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LAND REGISTRY INFORMATION

[Protecting manorial rights and chancel repair liability at Land Registry

A Land Registry lawyer explains what needs to be done by, or on behalf of, those with the benefit of these rights in light of the loss of overriding interest status from 13 October 2013

Introduction

Essentially, 'overriding interests' are third parties' interests in land that can bind a purchaser of that land even though the rights are not mentioned in the register of title kept by Land Registry, and even though the purchaser does not know about them.

Some of these interests in land, or proprietary rights, will lose their status as overriding interests at midnight on 12 October 2013 as a result of section 117(1) of the Land Registration Act 2002, including a 'manorial right'.

Furthermore, by virtue of the Land Registration Act 2002 (Transitional Provisions) (No 2) Order 2003, 'a right in respect of the repair of a church chancel' was added to the list of overriding interests in Schedules 1 and 3 to the Land Registration Act 2002 but only for a period of 10 years from the coming into force of the Act, so chancel repair liability will also lose its overriding status at the same time as manorial rights.

All the statutory provisions referred to in this article are from the Land Registration Act 2002, unless otherwise stated.

What are manorial rights

The joint Law Commission and Land Registry report containing the Bill that eventually became the Land Registration Act 2002, Law Com 271, paragraph 8.41, explained that the meaning is 'a precise one', namely, the rights of the lord of the manor in respect of copyhold land, or of the copyhold tenant, which were preserved on the enfranchisement of copyhold.

According to this report, a 'comprehensive statement' of these rights was set out in paragraphs 5 and 6 of Schedule 12 to the Law of Property Act 1922, which means that they include:

  • the lord's or tenant's rights to mines and minerals
  • the lord's sporting rights, and
  • the lord's right to hold fairs and markets.

The first of these are likely to be the most important type of manorial right in terms of potential value and are the ones concentrated on in this article.

What does losing overriding interest status mean

It means that:

  • on first registration of title to an estate in land, the registered estate will vest in the proprietor free of the rights unless they are made the subject of an entry in the register
  • on registration of a transfer or other disposition of a registered estate in land to a purchaser for valuable consideration, the purchaser will take free of the rights unless they have been protected by a notice.

Why are these rights losing their overriding interest status

Referring to manorial rights among other rights, Law Com 271, paragraph 8.85, explained:

It was clear from many of those who responded to the Consultative Document that they wished to see the abolition of a number of categories of overriding interests, given their troublesome nature. There was a strong feeling that, if it was not possible to do so immediately, we should at the very least consider the phasing out of these overriding interests over a period of years in the alternative. The reduction in the number of overriding interests would be a significant step towards a conveyancing environment in which title can be investigated on line with the minimum of additional inquiries.

At paragraph 8.88, it said of these rights that were to lose their overriding status:

"All are relics from past times and are of an unusual character. Most of them can no longer be created. Those who have the benefit of such rights ought to be aware of them. These characteristics make them obvious and sensible candidates to be phased out. If such rights are to bind those who acquire registered land, they should be protected on the register."

Law Com 271 was not, however, including chancel repair liability when referring to the phasing out of these 'relics from past times' as overriding interests. The report was written shortly after the decision of the Court of Appeal in Aston Cantlow Parochial Church Council v Wallbank [2001] EWCA Civ 713 in which it was held that chancel repair liability contravened the European Convention on Human Rights and so was unenforceable. As a result, Law Com 271 stated that it was "unnecessary ... to say any more about this" category of overriding interest under the Land Registration Act 1925.

However, the decision was subsequently overturned in the House of Lords; this is what led to the 2003 Order referred to at the start of this article, which effectively added chancel repair liability as an additional overriding interest. But it was added only for a period of 10 years, the reasoning being presumably that chancel repair liability shares some of the same characteristics as those overriding interests being phased out by section 117(1) (characteristics which are identified in Law Com 271, paragraph 8.35).

What can be done to protect the rights

Caution against first registration

Where the affected land is still unregistered, the person with the manorial rights, or the parochial church council/Representative Body of the Church in Wales, can apply in form CT1 for a caution against first registration.

A caution against first registration entitles the cautioner to be given notice by Land Registry when there is an application for first registration affecting the land concerned. On receipt of the notice, the cautioner can then object to the application proceeding without a notice being entered in respect of the manorial rights or chancel repair liability.

Unilateral or agreed notice

Where the affected land is registered, the person with the manorial rights, or the parochial church council/Representative Body of the Church in Wales, can apply in form UN1 for entry of a unilateral notice, or form AN1 for entry of an agreed notice.

No fee

No fee is payable for an application to lodge a caution or for entry of a notice if the application is made before 13 October 2013 (section 117(2)). If made on or after that date, the usual fee for a caution or notice is payable (currently, the fee is £50 for both applications).

Limited nature

Neither a caution nor a notice confers any validity on the interest being claimed. They are simply ways of protecting the priority of interests in the event that the interests are valid.

What evidence is required by Land Registry

Caution against first registration and unilateral notice

Form CT1 requires identification of the nature of the interest claimed and the land concerned. Form UN1 requires identification of the nature of the interest claimed and who is to be named in the entry as the beneficiary of the notice. In neither case is there any requirement for the lodging of evidence in support of the interest claimed. If the application is in respect of manorial rights, it should specify what the rights are.

Agreed notice

In the absence of the registered proprietor's consent, the application must be accompanied by sufficient evidence to satisfy the registrar of the validity of the applicant's claim (see 4.6.3.2 and 4.6.3.6 of
Practice Guide 66 – Overriding interests losing automatic protection in 2013).

Objections and the Adjudicator

When:

  • an application for first registration is made, or

  • an (unregistered) owner of the land to which the caution relates applies to cancel the caution

notice will be given to the cautioner, who can then object to the application for first registration or cancellation (as the case may be).

In the case of an agreed notice in respect of chancel repair liability, notice is given of the application for the notice, allowing the registered proprietor to object before any entry is made. In the case of agreed notices in respect of other interests and unilateral notices, notice of the entry of the notice is given to the registered proprietor, who can then apply to cancel the notice; the applicant for the notice can object to the application for cancellation.

If an application is the subject of an objection which is not groundless, it cannot proceed until the dispute is disposed of. If it is not possible to dispose of the dispute by agreement, it must be referred to the Adjudicator to HM Land Registry.

Duty to act reasonably

A person must not:

  • apply for a caution or notice, or

  • object to an application

without reasonable cause. This statutory duty is owed to anyone who suffers damage in consequence of its breach (section 77).

Alteration and indemnity

If:

  • the land affected by manorial rights or chancel repair liability is registered for the first time after 12 October 2013 (so the rights are no longer overriding interests), and

  • no notice is entered in respect of the rights on first registration because (i) the person with the benefit of the rights has not lodged a caution against first registration, and (ii) the rights are not apparent to the registrar from an examination of the title (rule 35(1) of the Land Registration Rules 2003 obliges the registrar to enter a notice of the burden of 'any interest which appears from his examination of title to affect the registered estate')

then the estate will vest in the first proprietor free of the rights (sections 11 and 12).

If:

  • the land affected by manorial rights or chancel repair liability is registered but the rights are not protected by a notice (the rights possibly having operated as overriding interests), and

  • there is a transfer of the registered estate for valuable consideration which is completed by registration after 12 October 2013

then the rights will be 'postponed' to the registered estate (section 29). Effectively, therefore, the estate will vest in the new proprietor free of the rights.

If the person with the benefit of the manorial rights or chancel repair liability in either scenario were subsequently to become aware of the rights, could they apply for alteration of the register for the purpose of correcting a mistake, under Schedule 4?

