What Are Overriding Interests?
Overriding Interests are interests which are not registered at the Land Registry and therefore are not noted on the legal title but to which a registered title is subject. They are binding upon the registered proprietor and any person who has an interest in the property.
An example of these rights are as follows:
1. A customary of public right, rights by custom which benefit a more limited class of people rather than members of the public generally - i.e. a right of way for parishioners to a parish church, a right of freemen and the widows of freemen of the Borough of Huntingdon to pasture and graze beasts on certain common land;
2. A public right, these are rights which are presently exercisable and not extended to potential rights – i.e. rights of fishing, rights to discharge in a public sewer, rights of way along highways;
3. A franchise i.e. the right to hold a fair;
4. A local land charge – a local land charge search is carried out as part of the local search we put in place;
5. A legal easement – i.e. drainage rights, rights to run pipes and cables under the land. Such rights are not noted in the register but have been used for many years;
6. An interest in any coal or coal mine and the rights of any persons as noted in the Coal Industry Act of 1994.
Under the provisions of the Land Registration Act 2002, it is a requirement to disclose to the Land Registry any interests affecting the property. These are known as “disclosable overriding interests”. The Land Registration Act 2002 aims to reduce the amount of overriding interests and to replace them with registered entries on the title. There was an obligation to disclose the interest however, this is limited to the interests which are within the knowledge of the person making the applications and excludes any interests which cannot be protected by notice.
As of the 12th October 2013 certain rights lost their overriding status and these included manorial rights, rights in respect of the repair of a church chancel, a non-statutory right in respect of an embankment, river or sea wall. Whilst the right can no longer take effect this does not mean they have ceased to exist and may still be binding on the land.
A proprietor of registered land which has been transferred for value since 12 October 2013, or was first registered after 12 October 2013, will not be bound by a former overriding interest which has not been noted on the title. However, land which has been sold not subject to value can still be bound by such an interest.
All legal easements and profits à prendre (the right to take natural resources from another’s land) that existed before the provisions of the Land Registration Act 2002 came into force will override the first registration of land. These can include rights of people in actual occupation who could be unaware of their legal rights, rights of way which were not registered as it was not clear who should do the registration, rights of light and rights of support.
Under the residential sale contract standard conditions, a well walked path across a smallholding/garden would be seen as being there from inspection and the buyer should have been aware at this time from seeing the same.
To conclude, it is advisable for a buyer to ask owners/occupiers of neighbouring properties whether there are any unobvious easements that have been exercised over the last year.
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