Overriding interests are protected interests that do not have to be disclosed on the Land Register in order to be enforceable.
Section 117(2) of the Land Registration Act 2002 provides that the following interests will no longer have overriding protection from midnight of 12 October 2013 (although they will continue to bind the existing owner of the land until the land is sold):
1. Franchises;
2. Manorial rights;
3. Crown rents;
4. A non-statutory right in respect of an embankment or sea or river wall;
5. Corn rents; and
6. Chancel repair liability.
As a result, if these interests have not already been noted on the Register, the beneficiary will be required to apply to Land Registry before 13 October 2013 by way of either:
(i) Where the land is registered, a notice in the register; or
(ii) Where the land is unregistered, a caution against first registration;
in order to protect their interest. If these applications are made before 13 October 2013, no fee will be charged.
These interests will continue to be overriding after 13 October 2013 but only until the land is sold or (for unregistered land) the land is registered for the first time. As such, applications to protect these interests can be made after 13 October 2013 but only if the land has not been sold or registered after this date. It is likely that a fee will be charged for applications made after 13 October 2013.
A. The interests that will cease to be overriding
1. Franchises
A franchise is a right granted by the Crown, such as the right to hold a market or fair on a specific area of land. The beneficiary does not own the land or have a lease or licence over the land.
After 13 October 2013 the beneficiary will be able to apply to register the franchise in its own right. However, the franchise should also be noted on the title for the land.
2. Manorial Rights
A list of manorial rights was set out in the in Schedule 12 of the Law of Property Act 1922 and includes:
(i) The right to mines and minerals;
(ii) The right to construct and maintain dykes, ditches and canals;
(iii) The right to hold markets and fairs;
(iv) A Lord’s sporting rights; and
(v) A Tenant’s right of common (for example, the right to graze sheep, the right to fish and the right to take wood for fuel).
3. Crown Rents
Crown rent is any rent payable that was reserved by the Crown when the Crown granted a freehold estate. This interest can be noted on the title whether the rent is still payable to the Crown or to another beneficiary.
4. Non-statutory Rights in Respect of an Embankment or Sea or River Wall
This is where a land owner is obliged to maintain an embankment or sea or river wall that abuts their property (this liability is very rare). It is for the beneficiary of this interest (this will most likely be the Crown) and not the land owner to apply for the interest to be noted on the Register.
5. Corn Rents
Corn rents are a monetary payment, which were historically connected to the price of grain. These were most commonly paid to the Church Commissioner; however, they are now rarely enforced.
6. Chancel Repair Liability
Chancel repair liability requires a land owner to contribute towards the maintenance of the chancel of a parish Church. It is advisable that a land owner potentially liable to such a contribution takes out a Chancel Indemnity Policy. It will be clear from the title for anyone purchasing land on or after 13 October 2013 whether an Indemnity Policy is necessary because any liability will have to be noted on the title to be enforceable.
B. The types of application that can be made to protect these interests
The types of application required to protect these interests after 13 October 2013 will vary depending on whether the interest is held over registered or unregistered land.
Registered Land
There are two types of notice that can be entered on the title of registered land; a unilateral notice and an agreed notice. Both notices afford the same level of protection; however, there are differences in how the notices are registered and how they can be removed from the title.
1. Agreed Notice
An agreed notice can only be entered on the register if the land owner has consented to the notice or if the beneficiary of the interest can prove the validity of their interest. The Land Registry is not obliged to notify the owner of land when an agreed notice is entered onto the Register.
An agreed notice can only be removed from the Register if it is proven that the interest has expired or is otherwise invalid.
2. Unilateral Notice
A unilateral notice can be applied for by the beneficiary of the interest without the consent of the land owner. It is, therefore, quicker and easier to register than an agreed notice.
However, the owner of the land will be notified when a unilateral notice has been registered. The land owner can then apply for a unilateral notice to be removed at any time. At that point, the beneficiary of the interest will have to be able to prove the validity of their interest to continue to have their interest protected. As such, it is also easier for a unilateral notice to be removed from the Register.
Unregistered Land
The only protection that can be applied for in relation to unregistered land is a caution against first registration. This means that if anyone applies to register the land, the beneficiary of the interest will be notified. This provides the beneficiary with an opportunity to have their interest noted on the registered title.
It is, however, important to note that if an application for caution against first registration is made without reasonable cause, the applicant will be liable to compensate anyone who suffers damage or is adversely affected by the application.
Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.
For further information, please contact Andy Parker at