It is not clear that the omission of such a right from the register would necessarily constitute a mistake, particularly where the right was neither protected by a caution against first registration nor disclosed in the deeds and documents of title lodged on first registration. In the event that the registrar accepted that a sufficient case had been made out for there being a mistake and proceeded with the service of notices, there might of course be objections to the application.

But even if there were to be no objection, or the only objections were groundless, it is unlikely that the register would be altered where the interest involved was chancel repair liability. This is because of paragraph 6 of Schedule 4, which generally prevents rectification (that is, alteration that involves the correction of a mistake and prejudicially affects the registered proprietor's title (paragraph 1 of Schedule 4)) without the proprietor's consent in relation to land in their possession (which means physical possession (section 131)). It is not clear whether a surface owner would be treated by the court as automatically being in possession of the mines and minerals in the absence of anyone else (such as a mining company) being in possession.

If the register were not altered, the person with the benefit of the right – the lord of the manor, PCC etc – might be entitled to indemnity under paragraph 1(1)(b) of Schedule 8. But two important points must be noted on the question of indemnity.

(i) No indemnity is payable on account of any mines or minerals, or the existence of any right to work or get mines or minerals (paragraph 2 of Schedule 8).

(ii) No indemnity is payable on account of any loss suffered as a result of the claimant's lack of proper care; where the loss is partly as a result of their lack of proper care, any indemnity is reduced to such extent as is fair having regard to their share in the responsibility for the loss (paragraph 5 of Schedule 8). An obvious way for the claimant to have avoided this loss is for them to have lodged a caution against first registration, which would have ensured that a notice was entered by the registrar on first registration, or to apply for entry of a notice where the land is already registered.

In the event that the register were to be altered, this would take the form of an appropriate notice being entered. The effect would, it seems, be to make the rights binding on the registered proprietor, and to protect their priority, but only from that point onwards; see, in particular, Sainsbury's Supermarkets Ltd v Olympia Homes Ltd [2005] EWHC 1235 (Ch) at [96] and paragraph 8 of Schedule 4.

However, it should be noted that Sainsbury's involved alteration ordered by the court; whether alteration by the registrar without a court order, when the alteration involved the entry of a notice, would also mean that the current registered proprietor was then bound by the interest is not at all clear.

So, taking all this into account, it would seem unwise to take no action in terms of lodging a caution against first registration or applying for entry of a notice, hoping to rely instead on alteration or the payment of indemnity.

Services offered by Land Registry

Once the person with the manorial rights or the benefit of the chancel repair liability, or their conveyancer, identifies the extent of the manor or the extent of the land to which the chancel repair liability attaches, they can then make use of the following services.

  • They can use one of the existing Add Value Services – either the Electronic Extent Data service or the Illustrative Plans service – to identify what part of the land is unregistered and what part registered, together with all the registered titles.

  • They can then apply for a caution against first registration in respect of the unregistered land (or so much of the unregistered land as they choose).

  • They can also then use a new 'title investigation' service to check whether the registered titles revealed include a satisfactory notice in respect of the manorial rights or chancel repair liability – what is a satisfactory notice having been identified in advance by the applicant. Having thus identified which of the registered titles need a notice, they can then apply for unilateral or agreed notices to be entered in those titles.


1 Introduction Practice Guide Section 22 Manors

Manors are of ancient origin dating from before Norman times. The extent of the manor was usually determined by the original grant from the Crown or superior lord. A manor was self-contained with its own customs and rights within its defined area.

There are three separate elements of manors that can affect Land Registry.

  • Lordship of the manor – whoever owns the lordship of the manor is entitled to refer to themselves as lord of that manor, for example, Lord of the manor of Keswick.

  • Manorial land – because a manor was a defined area it included the physical land within that area. Such land could either be freehold or leasehold.

  • Manorial rights – rights which were part and parcel of the manorial title and which were usually kept by the lord on disposal of parts of the manorial land, for example, the right to hunt, shoot or fish.

These elements may exist separately or be combined. The lordship title cannot be subdivided, but the manorial land and the manorial rights can be.

Confusion can be caused, as ‘manor’ can refer to either the lordship and/or the manorial land.

2 Lordship Titles

2.1 Records held by Land Registry

The lordship of the manor is simply the title by which the lord of the manor is known. In many cases the title may no longer have any land or rights attached to it. Because of its origin and lack of physical substance, it is known as an ‘incorporeal hereditament’. Incorporeal hereditament means ‘an interest having no physical existence’.

Before 13 October 2003, being the commencement of the Land Registration Act 2002 (LRA 2002), it was possible to register these lordship titles. However, the registration was always voluntary and most did not seek to register the lordship title. We still keep an index of registered lordship titles. Practice Guide 13 – Applications for searches of the index of relating franchises and manors explains the procedures for searching the index. 

Each registered title has an individual register. This will contain the name and address of the current registered proprietor, whom you may contact with any enquiries about the manorial interests (if any) that affect the land in question. Because of their nature, lordship titles do not have title plans and we do not hold any definitive record of the extent of the original manor.

2.2 Registration under the LRA 2002

Since 13 October 2003, it is no longer possible to make an application for the first registration of a lordship title. However, dealings with existing registered titles are subject to compulsory registration. This includes the grant of a lease (of any term) out of a registered lordship title.

2.3 De-registration

The registered proprietor of a lordship title can apply for the title to be de-registered (s.119, LRA 2002). In this event the lordship title will continue to exist off the register, but (like the majority of these titles) we will hold no record of it.

The registered proprietor, or their legal representative, should apply using a form AP1. Complete the following panels of the form.

1 Local authority area serving the property.

2 Title number of the lordship title.

3 The lordship of a single manor cannot be divided. So, unless the title comprises more than one manor, place ‘X’ against the first statement.

4 Complete the nature of the application as ‘de-registration of manor’. No fee is required.

6 Enter the name of the person applying to de-register the manor.

7 Enter the name and address of the person submitting the application.

8 Only complete this panel if you want us to tell someone else when the application is completed.

13 The applicant or their legal representative must sign.

Send your application to the correct Land Registry office.

3 Manorial land

Manorial land is the land that was originally part of the landholdings of the lordship of the manor and has not been transferred separately from the lordship title. Manorial land can be extensive, or it can be a collection of scattered small pieces of land, which may cover a large area.

Manorial land is subject to compulsory registration in the same way as any other physical (corporeal) land.

Use a form SIM to find out if land is registered or subject to a pending application for first registration – see Practice Guide 10 – Applications for official searches of the index map. 

4 Manorial rights

A lord of the manor may exercise certain rights usually known as ‘manorial incidents’. Such rights could no longer be created after 1925. The main manorial rights can be summarised as:

 

  • the lord’s sporting rights

  • the lord’s or tenant’s rights to mines or minerals

  • the lord’s right to hold fairs and markets

  • the lord’s or tenant’s liability for the construction, maintenance and repair of dykes, ditches, canals and other works.

    These are just examples and it does not necessarily follow that such rights are legally exercisable. Registered lordship titles usually make no reference to any manorial incidents in the register. It may be that the benefit of the rights was not included in an earlier sale of the lordship title.

    Under the LRA 2002 manorial rights are categorised as overriding interests, so a landowner takes subject to them even if they are not mentioned in their register. However, under s.117, LRA 2002 these rights will lose their overriding status after 12 October 2013 (10 years after the Act came into force). Where any manorial rights have not been protected by notice or caution against first registration before 13 October 2013, they do not automatically cease to exist on that date. The position is set out in sections 4.3.1 The land was registered after 12 October 2013 and 4.3.2 The land was registered before 13 October 2013.

