to that part of the property in which he is actual occupation.  In the case of registered land, the occupiers right of occupation is not enforceable where the buyer has made enquiries of the occupier and the occupier does not disclose their right.

An occupier’s right of occupation will not be protected if their occupation is not obvious on a reasonably careful inspection of the property and the buyer does not have actual knowledge of the occupier’s occupation of the land. This means that:

1. It is the occupier’s occupation that must be apparent and not their interest.
2. The test is not one of constructive notice of the occupation, it is that occupation should be obvious on any reasonably careful inspection of the land.
3.  Even if a person’s occupation is not apparent, the exception does not apply where a purchaser has actual knowledge of the occupation.

Legal Easements and Profits á Prendre -Under the 2002 Act  the only legal easements and profits ā pendre  can do so can take effect as overriding interests.

Historically, Easements and Profits á Prendre were difficult for a purchaser of land to discover, (especially as a non-user of an easement or profit, even for many years, failed to raise any presumption of abandonment).

The only legal easements and profits that will be capable of being an overriding interests after the advent of 2002 Act will be:

1. Those already in existence when the 2002 Act came into force ( that have not been registered); (those granted after the 2002 Act must be registered on the title).
2. Those arising by prescription
3. Those arising by implied grant or reservation under s62 of the Law of Property Act 1925.

They must be:

1. Registered under the Commons Registration Act 1965; or
2. Such that the buyer of the land actually knows about it; or
3. Obvious on careful inspection of the land; such that no seller would be obliged to disclose it.
4. The easement or profit was exercised within one year before the purchase of the land..

Customary and Public Rights - Public rights are those rights that are exercisable by anyone, whether they own land or not.  Customary rights are those rights which were enjoyed by inhabitants of a particular locality, many of which still survive.  Examples of a customary right include holding a fair or wake on wasteland grazing animals on common land.

Local Land Charges – These are governed by the Local Land Charges Act 1975 and are discoverable  by searching the computerised records  such as National Land Information Services and will be listed in the results of a Local Authority Search obtained from the Local Authority.

Mines and Minerals-  These are the rights of another party to the mines and minerals under the property. The party with the benefit of the right will have a right to enter the land and extract the minerals.  There is an implied obligation to repair any damage caused in exercising this right.

At iconvey, we are specialists in conveyancing and Property Law with  many years of experience.   Our experienced and knowledgeable conveyancers  are always at hand keeping  you informed every s