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Checklist for the creation and registration of easements

Checklist for the creation and registration of easements This Checklist looks at how easements are created and how they must or may be registered at HM Land Registry. It includes the following key sections: • Is there an easement? • Is it capable of being a legal easement? • Has the easement been created by express grant? • Is the easement an express grant contained in a deed of grant or transfer? • Is the easement contained in a lease? • Has the easement been created by implied grant? • Has the easement been created by presumed grant? • Is the easement an equitable easement? • Is the easement an overriding interest? • Rights other than easements An application to HM Land Registry for registration of an easement may need to be accompanied by evidence of third party consents or of compliance with a restriction on title. These are not dealt with in detail in this Checklist; see Practice Notes: Mortgages and land—dealings with land subject to a mortgage or...

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Flying freeholds

A freehold estate prima facie includes everything directly beneath the surface of the land and the airspace directly above it (ostensibly without limit in either direction, although the absolute nature of this notion has been tempered in recent times). Consequently, two freeholds should not overlap. However, practitioners should be alive to the existence of a ‘flying freehold’: this is a freehold property (or part of it) which overhangs another freehold property (the latter property, which projects under the flying freehold property, is sometimes known as a ‘creeping freehold’). Today, a long lease would be granted in such a scenario, but flying freeholds (which may have been created many years previously) still crop up regularly. Examples include:•balconies•archways•part of a property above a passageway in a row of houses or above an accessway which leads to a car park area for a modern courtyard housing development•basement vaultsInspectionA flying freehold may not be obvious from the title deeds (older plans frequently do not show elevations, but instead present simply a ‘bird’s eye view’...

Overreaching by a mortgagee

Overreaching by a mortgagee Overreaching is a statutory mechanism available to a mortgagee (among others) to confer title on the buyer free from charges and encumbrances ranking subsequent to the mortgagee’s security. Overreaching is also available in receivership sales, by ensuring that the mortgagee, rather than the receiver executes the transfer of the property to the buyer. Overreaching can also occur in the context of a mortgagee taking security for repayment of a loan from the trustees of a trust. The mortgagee will be concerned that the security document granted to it by the trustee will overreach the beneficial interest of the beneficiaries of the trust. For more information, see Practice Notes: Enforcement issues for trust property and Overreaching—sales by trustees of land. Buyer’s requirements When taking an appointment, a receiver should consider the requirements of a potential buyer. Usually, a buyer will want to acquire a property free from any charges, including the charge in favour of the selling mortgagee and any other charges registered on...

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Deed of covenant (imposing new covenants on land—restrictive or positive)

Deed of covenant (imposing new covenants on land—restrictive or positive) Date [date] Parties 1 [name of Covenantor] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] (Covenantor) 2 [name of Covenantee] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] (Covenantee) 3 [[name of Mortgagee] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] (Mortgagee)] 1 Definitions In this Deed, the following definitions apply: Covenantee’s Land • the freehold land known as [description] [being [part of the land] registered at HM Land Registry with title number [title number]] [as shown [edged OR coloured OR hatched] [colour] on the Plan]; Covenantor’s Land • the freehold land known as [description] [being [part of the land] registered at HM Land Registry with title number [title number]] [as shown [edged OR coloured OR hatched] [colour] on the...

Deed of easement—right to lay and maintain a drain

Deed of easement—right to lay and maintain a drain This Deed is made on [insert date] PARTIES 1 [insert name of the owner of the Servient Land] [of [insert address] OR incorporated in England and Wales with company registration number [insert company registration number] whose registered office is at [insert registered office address]] (Grantor); 2 [insert name of the owner of the Dominant Land][ of [insert address] OR incorporated in England and Wales with company registration number [insert company registration number] whose registered office is at [insert registered office address]] (Grantee); 3 [[insert name of the mortgagee][ of [insert address] OR incorporated in England and Wales with company registration number [insert company registration number] whose registered office is at [insert registered office address]] (Mortgagee).] 1 Definitions In this Deed the following definitions apply: Dominant Land • the [freehold OR leasehold] land known as [insert details] [as registered at HM Land Registry with title number [insert title number]] [shown [edged red] on the Plan]; Plan...

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Can a landlord serve a section 25 notice under the Landlord and Tenant Act 1954 when the landlord's freehold interest has not been registered at the Land Registry (because an application for first registration which was made in 2013 by the tenant's solicitor at the time of grant of the lease did not provide details of the freehold interest).

Can a landlord serve a section 25 notice under the Landlord and Tenant Act 1954 when the landlord's freehold interest has not been registered at the Land Registry (because an application for first registration which was made in 2013 by the tenant's solicitor at the time of grant of the lease did not provide details of the freehold interest). A landlord may terminate a tenancy to which the Landlord and Tenant Act 1954 (LTA 1954) applies by giving notice in the prescribed form specifying the date at which the tenancy is to come to an end, in line with the provisions of LTA 1954, s 25 (commonly referred to as a section 25 notice). LTA 1954, s 25(2) provides that a section 25 notice will not have effect unless it is given not more than 12 and not less than six months before the specified termination date, meaning that at least six months’ notice must be given. The date of termination must not be earlier than (for a periodic tenancy)...

Can a tenant obtain an easement by prescription (other than a right to light) over land owned by its landlord?

Can a tenant obtain an easement by prescription (other than a right to light) over land owned by its landlord? There are a number of general rules which apply to all three ways in which an easement can be established by prescriptive user (see Practice Note: Acquisition of easements by long use, in particular sections titled 'User as of right' and 'Continuous enjoyment'). It is often said that there is another particular rule, which applies generally to all types of prescription: that, the user must be by or on behalf of a fee simple owner against a fee simple owner (see Bright v Walker). This rule has two consequences. First, it is not legally possible for a tenant to prescriptively acquire an easement for (limited) a term of years; it is only possible to acquire an easement in fee simple (ie in perpetuity). Secondly, it is not legally possible to acquire an easement against a tenant of land which does not adversely affect the freeholder...

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Property Disputes weekly highlights—3 October 2024

This week's edition of Property Disputes weekly highlights includes: commentary on the Renters’ Rights Bill, High Court decisions on an expert determination clause and possession against protestors, County Court cases involving a trustee’s application for a declaration as to beneficial ownership and an application for permission to bring a claim without a named defendant pursuant to CPR r 8.2A, and an Upper Tribunal decision on strike-out of a case in the First—tier Tribunal.

Adverse possession—successive periods of occupation and fencing/grazing (Haandrikmann v Heslam)

Property analysis: The Upper Tribunal (UT) considered how accrued possessory rights can pass from one squatter to another. In dismissing the appeal, it rejected Mrs Haandrikman’s arguments that, in this case, such rights had not passed to Mr Heslam. In so finding, Judge Cooke explained and applied Site Developments (Ferndown) Ltd v Cuthbury Ltd [2010] EWHC 10.