    4.2 Land subject to rights

    When registering a property for the first time, we may make an entry in the property register if it appears that the land may still be subject to manorial rights. This may be the case if the title deeds reveal that the land was former copyhold (ie held of the lord of the manor) and the rights were preserved on enfranchisement (when the title was converted to freehold).

     

    • Applicants have a duty to disclose manorial rights on all first registrations or dispositions of registered land. For further information see Practice Guide 15 – Overriding interests and their disclosure.

    • Somebody with the benefit can apply for the existence of manorial incidents to be noted in the register of a title that is subject to them. The applicant must satisfy us of the existence of the rights. No fee is payable. For further information, see Practice Guide 66 – Overriding interests losing automatic protection in 2013, which deals with third party interests.

    • If the land subject to the rights is not registered, they can be protected without fee by caution against first registration. See Practice Guide 3 – Cautions against first registration.

    4.3.1 The land was registered after 12 October 2013

    Prior to first registration the legal owner of the land will be bound by any manorial rights because they are legal interests. On first registration they will hold the estate free of manorial rights unless they are protected by notice at the time of first registration.

    4.3.2 The land was registered before 13 October 2013

    Even if the interest has not been protected by the entry of a notice in the register the land will remain subject to it. But, unless such a notice is entered, a person who acquires the registered estate for valuable consideration by way of registrable disposition after 12 October 2013 will take free from that interest (s.29, LRA 2002). Until such a disposition is registered the person having the benefit of the interest may apply to protect it by entry of notice.

    Practice Guide Section 65 - Registration of Mines and Minerals

    1 Abbreviations used

    In this guide:

    ‘LPA 1922’ means the Law of Property Act 1922

    ‘LPA 1925’ means the Law of Property Act 1925

    ‘LRA 2002’ means the Land Registration Act 2002

    ‘LRR 2003’ means the Land Registration Rules 2003.

    2 Introduction

    This guide deals with the registration of mines and minerals under the LRA 2002. It does not seek to be a general guide to the law concerning mines and minerals.

    S.132(1), LRA 2002 states that ‘mines and minerals’ includes any strata or seam of minerals or substances in or under any land, and powers of working and getting any such minerals or substances. ‘Land’ is defined by that section as including “…(c) mines and minerals, whether or not held with the surface”.

    The registration of mines and minerals held apart from the surface is not compulsory (s.4(9), LRA 2002) except where there is a registrable disposition of such mines and minerals (s.27, LRA 2002).

    Where the mines and minerals constitute the surface or outcrop, for example along a cliff face that slopes outwards towards the sea, the usual rules regarding compulsory registration apply to the surface.

    It is possible to make a voluntary application to register mines and minerals at any time.

    Rights in respect of mines and minerals reserved to the lord on enfranchisement (whether under s.48, Copyhold Act 1852, s.23, Copyhold Act 1894 or paragraph 5 of Schedule 12, LPA 1922) do not fall within s.1(1)(a), LPA 1925 but rather within s.1(2)(a), LPA 1925. Such rights cannot be registered with their own title under s.3(1)(a), LRA 2002. Where there was a custom of the manor that the lord was entitled to enter the copyhold land of the tenant and take the minerals, it may be possible to register the rights reserved to the lord on enfranchisement under those Acts under s.3(1)(d), LRA 2002, but only when the rights are profits a prendre in gross.

    See
    Practice Guide 16 – Profits a prendre for details about registration of a profit a prendre in gross.

    Under the general law, as part of the Crown’s prerogative, all mines of gold and silver belong to the Crown other than, exceptionally, where they have been granted to a subject. Petroleum in its natural state is also vested in the Crown. Most interests in coal are vested in the Coal Authority. The Coal Authority may also have title to other mines and minerals in coal mining areas. Registered titles will not therefore include any of these interests.

    3 First registration of freehold mines and minerals held apart from the land

    3.1 How to apply

    An application for first registration must be made in form FR1 and, under rr.25 and 26, LRR 2003, be accompanied by:

    • a plan of the surface under which the mines and minerals lie

    • any other sufficient details by plan or otherwise so that the mines and minerals can be identified clearly

    • full details of rights incidental to the working of the mines and minerals.

    In addition you must lodge:

    • documents proving title to the mines and minerals (see section 4 Title to mines and minerals)

    • all necessary land charges searches

    • the fee (payable under the current Land Registration Fee Order) based on either the price paid in a recent transaction or a certificate of the value of the interest being registered

    • full details in form DI of any other unregistered interests affecting the mines and minerals as specified in Schedule 1, LRA 2002 (see Practice Guide 15 – Overriding interests and their disclosure )  evidence, if appropriate, that the mines and minerals are currently being worked (which may be helpful in considering the class of title).

      3.2 Class of title
      There are significant problems in establishing a good title to mines and minerals. These are discussed in section 4 Title to mines and minerals. As a result mines and minerals can usually only be registered with a qualified title.
      The qualification will be as follows:
      “QUALIFICATION: The inclusion of all or any of the mines and minerals and powers of working and getting them in this title does not affect or prejudice the enforcement of any estate right or interest therein existing before [date of first registration].”
      4 Title to mines and minerals
      The conventional 15-year root of title will rarely be sufficient to allow the grant of an absolute title to mines and minerals for the following reasons. In many cases the difficulty will be in determining whether or not any of the situations described below apply.
      4.1 Crown grants
      All land in England and Wales is held in tenure from the Crown. Some grants of land from the Crown reserved the mines and minerals and any reservation in favour of the Crown is construed against the grantee.
      4.2 Copyhold
      Copyhold was a form of tenure affecting large areas of the country that was abolished on 1 January 1926 by the LPA 1922. Although the position regarding the ownership of mines and minerals under copyhold land was governed by the custom of the manor in which that land was situate, the most common situation was that the property in the minerals was with the lord of the manor but the lord could not work them without the consent of the copyholder. Even where the lord of the manor can work the minerals, once the minerals have been removed the space which the minerals occupied belongs to the copyholder’s successor in title (Eardley v Granville (1876) 3 Ch. D. 826).
      On enfranchisement of the copyhold (whether under the Copyhold Acts of 1841, 1852, 1858 or 1894 or under the LPA 1922) the position of the lord and tenant regarding mines and minerals was generally preserved by way of appropriate reservations implied by the relevant Act. Occasionally however the position regarding mines and minerals was specifically dealt with by the parties on enfranchisement. On enfranchisement at common law the mines and minerals usually passed to the copyholder but might be dealt with otherwise in the deed of enfranchisement. It is not always apparent from deeds of enfranchisement whether the enfranchisement was at common law or under one of the Copyhold Acts. Enfranchisement was the process by which a copyhold tenure was converted into a freehold title.
      4.3 Ancient demesne
      A manor of ancient demesne was a manor that belonged to the Crown at the time of Edward the Confessor or William I. The position regarding the ownership of mines and minerals in land that was ancient demesne may be unclear, since some tenants in ancient demesne had freehold while others had copyhold.
      4.4 Ancient freehold, customary freehold and tenant right
      Ancient freehold was land which was not parcel of the manor but held at the will of the lord and which could be conveyed without the need for an admittance. As the freehold was held by the tenant, the mines and minerals were usually vested in them.
      In contrast to ancient freehold, which was a sort of free tenure, customary freehold was a form of privileged copyhold. A conveyance of a customary freehold could be made by surrender and admittance, or by an ordinary conveyance followed by an admittance, or by an ordinary conveyance coupled with surrender and admittance. As a form of copyhold, the position regarding mines and minerals is the same as under section 4.2 Copyhold.
      Tenant right was a form of tenure predominantly in the counties of Northumberland, Cumberland and Westmorland. While it was arguably neither freehold nor copyhold, it was a customary tenure and the ownership of the mines and minerals may depend on the particular custom affecting the land in question.
      4.5 Local law
      In some parts of the country questions about the ownership of mines and minerals may depend on ‘local law’, for example in the Forest of Dean or the High Peak. In the south west (and perhaps elsewhere) questions may arise about conventionary tenements or tin bounding. There may be other examples.
      4.6 Inclosures
      Where land was the subject to an Inclosure Act or Award the ownership of the mines and minerals may be dealt with by that Act or Award. The inclosure may have taken place as long ago as the 1700s and may not be referred to in later deeds, but will still determine questions of ownership.
      4.7 Coal Authority
      In certain areas of the country coal and other mines and minerals may be vested in the Coal Authority. Enquiries to the Coal Authority will be required (see section 8 Notices).
      4.8 Adverse possession
      It is possible that adverse possession of a seam or area of minerals may have been established through underground working.

