Legal Easements

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                     Leases: easements in
                     leases
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Leases: easments in leases




                             Leases: easements in leases
                             This desk-aid relates only to easements created by express grant
                             or reservation. For other methods of acquisition see Land Registry
                             Practice Guide 62 – Easements.

                             Leases granted before 13 October 2003
                             If a lease was incapable of registration under the LRA 1925, any
                             legal easements in the lease did not have to be registered.

                                  — If the servient land was unregistered at the time of the
                                    grant, the legal easements are binding and override first
                                    registration of the servient land (Schedule 1, paragraph 3
                                    LRA 2002).
                                  — If the servient land was registered at the time of the grant,
                                    the legal easements took effect as overriding interests
                                    (s70 LRA 1925) and remain overriding under the LRA 2002
                                    (Schedule 3, paragraph 3).

                             The protection of equitable easements lay with the registration of
                             a Class D(iii) land charge where the servient land was unregistered,
                             or by entry of a notice where it was registered.

                             The disposition of a previously unregistrable lease, on or after
                             13 October 2003, will invoke compulsory registration if the term
                             of the lease has more than seven years left to run at the time of
                             the disposition. In this case Land Registry will investigate the
                             easements in the lease as part of the first registration application
                             and note the burden without a separate application.

                             Leases granted on or after 13 October 2003
                             Legal easements created on or after 13 October 2003 must be
                             registered to take effect in law (s27 LRA 2002). This does not
                             include easements granted as a result of the operation of s62
                             LPA 1925.

                             Registration is required even where the lease itself cannot be
                             registered. Failure to register means that the legal easements
                             only take effect in equity.

                             Equitable easements must still be protected by a Class D(iii) land
                             charge where the servient land is unregistered, or by an agreed
                             or unilateral notice (using form AN1 or UN1) where it is registered.

                             Registrable leases
                                  — With a first registration, easements in the lease will be
                                    investigated by Land Registry and noted automatically
                                    against any registered servient land. An application to
                                    register the benefit on another title must be made using
2                                   a form AP1.
Training resourses
Leases: easments in leases




                                   — With a lease that is a disposition of a registered estate
                                     drawn using prescribed clauses, clause LR11.1 must refer
                                     to the beneficial easements in the lease, or a separate
                                     application in form AP1 must be made, otherwise Land
                                     Registry will not register the easements against the
                                     landlord’s immediate reversionary title and the registration
                                     requirements of s27 LRA 2002(see r.90 LRR 2003) will not
                                     be met. Where rights are also granted over any additional
                                     land of the landlord, the title number must be referred to in
                                     clause LR2.2 or in a separate application in form AP1.
                                   — Where a separate application is required a form AP1 must
                                     be used. The use of a form AN1 (agreed notice) or UN1
                                     (unilateral notice) will not satisfy the registration
                                     requirements of s27 (see r.90 LRR 2003) and where an
                                     application is made in form AN1, a note will be added to
                                     the register entry to that effect.
                                   — Where the servient land is unregistered a legal easement
                                     will bind a subsequent purchaser and will override on first
                                     registration of that land (Schedule 1, paragraph 3 of the
                                     LRA 2002). However, the dominant owner can apply for a
                                     caution against first registration of the servient land (using
                                     form CT1) to obtain notice of its registration so that the
                                     right can then be noted.

                             Easements granted out of registered land are dispositions
                             The grant of an easement out of registered land is a registrable
                             disposition (s27 LRA 2002), and the application to register the
                             easement must be accompanied by a form DI (Disclosable
                             Overriding Interests) revealing the existence of certain overriding
                             interests that affect the estate (s71 LRA 2002).

                             This means that where the lease that created the easement cannot be
                             registered but is capable of being noted and is out of the same title as
                             the land affected by the easement, it must be revealed on a form DI.
                             It will then be noted at the same time as the easement is registered.

                             Leases that cannot be registered
                             Where a lease granted on or after 13 October 2003 cannot be
                             registered, any legal easements granted or reserved by the lease
                             over registered land must still be registered (s27 LRA 2002). Form
                             AP1 should be used. The use of a form AN1 or UN1 will not satisfy
                             the registration requirements of s.27 and a note to this effect will
                             be added to the register entry where an AN1 has been used.

                             Leases that cannot be registered or noted
                             With the exception of some reversionary leases, leases dated on
                             or after 13 October 2003 for a term of three years or less cannot
                             be registered or noted. These leases do not have to be by deed,
                             but where a deed has been used any legal easements granted in
                             the lease over registered land must still be registered.
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Training resourses
Leases: easments in leases




                             If the lease is by deed, a form AP1 must be used to register the
                             easement against the servient land as the use of a form AN1 or UN1
                             will not satisfy the registration requirements of s.27. A note to this
                             effect will be added to the register entry where an AN1 has been
                             used. A form DI may also be required as explained earlier.

                             If the lease is not by deed, but merely in writing, any easements in
                             the lease will only be equitable, as legal easements must be created
                             by deed. In this case the easements are not a registrable disposition
                             and can only be noted using form AN1 or UN1. Form DI is not
                             required.

                             Where the servient land is unregistered, the easements should be
                             protected by a Class D(iii) land charge.




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