Sommer v Sweet [2005] EWCA Civ 227
This case serves as a reminder that the noting of a matter on a title does not guarantee that the underlying interest is valid. Old deeds are sometimes useful in establishing that a right of way was effectively granted or a restrictive covenant was effectively imposed. Under the Land Registration Rules 1925, the class of overriding interests could sometimes save a property owner’s right. Conversely, it could make the “servient” owner vulnerable to all sorts of claims.
Under the Land Registration Act 2002 (the 2002 Act), the class of overriding interests is defined more narrowly (and will diminish further with time). Legal easements only are overriding interests, either upon first registration or upon a disposition of registered land. However, para 9 of Schedule 12 to the 2002 Act also preserves certain other easements upon disposition. These would have constituted overriding interests prior to the 2002 Act coming into force, but do not constitute overriding interests if they were created after that date (for example, equitable easements). Thus, if an estoppel or equity arose before 13 October 2003, the easement will be an overriding interest on a disposition today or in 50 years’ time. If the estoppel or equity were to arise today, however, the easement would not constitute an overriding interest (although it would of course bind the party that gave rise to the estoppel or equity).
David Williams and Emma Slessenger are members of the real estate know-how team at Allen & Overy LLP
Sommer v Sweet [2005] EWCA Civ 227
This case serves as a reminder that the noting of a matter on a title does not guarantee that the underlying interest is valid. Old deeds are sometimes useful in establishing that a right of way was effectively granted or a restrictive covenant was effectively imposed. Under the Land Registration Rules 1925, the class of overriding interests could sometimes save a property owner’s right. Conversely, it could make the “servient” owner vulnerable to all sorts of claims.
Under the Land Registration Act 2002 (the 2002 Act), the class of overriding interests is defined more narrowly (and will diminish further with time). Legal easements only are overriding interests, either upon first registration or upon a disposition of registered land. However, para 9 of Schedule 12 to the 2002 Act also preserves certain other easements upon disposition. These would have constituted overriding interests prior to the 2002 Act coming into force, but do not constitute overriding interests if they were created after that date (for example, equitable easements). Thus, if an estoppel or equity arose before 13 October 2003, the easement will be an overriding interest on a disposition today or in 50 years’ time. If the estoppel or equity were to arise today, however, the easement would not constitute an overriding interest (although it would of course bind the party that gave rise to the estoppel or equity).
David Williams and Emma Slessenger are members of the real estate know-how team at Allen & Overy LLP