       

      5 Inclusion of mines and minerals

      The mines and minerals are rebuttably presumed to be included in the registered title of surface land; this reflects the common law position with regard to mines and minerals where the surface lands are unregistered.

      However, paragraph 2 of Schedule 8, LRA 2002 provides that no indemnity is payable in respect of mines and minerals unless there is a specific note in the register that title to them is included.

      Such a note can be entered as a result of a:

      • specific application on first registration

      • subsequent application in form AP1.

      The evidence required in support will be the same as that required for the grant of an absolute title on first registration of the mines and minerals (see section 4 Title to mines and minerals) and must be sufficient to satisfy the registrar that those mines and minerals are included in the registered estate (r.71, LRR 2003). Where the evidence of title to the mines and minerals is not sufficient for an absolute title, a separate qualified title may be created ss.9(4) and 10(5), LRA 2002.

      The form of the note in the register extending indemnity to mines and minerals will usually be:

      “NOTE:- For the purposes of paragraph 2 of Schedule 8 to the Land Registration Act 2002 [details of mines and minerals] are included in this title.”

      Where a note cannot be made in the register that the title to the registered estate includes mines and minerals, but the description of the registered estate makes reference to mines and minerals, an entry on the following lines may appear:

      “NOTE: The description of the registered estate is an entry made under rule 5(a) of the Land Registration Rules 2003 and is not a note to which paragraph 2 of Schedule 8 to the Land Registration Act 2002 refers that the registered estate includes the mines or minerals. The mines and minerals under the land are only included in the registration to the extent that they were included in [title number].”

      Such an entry may be used, for example, where a transfer of part of a registered estate is expressed to include the mines and minerals, but the transferor’s property register does not include a note for the purposes of paragraph 2 of Schedule 8, LRA 2002. The registrar will want to ensure that any reference to mines and minerals in the description in the transferee’s property register is not a note for the purposes of paragraph 2 of Schedule 8, LRA 2002.

      6 Leases of mines and minerals

      6.1 First registration

      6.1.1 How to apply

      An application for first registration must be made in form FR1 and, under rr.25 and 26, LRR 2003, be accompanied by:

      • a plan of the surface under which the mines and minerals lie

      • any other sufficient details by plan or otherwise so that the mines and minerals can be identified clearly

      • full details of rights incidental to the working of the mines and minerals.

      In addition you must lodge:

      • documents proving title to the mines and minerals

      • all necessary land charges searches

      • the fee (payable under the current Land Registration Fee Order) based on either the price paid in a recent transaction or a certificate of value of the interest being registered

      • full details in form DI of any other unregistered interests affecting the mines and minerals as specified in Schedule 1, LRA 2002
        ( see
        Practice Guide 15 – Overriding interests and their disclosure ).

      6.1.2 Class of title 

      Where the lessor’s title cannot be satisfactorily established, a good leasehold title will be registered. Evidence of the lessor’s title will be required if an absolute title is to be registered (see section 4 Title to mines and minerals).

      6.2 Leases of mines and minerals out of registered land

      Where a lease of mines and minerals is a grant out of an absolute title to mines and minerals, or there is a note on the lessor’s title regarding the inclusion of those mines and minerals, an absolute title can be registered. Where there is no such note and the lessor is registered with an absolute title, then an absolute title to the leasehold estate can still be registered but the following entry will be made following the description of the registered estate:

      “NOTE: The description of the registered estate is an entry made under rule 5(a) of the Land Registration Rules 2003 and is not a note to which paragraph 2 of Schedule 8 to the Land Registration Act 2002 refers that the registered estate includes the mines or minerals under the land. The mines and minerals under the land are only included in the registration to the extent that they were included in [title number of the lessor’s title].”

      In those cases where the lessor is registered with a qualified or possessory title, a good leasehold title will be registered.

      7 Transfers out of registered land

      Where a transfer of mines and minerals is made out of a registered title to mines and minerals, or which contains a note regarding the inclusion of those mines and minerals, the new title will be registered with the same class of title as the existing class of title. Where there is no such note, the new title will be registered with the same class of title as the existing class of title but the following entry will be made following the description of the registered estate:

      “NOTE: The description of the registered estate is an entry made under rule 5(a) of the Land Registration Rules 2003 and is not a note to which paragraph 2 of Schedule 8 to the Land Registration Act 2002 refers that the registered estate includes the mines or minerals under the land. The mines and minerals under the land are only included in the registration to the extent that they were included in [title number of the transferor’s title].”

      8 Notices

      We may give notice of the application to the owner of a surface title and may also give notice to other persons, for example, in appropriate circumstances, the Crown or the Coal Authority (r.30(a), LRR 2003). In the unusual case where absolute title is being considered, and the application is in a coal-mining area, one line of enquiry the applicant will be expected to make in advance of the application is to establish with the Coal Authority whether it has any claim to the mines and minerals sought to be registered. Details of coal-mining areas can be found on the Coal Authority’s website www.coal.gov.uk

      9 Indemnity

      Paragraph 2 of Schedule 8, LRA 2002 provides that no indemnity is payable in respect of mines and minerals unless there is a specific note in the register that title to them is included.

      10 Overriding interests

      Registered land is subject to any subsisting overriding interests (ss.11, 12, 29, 30 and Schedules 1 and 3, LRA 2002). These include:

      • an interest in any coal or coal mine, the rights attached to any such interest and the rights of any person under ss.38, 49 or 51, Coal Industry Act 1994

      • in the case of land to which title was registered before 1898, rights to mines and minerals (and incidental rights) created before 1898

      • in the case of land to which title was registered between 1898 and 1925 inclusive, rights to mines and minerals (and incidental rights) created before the date of registration of the title.

        11 Profits a prendre

      The grant of a right to enter on to land and extract minerals may be a profit a prendre. Such a right may be registered if it is in gross ( see Practice Guide 16 – Profits a prendre ) and must be registered where the grant is out of registered land, except where the right so granted is capable of registration under the Commons Registration Act 1965. 

      12 Examples where absolute title to mines and minerals may be appropriate

      Because of the difficulties in proving the negatives necessary to establish title (see section 4 Title to mines and minerals) these examples are mainly based on situations where there is clear evidence that the land was formerly copyhold.

