Need to Know: Overriding Interest and a 2013 deadline

Were I to mention 13 October 2013, would it mean anything to you? Mostly likely not. It is, however, the date on which overriding interests affecting land in England and Wales will lose their automatic protection. And why might one care about that? Well, if you either own overriding interests, or have received a letter from the Land Registry stating that someone else owns an overriding interest that affects your property, you probably do care and would be well-advised to have a passing knowledge of the ramifications of the 2013 deadline. Letters from the Land Registry have probably been the most visible - but least understood - manifestation of that deadline and with that in mind, I have set out some background and explanation below, which I hope will help allay any concerns.

The Land Registry is the statutory body which is in the process of creating a comprehensive register of all the land in England and Wales; who owns it, what rights it is entitled to the benefit of and what rights others have over it. When all of the land is registered, it should provide a snapshot of any particular parcel of land in the country making buying, selling and land management much easier. One of the (many) problems in creating this comprehensive register, however, is deciding what to do with the various historic nooks and crannies of English property law. Whilst they may have made perfect sense in 1700, many are considerably less relevant now. Overriding interests are just one such nook.

Sporting rights can come under overriding interests as part of the new registration process

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Overriding interests are so-called because they do not need to be registered at the Land Registry in order to bind the owner of the land. If, therefore, you buy land which is subject to an overriding interest, it will bind you, even although you probably did not know it existed, nor did it appear on the registered title (or title deeds if the property is as yet unregistered). You see the problem. Fortunately, it sounds worse than it actually is; of the six types of overriding interest, five of them live up to the Law Commission's description of them as "relics from the past ... of an unusual character".

The sixth, manorial interests, however, can include either sporting rights, or the ownership of mines and minerals, both of which are decidedly of the present. These rights were often reserved to the Lord of the Manor either when former copyhold land was enfranchised, or when land was inclosed [sic]. This means that although the surface land was owned by one person, the mines and minerals, or sporting rights could still be reserved to the Lord of the Manor. Where this is the case, many of the people or bodies who now own the Lordships of the Manor are seeking to protect those rights by registration before they lose their overriding status. Often the first the surface owner knows of it, is the Land Registry's letter, plopping onto their doormat.

Overriding interests can be protected before the 2013 deadline in two ways; the first is by applying to the Land Registry to have a notice entered on the title register of the land affected stating that the mines and minerals (for example) are owned by someone else. This is what has prompted the letters, as the Land Registry must serve notice of the application on the registered owner of the surface land. The second way (where the land is unregistered) is by entering a caution against the first registration of the land. A caution means that when an application is made to register the land, the cautioner is notified and can then ensure that an appropriate note is made of his overriding interests. To be clear, therefore, the applications to which these letters relate are not seeking to create a new right over land, but rather to make a formal note of something which already exists.

If left unprotected after the deadline, overriding interests will not suddenly cease to exist on 13 October 2013, but will rather be at risk of being accidentally extinguished. This could happen if the land affected is either sold or registered at the Land Registry, without notice of the rights being given either to the buyer, or the Land Registry, in which case the (new) owner of the land, will own the land free from the rights.

I think the Land Registry is in for a busy time over the next 11 months......

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Despite being one who feels the cold, Elizabeth Earle moved to Northumberland and has worked there as a solicitor with the firm of Dickinson Dees LLP, in the Agriculture, Farms and Estates Team, where she started life as a trainee in 2003. As part of this specialist and nationally renowned team, she works both for a number of larger estates, organisations and trusts on an ongoing basis and also acts on one-off matters, covering the range of rural property law, including; sales and purchases, sporting rights, rights of way, easements and tenancies, to name a few.

Outside the office, she nearly managed to get sent to the North Pole, occasionally hunts with the CVNNH and is currently working on improving her marathon time. She lives with her husband and two dogs.