Land registration and Property rights
The register kept at HM Land Registry shows the true state of the title. The property register – this describes the estate in land which is registered (i.e. freehold or leasehold), identifies the property by a short verbal description (e.g. its postal address), and shows the physical area of the land which is the subject of the registration, usually by reference to a plan. A copy of the plan is supplied with the official copies of the Register entries.
The proprietorship register – this states the class of the title which is registered (title absolute in this case), and provides the name(s) and address(es) of the registered proprietor(s). The charges register this contains details of charges or incumbrances that currently affect the title. Here will be found a note of the burden of easements and covenants that bind the land. Details of mortgages of the land are also found on the charges register.
This document was created under the Land Registration Act 1925 (LRA 1925). Prior to the Land Registration Act 2002 (LRA 2002), the LRA 1925 governed the system of registered land in England and Wales. The LRA 1925 provided for the registration of title to the legal estates in land, as well as for the registration of title to certain legal interests.
In this case, "land" includes all of the freehold land shown edged with red ink on the filed plan. Under s205(1)(ix) Law of Property Act 1925, "land" includes:
Given that the definition of land includes mines and minerals, entry (2) on the Property register has been included specifically to exclude mines and minerals from the sale of Spring Cottage. Also, since the right to pass over the land tinted brown on the filed plan is included in the sale (i.e. the benefit of the easement), this is expressly mentioned in the Property register.
The legal definition of land includes the plants growing on the land and any other thing that is actually fixed to the land. Somewhat surprisingly, however, any other item that is fixed to the land (i.e. a fixture) is also included in the definition of land. Fitted wardrobes and windows, for example, are also fixtures and therefore form part of the land.
Entry (4) on the Property Register creates an easement. An easement is a right over one piece of land (the "servient tenement") existing for the benefit of another piece of land (the "dominant tenement"). To create a legal easement, the grant or reservation must be by deed and the easement must be equivalent to (i.e. not granted for longer or shorter than) an estate in fee simple in possession or a term of years absolute. Where the land has a registered title a legal easement should be registered on the Charges register of the servient tenement (s38 and Sch 2, para 7(2)(a) LRA 2002), i.e. the register of Stephen Byng's property. Similarly, the benefit should be registered in the property register of the dominant tenement (s27(2)(d) LRA 2002), i.e. that of Spring Cottage.
If the easement had not been mentioned in the register, yet was granted in writing, then it would remain as an equitable easement as opposed to a legal easement (s2 LP(MP)A 1989 & now s27(1)LRA 2002). Equitable easements arise in circumstances where there has been a failure to observe the formalities necessary to create a legal easement, or if an easement is granted which is not equivalent to either a fee simple or a term of years absolute (e.g. one granted for life). As mentioned above, the creation of a legal easement out of registered land must be completed by the entry of a ‘notice' in respect of the relevant burden in the registered title of the servient owner and by registration of the benefit in the register of title of the dominant owner. Furthermore, under s29(1) LRA 2002, an easement over registered land whose express grant is not completed by registration can never ‘override' further registered dealings with the land.
A lease is an interest in land for a fixed period of certain duration usually granted in consideration of the payment of rent. To be a lease the tenant must have been granted exclusive possession of the premises.
Leases may be fixed term or periodic. The tenant will acquire a periodic tenancy, the period depending on the period over which he paid his rent. Furthermore, leases may be legal or equitable. To be capable of existing as a legal estate a leasehold interest must be "a term of years absolute" (s1(1) Law of Property Act 1925). Certain formalities must also be observed for a lease to be a legal lease: it must be created by deed (s52(1) LPA 1925 and s1 Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989)) unless it falls within s54(2) LPA. Section 54(2) LPA provides that a lease which:
It should be noted that a deed is always necessary to effect a legal assignment of a lease even if the lease itself has been created informally under s54(2) LPA 1925.
A lease that has not been created by deed and is not within s54(2) LPA 1925, may take effect as an equitable lease (in effect as a contract to create a lease) provided that it :
A lease is a contract between lessor and lessee. The privity between successors in title is known as "privity of estate."
A lease must be for certain duration, not for an indefinite period of time. If certainty of duration is lacking, the lease cannot take effect for that uncertain period but, if all other essential characteristics of a lease are present, it may take effect as a tenancy at will and then be converted to a periodic tenancy (if rent is paid periodically).
A licence does not create an interest in land.
The lease noted here is for a fixed term of 25 years. If the lease is to take effect as a legal estate, it must be created by deed (s52(1) LPA 1925). Therefore, in order to create a legal estate, the lease should be signed, witnessed and delivered (at least by the landlord).
There is no legal restriction on one party to a document being a witness to the other party's signature, but an independent witness is preferable in the event that the validity of the lease was challenged in court.
If any of these formalities are not observed, the lease may take effect as an equitable lease (see above)
Following the introduction of LRA 2002, leases granted for a term of more than 7 years must be registered with their own separate title number. If the lease is granted out of a reversion with a registered title (as is the case in this scenario), the grant of the lease amounts to a "dealing" with the registered title and the lease must be registered with its own title as well as being noted on the reversionary title.