      12.1 The Crown was the lord of a manor (not a manor of ancient demesne – see section 4.3 Ancient demesne) on 1 January 1926 when the LPA 1922 came into force. The Crown had not at that time granted any leases of mines and minerals or otherwise dealt with the mines and minerals. The compensation agreement, which was entered into between the Crown and a former copyholder, dealt not only with the extinguishment of the manorial incidents saved by Part V of the LPA 1922 affecting the land of the former copyholder but also with the extinguishment of “the rights of the lord in or to any mines and minerals in or under the said land and the sporting and other rights affecting the same preserved by the Twelfth Schedule to that Act”. The applicant is able to prove that the copyholder and their predecessors and successors in title have not dealt with the mines and minerals, or any interest they had in them, separately from the land. No minerals under the land have been worked.

      In this situation it is clear that the successor to the copyholder has title to the mines and minerals under the land in question and an absolute title is appropriate.

      12.2 Under the terms of an inclosure award the land is allotted to one person as copyhold and the mines and minerals under the land are awarded to the lord of the manor. On enfranchisement of the copyhold land under the Copyhold Act 1894, the mines and minerals were not specifically dealt with, therefore the ownership of the lord of the manor was not affected. The applicant is able to prove that the lord and the lord’s predecessors and successors in title have not dealt with the mines and minerals, or any interest they had in them, separately from the land. No third party has been in adverse possession of the mines and minerals.

      In this situation it is clear that the successor to the lord of the manor has title to the mines and minerals under the land in question and an absolute title is appropriate.

      12.3 Following enfranchisement of copyhold land under the LPA 1922 the lord of the manor and former copyholder entered into a compensation agreement in the form of a deed in which all mines and minerals in and under the land were reserved to the lord of the manor. Prior to this neither the lord of the manor nor the copyholder had dealt with any interest which the lord of the manor had in the mines and minerals. There is nothing to suggest that the mines and minerals were reserved on the original grant from the Crown.

      In this situation it is clear that the successor to the lord of the manor has title to the mines and minerals under the land in question and an absolute title is appropriate.

      12.4 A landowner who can prove:

      • title directly from a crown grant which included mines and minerals

      • that the land has never been the subject of a copyhold grant, and

      • that the mines and minerals have never, prior to the date of the application for first registration, been disposed of can expect an absolute title to be approved.


        Practice Guide Section 66 - Overriding interest losing automatic protection in 2013  

        1 Abbreviations and terms used

        In this guide:

        ‘conveyancer’ means an authorised person within the meaning of s.18, Legal Services Act 2007 who is entitled to provide the conveyancing services referred to in paragraphs 5(1)(a) and (b) of Schedule 2 to that Act, or a person carrying out those activities in the course of their duties as a public officer. It also includes an individual or body who employs or has among their managers such an authorised person who will undertake or supervise those conveyancing activities (r.217A, LRR 2003)

        ‘Fee Order’ means the current Land Registration Fee Order

        ‘LRA 2002’ means the Land Registration Act 2002

        ‘LRA 2002 (TP) (No 2) Order 2003’ means the Land Registration Act 2002 (Transitional Provisions) (No 2) Order 2003

        ‘LRR 2003’ means the Land Registration Rules 2003

        ‘overriding interests’ are unregistered interests that override first registration or registered dispositions as listed in Schedules 1 and 3, LRA 2002. These interests are interests in land that bind the owner or purchaser of the land even though they do not appear in the register.

        References to numbered sections and schedules are to those in the LRA 2002 and references to numbered rules are to the LRR 2003, unless otherwise stated.

        2 Introduction

        This guide deals with the protection of those overriding interests that will lose their overriding status at midnight on 12 October 20131. These interests2 are:

        • a franchise

        • a manorial right

        • a right to rent that was reserved to the Crown on the granting of any freehold estate (whether or not the right is still vested in the Crown)

        • a non-statutory right in respect of an embankment or sea or river wall

        • a right to payment in lieu of tithe

        • a right in respect of the repair of a church chancel.

        1 S.117, LRA 2002 and r.2, LRA 2002 (TP) (No 2) Order 2003.

        2 See Law Com No. 271 Land Registration for the Twenty-first Century – A Conveyancing Revolution at paragraph 8.8 where it states: “There are five miscellaneous overriding interests, whose shared characteristics have been described above at paragraph 8.35. All are relics from past times and are of an unusual character. Most of them can no longer be created. Those who have the benefit of such rights ought to be aware of them. These characteristics make them obvious and sensible candidates to be phased out. If such rights are to bind those who acquire registered land, they should be protected in the register.” The paragraph only refers to five overriding interests because at paragraph 8.75 the report says: “In a recent decision, the Court of Appeal has held that chancel repair liability contravenes the European Convention on Human Rights and is, therefore, unenforceable. It is therefore unnecessary for us to say any more about this.” Since the report was written the Court of Appeal decision has been overturned – see section 4.6.3.6 A right in respect of the repair of a church chancel.

        Before 13 October 2013, these interests can be protected without fee3:

        • where the title is registered, by a notice in the register, or

        • where the title is not yet registered, by caution against first registration.

        After 12 October 2013, they can be similarly protected provided they bind the then registered proprietor4 but it is probable that a fee will be payable under the Fee Order.

        3 S.117, LRA 2002 and, in respect of chancel repair liability, the Fee Order.

        4 See section 6.2 The land was registered before 13 October 2013.

        An applicant seeking to protect their interest by way of notice or caution against first registration may apply for an official search of the index map to establish whether or not any part of the land searched is registered and, if so, the title numbers concerned and the type of registration that has been disclosed.
        See
        Practice Guide 10 – Official searches of the index map.

        3 Interests already protected by entries in the register

        As a result of information provided to Land Registry on an application, an entry may already have been made to protect such an interest. Where such an entry is made, the interest will cease to be an overriding interest5. In such a case, it will not be necessary to make a further application to protect the interest.

        5 S.29(3), LRA 2002.

        For example, if the following entry appears in the register.

        “The land is subject to a rent of 1s 0d reserved to the Crown by a Conveyance thereof dated 17 July 1893 made between (1) The Queen’s Most Excellent Majesty (2) The Board of Trade and (3) The Commissioner of The Piers and Harbour of Clayport.

        NOTE: Copy filed.”

        The Crown rent created by the conveyance of 17 July 1893 is therefore already protected and has ceased to be an overriding interest.

        Examples of other entries that may appear in the register are:

        “The land was formerly copyhold of the Manor of Pinechester. This registration takes effect subject to the reservation of any rights of the lord referred to in the 12th Schedule of the Law of Property Act 1922.”

        “The land was formerly copyhold of the Manor of Pinechester and on the enfranchisement thereof there were excepted the mines and minerals and rights referred to in section 48 of the Copyhold Act 1852. Such mines and minerals and rights are not included in this registration.”

        “The land was formerly copyhold of the Manor of Pinechester and on the enfranchisement thereof there were excepted the mines and minerals and rights referred to in section 23 of the Copyhold Act 1894. Such mines and minerals and rights are not included in this registration.”

        Our view is that these entries are notices in respect of manorial rights and therefore such rights will have ceased to be overriding interests so that further protection is unnecessary. There may, however, be arguments to support the contrary view. Accordingly applications may be made for a notice in respect of specific manorial rights even though one of these entries already appears in the register. Before 13 October 2013, no fee is payable for such an application.

        4 Entry of notices in the register

        An application for entry of a notice may be for either:

        • a unilateral notice, or

        • an agreed notice.

