Title Burdens
Schedule V to the 1970 Act lists the burdens which are required to be registered so as to affect registered title land. These include a wide range of interests including, in particular,
- charges,
- fee farm rents,
- liens for unpaid purchase money,
- leases for over 21 years,
- judgments or enforcement orders,
- pending actions,
- charging orders,
- easements, and profits created by express reservation after first registration
- restrictive covenants created after first registration,
- certain rights of residence.
- Burdens have priority in order of registration.
See the separate chapter in relation to the creation of registered charges on title. Formerly, certificates of charges were issued in respect of charges to the chargee/mortgagee. Their production was required on certain dealings with the charge.
It was possible to create a mortgage by deposit of the land certificate or a charge certificate over the title or the charge, without registration in the Land Registry. Legislation designed to facilitate econveyancing has removed this possibility.
The non-production of the certificate was deemed sufficient evidence that such a charge may exist. The mortgagee could register a notice of deposit in the Land Registry if he saw fit.
A right of residence may be registered as a general right of residence or exclusive right of residence on all or part of the property and rights to use in tandem with the residence right. The right is deemed personal. It binds the registered owner and successors.
An appurtenance such as an easement which benefits the party concerned may be noted on Part I of the title to the dominant tenement. It must be registered as a burden on the servient tenement if that title is land registered title. Pre-1970 burdens may not appear on older folios.
Persons may be registered as the owner of land as sole owners or joint owners. Where the land is transferred to two owners, they are presumed to hold as joint tenants unless an entry to the effect is made that they are tenants in common.
Trusts are not generally entered on the register. Trustees may be registered as full owners without any indication of the trust.
A purchaser is not subject to the trust unless he has notice of its existence. Beneficiaries can protect themselves against dealings by the trustee and breach of trust by registering cautions or inhibitions.
The life tenant or person having the powers of the life tenant under the Settled Acts may be registered as a limited owner of a freehold or leasehold estate. Where nobody falls into this category, the trustees of the settlement are registered.
Generally an unregistered transfer or mortgage of property is of no effect against a bona fide purchaser of the registered title for valuable consideration who registers. A transferee not for value, and other persons who claim through him, other than for value are bound by unregistered rights which affect the transferor and the registered title.
Certain classes of rights of necessity affect registered land without registration. A purchaser of registered title land must investigate whether such burdens exist by appropriate queries and inspection. It is possible for such burdens to be noted on title but this would be unusual as they affect irrespective of noting.
The rights of a person in actual occupation are preserved without registration. Accordingly, if such a person has a beneficial interest in the property, typically in the case of a spouse or cohabitant who has made contributions towards mortgage payments, those rights are not affected by a transfer by the registered owner.
The buyer or mortgagee must enquire of all occupiers. If there is any question of their having the rights to the property, their consent should be obtained or they should enter documents transferring or subordinating the rights to the transferee or mortgagee.
Rights in the course of acquisition under adverse possession affect land without registration. A squatter may himself apply for registration under the a procedure. However, his title will be possessory and is without prejudice to any other better title which may be asserted.
Leases under 21 years affect the land without registration provided that occupation goes with the lease. The lease terms, conditions, covenants, and liabilities affect leasehold title without being set out on the register. It will be evident, however, that the property is held under the lease. Accordingly, the lease must be examined in each case.
Easements and profits created prior to first registration affect land without registration. The same applies to easements and profits acquired by prescription and long and implied grant after first registration.