Overriding interest

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In<a href=lawglos_RegisteredConveyancing.html>registered conveyancing</a>, when a person buys a legal <a href=lawglos_EstateInLand.html>Estate in land</a> which has RegisteredTitle, he will not be bound by any third-party interests in that land, unless they are noted on the register, or are deemed to be overriding. Some interests are overriding because it would be unreasonable to expect their owners to register them, particularly where they are obvious. Others were made overriding to relieve the administrative burden on the<a href=lawglos_LandRegistry.html>land registry</a>, which is a less creditable reason in these days of computerization.

Under the Land registration act (1925) the list of accepted overriding interests was defined in s.70(1). This provision has now been repealed, and replaced with Schedules 1 and 3 of the <a href=lawglos_LandRegistrationAct2002.html>Editing Land registration act (2002)</a>. Schedule 1 applies to interests that are overriding when the land is registered for the first time, while schedule 3 applies when the land is subsequently sold. Overriding interests in Sch. 3 are narrower in scope than those in Sch. 1, and both are narrower in scope than the 1925 legislation.

Broadly speaking, the following sorts of interest are overriding, both under the 1925 legislation and the <a href=lawglos_LRA2002.html>Lra (2002)</a>.

  • Short leases (although the definition of 'short' has changed)
  • Legal (and perhaps equitable) <a href=lawglos_Easements.html>Easements</a> and profits (see <a href=lawglos_ProfitAPrendre.html>Profit aprendre</a>)
  • Customary and public rights, including rights of way, rights of sheepwalk, rights of drainage, etc. These were, and are, overriding because it is not clear who should have the obligation of registration
  • Rights acquired by<a href=lawglos_AdversePossession.html>adverse possession</a> (squatter's rights)
  • Franchises (rights to hold fairs, collect tolls, etc)
  • <a href=lawglos_LocalLandCharges.html>local land charges</a> (e.g., tree preservation orders)
  • Obligations to repair sea-walls, embankments, and churches
  • Manorial rights (see <a href=lawglos_Manor.html>Manor</a>) (as they are hard to register)
  • Rights to mine or extract minerals (as they are generally obvious)

    In addition, the rights of person in<a href=lawglos_ActualOccupation.html>actual occupation</a> (if any) are automatically overriding, even if they would not otherwise be.

    The following interests are, in general, not overriding, under either the 1925 or 2002 legislation.

  • Beneficial interests under a trust -- these interests should be protected by a <a href=lawglos_Restriction.html>Restriction</a> on the register. The interest of a<a href=lawglos_TenantForLife.html>tenant for life</a> is not overriding even if that person is in occupation.
  • The burden of a <a href=lawglos_RestrictiveCovenant.html>Restrictive covenant</a>, as it is reasonable to expect the owner of the benefit to register it
  • Mortgages, whether legal or equitable, as a competent <a href=lawglos_Mortgagor.html>Mortgagor</a> will take steps to protect it by, e.g., a<a href=lawglos_LegalCharge.html>legal charge</a>
  • Any interest that is obvious from an inspection of the register itself. Thus interests that are registered lose any overriding status they might otherwise have.

    The overriding status of public rights, customary rights, manorial rights, minining and mineral rights, franchises, sea-wall and embankment repair liabilities, and local land charges is largely unchanged in the new Act. The table below compares the overriding interests that have been changed by the 2002 Act with their status in prior to that Act.

    InterestLRA1925LRA2002, first registrationLRA2002, registered disposition
    Lease Overriding under s.70(1)(k) Overriding under Sch.1(1) unless substantively registerable Overriding under Sch.3(1) unless substantively registerable
    Interests of person in actual occupation Overriding under s.70(1)(g) Overriding under Sch.1(2) Overriding under Sch.3(2) unless: not revealed on enquiry, or not reasonably obvious on inspection, unless purchaser has knowledge of the interest
    Interests of person in receipt of rents and profits Overriding under s.70(1)(g) Not overriding Not overriding
    Legal easement or profit Overriding under s.70(1)(a) Overriding under Sch.1(3) Overriding under Sch.3(3) if: obvious on reasonable inspection, known to purchaser, or exercised within previous year
    Squatter's rights Overriding under s.70(1)(f) Overriding under Sch.1(15) if acquired before 2003; overriding otherwise if purchaser has notice Overriding under Sch.3(15) ditto
    Liability to repair church chancel Overriding under s.70(1)(c) Overiding transitionally under Sch.1(16) Ditto, Sch.3(16)

    There are some changes that are more subtle that a cursory reading of the 2002 Act might suggest. First, the wording of Sch.1(2) and Sch.3(2): 'so far as relating to land of which he is in actual occuption'. is intended to remove the effect of<a href=lawglos_FerrishurstVWallcite1998.html>Ferrishurst v Wallcite (1988)</a>, which allowed actual occupation to be enforceable against the title, rather than against the land occupied. Second, although a legal easement is still overriding on a reading of Sch.1 or Sch.3, in fact a legal easement does not become 'legal' until it is registered. When it is registered, it loses its overriding status. This means that an easement that is expressly granted is not overriding; the person to whom it was granted should have registered it.

    A final note: there has been some discussion about the effect of the<a href=lawglos_HumanRightsAct1998.html>human rights act (1998)</a> on overriding interests. It is clearly a worry, and may be a contravention of Article 9 of the<a href=lawglos_EuropeanConventionOnHumanRights.html>european convention on human rights</a> if a person who buys property finds it saddled with obligations of which he did not, perhaps even could not, know. So far problems have only arisen (so far as I am aware) with liabilities to repair a church chancel; one can see a court being sypathetic to a person who buys a house for, say, £100,000, and then finds himself lumbered with a bill for another £100,000 to repair the church roof. However, for the time being such interests remain overriding.

    Land and Property Law