        There are different procedures for entering unilateral notices and agreed notices and for cancelling the entries once made. The forms of the entries in the register are also different. However, all types of notice have the effect of protecting the priority of the interest to which they relate. For further information see

        Practice Guide 19 – Notices, restrictions and the protection of third party interests in the register

        4.1 The nature and effect of notices

        A notice is an entry made in the register in respect of the burden of an interest affecting a registered estate or charge.

        The effect of a notice is very limited. The entry of a notice does not guarantee that the interest that it protects is valid or even that it exists6. A notice will only ensure that the priority of the interest protected will not be automatically postponed on the registration of a subsequent registrable disposition for valuable consideration, if the interest is valid. The person with the benefit of the interest should be aware that once the interest has been noted, overriding status is lost and cannot be regained even if the notice is cancelled7.

        6 S.32 LRA 2002.

        7 S.29(3), LRA 2002.

        Once entered in the register, any notice other than a unilateral notice will only be cancelled if the registrar is satisfied that the interest protected has come to an end, or that the interest claimed is otherwise invalid. A person applying for an agreed notice to be cancelled must produce evidence to satisfy the registrar that this is the case.

        A person must not lodge an application for a notice without reasonable cause. If they do, they owe a duty to anyone who suffers damage, and the person adversely affected may bring an action for damages88 S.77, LRA 2002.

        4.3 Unilateral notices

        A unilateral notice may be entered without the consent of the relevant proprietor. The applicant is not required to satisfy the registrar that their claim is valid and does not need to support their claim to the interest with any evidence. The registrar will however check that the interest claimed is of a type that may be protected by unilateral notice.

        The relevant proprietor is not notified of the application until after the entry has been made so they will not usually be able to object to the application. However, they will always be notified after the application has been completed. They can then apply at any time to cancel the notice and, by doing so, require the person claiming the benefit of the protected interest to prove the validity of their claim.

        There are two elements to any unilateral notice entry appearing in the register. The first part gives brief details of the interest protected and identifies that the entry is a unilateral notice; the second part gives the name and address of the person identified by the applicant as the beneficiary of the notice. This information is necessary as it is the beneficiary who will be served with notice and required to prove the validity of the interest if the relevant proprietor applies to cancel the notice.

        An example of a unilateral notice entry would be:

        “(22 January 2004) UNILATERAL NOTICE in respect of a liability to contribute to the maintenance and repair of the embankments of the river Hythe adjoining the land in this title and arising by virtue of the custom of the Township of Hythehampton. (22 January 2004) BENEFICIARY: James Dean Perry of The Manor House, Upper Hythe, Cornshire XX1 3AB.” 4.4 Applying for a unilateral notice

        4.4.1 Application form

        An application for a unilateral notice must be made in form UN1.

        4.4.2 Details of the nature of the applicant’s claim

        Details of the nature of the interest claimed must be set out in the relevant panel of form UN1. This information may be given either:

        • as a statement by the beneficiary or someone authorised by them, or

        • as a certificate given by a conveyancer.

        The applicant is not required to lodge any other document in support of their claim. However, if they do so, the registrar will retain the document or a copy of it and refer to it in the notice entry. This would mean that the document would be available for public inspection. Any such document, even if it is an original, will be stored electronically and will then be destroyed9. If the applicant lodges an original document and wants it returned, a certified copy must also be lodged and a request made at the time of the application for the return of the original document.

        9 R.203(6), LRR 2003.

        4.4.3 Identifying the beneficiary of the notice

        An application for a unilateral notice must identify who is to be named in the entry as the beneficiary of the notice and must provide up to three addresses for service to be entered in the register.

        The addresses given may be postal, DX or electronic addresses although one must be a postal address, though not necessarily an address in the UK10. Any cancellation notice in respect of the unilateral notice will be sent to the beneficiary at the address(es) for service in the register. Where appropriate, one address given may be ‘care of’ the beneficiary’s conveyancer to ensure that a cancellation notice is not inadvertently overlooked when received.

        10 Rr.198-9, LRR 2003 provide further information about addresses for service and when service shall be regarded as having taken place.

        4.4.4 Registration of a new or additional beneficiary of a unilateral notice

        In order that the register may be kept up to date, someone who is or has become entitled to the benefit of an interest that is protected by a unilateral notice may apply to be entered as the beneficiary of that notice.

        The application must be made in form UN3 and must be accompanied by the fixed fee prescribed under the Fee Order – see

        Practice Guide 19 – Notices, restrictions and the protection of third party interests in the register

        4.5 Agreed notices

        An agreed notice can only be entered in the register either:

        • by, or with the consent of, the relevant proprietor (or someone entitled to be registered as such), or

        • if the applicant can satisfy the registrar that the interest claimed is valid.

        We are not obliged to serve notice on the relevant proprietor before approving an application for an agreed notice made without the proprietor’s cooperation. In most cases we will determine the application on the basis of the evidence lodged without involving the proprietor. However, if the application is one based on evidence rather than proprietor cooperation, we will always notify the proprietor that the entry has been made when we complete the application.

        Agreed notice entries must give details of the interest that they protect. Often this is achieved by referring to a document that describes, or that created, the interest. An extract from the document may be set out in the register or the document itself may be scanned and stored electronically and made available for inspection. Once the document has been scanned it will be destroyed even if it is the original unless a certified copy has also been lodged and a request for the return of the original document has been made at the time of making the application. An example of an agreed notice entry would be:

        “(22 January 2002) A Conveyance dated 17 July 1893 made between (1) The Queen’s Most Excellent Majesty (2) The Board of Trade and (3) The Commissioner of The Piers and Harbour of Clayport reserves a rent of 1s 0d to the Crown. 

        NOTE: Copy filed.”

        4.6.1 Application form

        An application for an agreed notice must be made in form AN1.

        4.6.2 Applications based on evidence rather than consent

        In practice most applications of this type are likely to be made without the consent of the registered proprietor. Where the consent is available see section 4.6.4 Applications made with the cooperation of the relevant proprietor.

        Where the application is not made with consent, it must be accompanied by sufficient evidence to satisfy the registrar of the validity of the applicant’s claim11.

        11 R.81(1), LRR 2003.

        The evidence required to satisfy the registrar of the validity of the claim will of course vary on a case-by-case basis. Examples of the type of evidence that may satisfy the registrar of the validity of a claim are set out in section 4.6.3 Evidence of the applicant’s claim.

        4.6.3 Evidence of the applicant’s claim

        4.6.3.1 A franchise

        A franchise requires a grant from the Crown in the form of a Charter or Letters Patent. It may also be claimed by prescription (which presupposes use since before 1189 or a later grant that has been lost). The LRR 200312 distinguish between:

        • an ‘affecting franchise’ – “a franchise that relates to a defined area of land and is an adverse right affecting, or capable of affecting, the title to an estate or charge”, and

        • a ‘relating franchise’ – “a franchise that is not an affecting franchise”.

        12 R.217(1), LRR 2003.

        A franchise may be registered.

        For further information see
        Practice Guide 18 – Franchises.

        Most franchises are considered to be relating franchises and are not overriding interests because they do not affect land. They cannot, therefore, be the subject of an application for a notice.

        There is strong authority for the view that a market franchise will be a relating franchise. Even if the market franchise relates to an area that can still be defined, it does not appear to give the franchise-holder the right to enter the land without the landowner’s consent, and so does not confer property rights adversely affecting the title to any estate or charge.

