When registering an easement that is expressly granted or reserved out of a registered title, the grant or reservation will only operate at law if the registration requirements under s.27(1) of the Land Registration Act 2002 are met.
If the requirements were not met, it was formerly the practice of the Land Registry, in respect of agreed notices, to add a note to the entry in the following form:
“NOTE: The grant or reservation of the rights…has not been completed by registration in accordance with section 27 of the Land Registration Act 2002 and so does not operate at law.”
Since 1st September 2015, the Land Registry has discontinued its practice of adding the above note. The practice has been discontinued for the following two reasons:
First, it is possible to determine whether a notice has been completed by registration without such a note. The Land Registry has advised that one should first look at the notice entered in respect of the burden of the easement. If the only entry that has been made is a unilateral notice then the grant or reservation has not been completed by registration. If it is not a unilateral notice and the dominant land is registered, then the register will identify if the easement is included in the registered title. If absent, then the grant has not been completed by registration. If the dominant land is unregistered, practitioners will need to apply for a copy of the form of application that gave rise to the entry. If the application that gave rise to the entry was in form AN1, then the notice is an agreed notice and the grant or reservation has not been completed by registration.
Secondly, the Land Registry was concerned that that the absence of the note was potentially misleading if it was relied upon by practitioners as a guarantee that the grant or reservation of the easement had been properly completed by registration, but this was not in reality the case.
Discontinuance of the practice by the Land Registry reinforces the importance of practitioners carrying out their own enquiries on the relevant dominant and servient titles to establish if the statutory regulation requirements have been met. This is doubly so if the easement is a registrable disposition.
Elizabeth Dwomoh / 1st Oct 2015
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