        To establish the validity of the applicant’s claim to an affecting franchise for the purpose of an agreed notice it will normally be necessary to supply a certified copy (together with a certified translation if the copy document is in Latin) of the Charter or Letters Patent. We will accept as a certified copy:

        • a transcript

        • a photocopy

        • a photograph (provided it is readable)

        • a certified copy of the relevant entry in the Charter Rolls or Patents Rolls supplied by the National Archives13, or

        • a copy extract of a published calendar of Charter and Patent Rolls (provided the abstract supplies sufficient detail).

        13 Formerly the Public Records Office.

        We will also need to be satisfied that the franchise has been vested in the applicant for the agreed notice and we may also require evidence by way of statutory declaration or statement of truth that it remains actively exercised, and this last requirement will be regarded as an essential requirement where the franchise is claimed by prescription. See Practice Guide 73 – Statements of truth  for information about the use of statements of truth in support of applications to Land Registry.

        4.6.3.2 Manorial rights

        ‘Manorial rights’ has a precise meaning. Such rights are narrower than the appurtenances deemed to be included in the conveyance of a Manor by virtue of the Law of Property Act 1925 section 62(3) (or the Conveyancing Act 1881 section 6(3)). The rights in question were listed in some detail in paragraphs 5 and 6 of Schedule 12 to the Law of Property Act 1922. Although this list of rights relates to the effect of enfranchisement under the Law of Property Act 1922 it may nevertheless be taken to be “a comprehensive statement of these rights”14. They are:

        (5) An enfranchisement by virtue of this Act of any land (including any mines and minerals hereinafter mentioned) shall not affect any right of the lord or tenant in or to any mines, minerals, limestone, lime, clay, stone, gravel, pits, or quarries, whether in or under the enfranchised land or not, or any right of entry, right of way and search, or other easement or privilege of the lord or tenant in, on, through, over, or under any land, or any powers which in respect of property in the soil might but for the enfranchisement have been exercised for the purpose of enabling the lord or tenant, their or his agents, workmen, or assigns, more effectually to search for, win, and work any mines, minerals, pits or quarries, or to remove and carry away any minerals, limestone, lime, stones, clay, gravel, or other substances had or gotten therefrom, or the rights, franchises, royalties, or privileges of the lord in respect of any fairs, markets, rights of chase or warren, piscaries, or other rights of hunting, shooting, fishing, fowling, or otherwise taking game, fish, or fowl.

        Provided that the owner of the enfranchised land shall, notwithstanding any reservation of mines or minerals in this Act (but without prejudice to the rights to any mines or minerals, or the right to work or carry away the same), have full power to disturb or remove the soil so far as is necessary or convenient for the purpose of making roads or drains or erecting buildings or obtaining water on the land.

        (6) An enfranchisement by virtue of this Act shall not affect any liability subsisting at the commencement of this Act (whether arising by virtue of a court leet regulation or otherwise) for the construction maintenance cleansing or repair of any dykes, ditches, canals, sea or river walls, piles, bridges, levels, ways and other works required for the protection or general benefit of any land within a manor or for abating nuisances therein; and any person interested in enforcing the liability may apply to the court to ascertain or apportion the liability and to charge the same upon or against the land or any interest therein; and the court may make such order as it thinks fit; and the charge when made by the order shall be deemed to be a land charge within the meaning of the Land Charges Registration and Searches Act, 1883 (as amended by any subsequent enactment), and may be registered accordingly; and, in addition, the jurisdiction of any court leet, customary or other court, in reference to the matter is hereby transferred to the court.”

        14 See Law Com 271 at para 8.41.

        To establish the validity of their claim for the purposes of an agreed notice the applicant will normally need to produce:

        • evidence that the land in question was previously copyhold of the manor in question (this will usually be provided by producing a copy of the deed of enfranchisement or compensation agreement)

        • evidence that it was the custom of the manor in question that the lord had the rights claimed, for example by evidence from the court rolls

        • evidence that the rights in question survived enfranchisement (this will usually be provided by producing a copy of the deed of enfranchisement or compensation agreement)

        • evidence of the applicant’s title to the particular manorial rights claimed (this will usually consist of an abstract or epitome of title showing the applicant’s title to the lordship of the manor and that the rights have not been severed from the lordship).

        In a case where it is proposed to make an application for registration of mines and minerals see Practice Guide 65 – Registration of mines and minerals.

        4.6.3.3 A Crown rent

        A Crown rent includes, but may not be limited to:

        • the rent payable to the Crown for freehold land in a manor of ancient demesne, or

        • the rent reserved to the Crown under the grant of a freehold estate, whether or not that estate was situated in a manor of ancient demesne.

        The applicant will normally need to lodge a copy of the grant under which the Crown rent arises and, where the applicant is not the Crown, evidence of the devolution of the Crown rent to the applicant and confirmation that the Crown rent is still payable.

        4.6.3.4 A non-statutory right in respect of an embankment or sea or river wall

        A non-statutory right in respect of an embankment or sea or river wall relates to a proprietary (as opposed to contractual) liability that has arisen by grant, a covenant supported by a rentcharge, prescription, custom or tenure.

        Where the liability has arisen by grant or by a covenant supported by a rentcharge, the applicant will normally need to produce a copy of the deed under which the right arises and evidence of the devolution of the right to the applicant.

        Where the right has arisen through prescription or custom, the applicant will normally need to produce a statutory declaration or statement of truth dealing with how the right arose and how the benefit of it passed to the applicant.
        See
        Practice Guide 73 – Statements of truth for information about the use of statements of truth in support of applications to Land Registry.

        Liability arising by reason of tenure is expected to be very rare because it appears that strictly no such liability could arise by way of a grant after 1189 other than a grant from the Crown. Where the applicant has evidence of such a grant it should be lodged in addition to evidence showing how the benefit of the right is vested in the applicant. It is thought to be more likely however that a copy of the grant will not be available in such cases and the existence of a tenurial liability will be sought to be established by showing (by way of statutory declaration or statement of truth) that successive owners of the land in question had maintained the embankment, sea or river wall for many years.

        4.6.3.5 A right to payment in lieu of tithe

        It appears that the only payments in lieu of tithe that still exist are those made payable out of or charged on land by any Act of Parliament other than one of the Tithe Acts. These payments are often called ‘corn rents’ but it should be noted that not all payments called ‘corn rents’ are made in lieu of tithe.

        The applicant will normally need to produce evidence as to the statutory provision on which the payment is based, evidence of the devolution to the applicant of the benefit of the right to the payment and confirmation that the payment is still payable.

        4.6.3.6 A right in respect of the repair of a church chancel

        Chancel repair liability is the liability of the owner of land to pay for the repair of the chancel of a parish church15. In England the parochial church council, and, in Wales, the Representative Body of the Church in Wales, have the right to collect the money. There may be liability where land was formerly attached to a rectory. Such former rectorial land is not necessarily close to a church building. Owners affected include private persons, ecclesiastical corporations, universities and colleges and other corporate bodies. These owners are known as lay-rectors.

        15 See Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37.

        There have been arguments that chancel repair liability is not an interest in land that can be protected by notice. Land Registry currently operates on the basis that it does constitute such an interest. But we will serve notice on the proprietor before making an entry of an agreed notice.

        The applicant will normally need to produce a statutory declaration or statement of truth detailing how the liability arose and how the benefit of the right to enforce it has devolved to the applicant. Where the liability or the benefit to it has been the subject of a deed, a copy of the deed should be produced if it is available to the applicant. See Practice Guide 73 – Statements of truth for information about the use of statements of truth in support of applications to Land Registry.

        4.6.4 Applications made with the cooperation of the relevant proprietor

        Unless the applicant can satisfy the registrar of the validity of the interest claimed, the application must be made by or with the consent of the relevant proprietor, or by or with the consent of someone who is entitled to apply to be registered as the relevant proprietor.

        Where the applicant (or the person giving their consent) is entitled to be registered as proprietor, evidence of that entitlement must be lodged. Three common examples where someone may be entitled to be registered as proprietor are where:

        • they have recently taken a transfer of the estate or charge but have not yet become registered as proprietor. For example, where form AN1 is lodged at the same time as the application for registration

        • the sole relevant proprietor has died and is the personal representative

        • they are the trustee in bankruptcy of the relevant proprietor and the estate or charge forms part of the bankrupt’s estate.

        Where there are joint proprietors or there are persons who, jointly, are entitled to be registered as the relevant proprietor, all must consent or join in as applicants. 

        Any consent lodged with the application may be given in panel 15 of form AN1 or it may be lodged separately.

        4.7 Variation of a noted interest

        Where an interest that has been noted in the register is varied, the priority of the interest, as varied, should be protected in the register – see

        Practice Guide 19 – Notices, restrictions and the protection of third party interests in the register

        4.8 Cancelling and removing notices from the register

        4.8.1 Cancellation of a unilateral notice

        ‘Cancellation’ of a unilateral notice is the term used16 to describe the procedure whereby the beneficiary of the notice is required to prove the validity of the interest claimed. If they cannot do this, the notice is cancelled.

        16 S.36, LRA 2002.

        Only the relevant proprietor (or someone entitled to be registered as the relevant proprietor) may apply to cancel a unilateral notice but they may do so at any time without giving reasons for doing so.

        If the application is made by someone entitled to be registered as the relevant proprietor, the applicant must also provide evidence of their entitlement. The registrar will accept a conveyancer’s certificate to confirm the applicant’s entitlement.

        An application to cancel a unilateral notice must be made in form UN417. There is no fee for making the application.

        17 S.36, LRA 2002 and r.86, LRR 2003.

        When an application to cancel a unilateral notice is received the registrar will serve notice of the application on the beneficiary, who then has a set period of 15 business days in which to object to the application. If the beneficiary does not object to the application within that period, or any extension to it, the notice is cancelled.

        If the beneficiary does object, they will need to set out the grounds for their objection since we will first consider whether the objection has any chance of success. If it cannot succeed, it will be cancelled18. To succeed the beneficiary will have to provide details of the law or facts which entitle them to the notice.

        18 S.73(6), LRA 2002.

        Once we have established that an objection is not groundless we will give details to the applicant. Any dispute about whether the notice should be cancelled that cannot be resolved by agreement will be referred to the Adjudicator to HM Land Registry. See Practice Guide 37 – Objections and disputes – A guide to Land Registry practice and procedures and Practice Guide 38 – Costs for more information.

        4.8.2 Removing a unilateral notice

        An application to remove a unilateral notice must be made by the registered beneficiary, by their personal representative or trustee in bankruptcy or by a conveyancer on behalf of the applicant.

        The application must be made in form UN219. No fee is payable for an application to remove a unilateral notice.

        19 R.85, LRR 2003.

        4.8.3 Cancellation of an agreed notice

        An application to cancel an agreed notice must be made in form CN120 and must be accompanied by appropriate evidence to satisfy the registrar that the protected interest has come to an end. There is no fee for making the application.

        20 R.87, LRR 2003.

        Neither the LRA 2002 nor the LRR 2003 restrict who may apply for cancellation, but the registrar may only approve the application if satisfied that the interest protected has come to an end. If the interest protected by the notice has only come to an end in part, the registrar must make an appropriate entry.

        5 Caution against first registration

        Where the legal estate affected by the overriding interest is unregistered, the person with the benefit of that interest may make an application to register a caution against first registration. For further information about cautions against first registration generally see Practice Guide 3 – Cautions against first registration.

        In the case of an affecting franchise it is possible to register a caution against first registration of that franchise and against registration of any estate in land that it affects.

        Although it is possible to register a caution against first registration of a relating franchise (rather than against the land to which it relates), such a caution will not provide protection on an application for first registration of the land to which it relates, as it does not affect

        21 that land
        ie the owner of the relating franchise is not entitled to an interest affecting a qualifying estate within s.15(1)(b), LRA 2002.

        5.1 The nature and effect of cautions against first registration

        The effect of a caution against first registration is very limited. It entitles the cautioner to be given notice by the registrar when there is any application for first registration affecting the land comprised in the caution against first registration22 or when the owner of the legal estate to which the caution relates applies to cancel the caution23.

        22 S.16, LRA 2002.

        23 S.18(3), LRA 2002.

        On receipt of the notice the cautioner must then, within the prescribed notice period24, decide whether to object to the application for first registration. For further information about the practice and procedure relating to objections see

        Practice Guide 37 – Objections and disputes – A guide to Land Registry practice and procedures
        .

        24 See r.197, LRR 2003A caution against first registration has no other effect at law and in particular does not confirm the validity of, or confer any priority upon, the interest of the cautioner.

        5.2 The duty to act reasonably

        A person must not lodge a caution against first registration without reasonable cause. If they do, they owe a duty to anyone who suffers damage, and the person adversely affected may bring an action for damages25.

        Even if the interest has not been protected by the entry of a notice in the register the land will remain subject to it. But, unless such a notice is entered, a person who acquires the registered estate for valuable consideration by way of a registrable disposition after 12 October 2013 will take free from that interest27. Until such a disposition is registered the person having the benefit of the interest may apply to protect it by entry of notice.27 S.29, LRA 2002.

        25 S.77, LRA 2002.

        5.3 Applying for a caution against first registration

        5.3.1 Application form

        An application for a caution against first registration must be made in form CT1.

        5.3.2 Extent of land to which the caution relates

        The form CT1 must provide sufficient particulars to enable the extent of the land affected by the caution to be identified on the Ordnance Survey map26. In the majority of cases it will be necessary to supply a plan unless a postal description identifies the property. Where a plan is used it must be prepared to a suitable scale and show clearly, by edging or other reference, the precise extent of the land to be subject to the caution. If you do not provide a plan and we cannot otherwise identify the property, we will reject the caution application.

        26 R.42, LRR 2003.

        Relating franchises do not affect land but a caution may be lodged in respect of first registration of such a franchise – see section 5 Caution against first registration. If in order the caution will be registered in the index of verbal descriptions kept under r.10(1)(b), LRR 2003.

        5.3.3 Details of the nature of the cautioner’s claim

        Details of the nature of the interest the cautioner claims must be set out in panel 10 of form CT1, which is a statement of truth made either by or on behalf of the cautioner or by a conveyancer.

        The cautioner is not required to lodge any other document in support of their claim.

        6 Interests not protected by notice or caution against first registration before 13 October 2013

        Where any of the interests the subject of this guide have not been protected by notice or caution against first registration before 13 October 2013, they do not automatically cease to exist on that date. The position is as set out below.

        6.1 The land was registered after 12 October 2013

        Prior to first registration the legal owner of the land will be bound by any such interests because each of them is a legal interest. On first registration they will hold the estate free of such interests unless they are protected by notice at the time of first registration.

        6.2 The land was registered before 13 october 2013

        Even if the interest has not been protected by the entry of a notice in the register the land will remain subject to it. But, unless such a notice is entered, a person who acquires the registered estate for valuable consideration by way of a registrable disposition after 12 October 2013 will take free from that interest27. Until such a disposition is registered the person having the benefit of the interest may apply to protect it by entry of notice.

        27 S.29, LRA 2002]. 

 

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