Overriding Burdens

Overriding / S.72 Burdens

Certain classes of rights and interests (so-called section 72 burdens) bind registered titles without registration.  Generally, they are rights and interests which may be discovered by physical inspection of the property.

This is similar to the general principle applicable to unregistered titles, that a buyer purchases subject to interests that would be discoverable on inspection.  It is possible to register a section 72 burden if desired.

Occupiers

The rights of persons in occupation or in receipt of rents or profits affect registered title without registration. This is a very broad category. It covers a person in the property who may have a legal or equitable interest, which is not readily apparent. It does not apply if, on enquiry to the rights holder, the interest is not disclosed.

An occupier may have an equitable interest by way of resulting trust if he has contributed to the purchase price, (or the redemption of a funding mortgage) of the property. A buyer or mortgagee may be subject to the interest, of the occupier concerned unless the occupier transfers or charges whatever equitable interest he may hold.

Leases

A lease for a term of less than 21 years, or any lesser estate or interest where the holder of the right is in occupation, affects registered title without registration on it.

A similar principle applies under the Registry of Deeds legislation.  A lease for a term less than 21 years,  where occupation does not go with the lessee’s title, must be registered in order to affect registered title.

Rights by Possession and Use

Rights acquired or in course of being acquired by adverse possession affect registered title without registration. This covers squatters and other instances whereby title is acquired by possession for more than the period, in which a person with the documentary title holder ( by deeds or Land Registry title) may bring legal action to reclaim possession.

Such rights, once acquired, are superior to the rights of all persons including a purchaser for value from the registered owner. The person in possession may apply to the land Registry for a possessory title.

Easements and profits a prendre, other than those acquired by grant or deed after first registration bind registered title without registration. Under 2009 legislation,  registration of easements established by long use was to be required in the Land Registry, in order to establish them as legal easements. The 2021 legislation repealed this requirement before it applied, so that easement and like rights not acquired by deed, continue to affect land without registration.

Public Rights

Rights of the public or any class of the public affect land without registration.  This will typically include public rights acquired by long use such as a public right of way.

Customary rights, franchises and liabilities fall into a similar category and affect land without registration.

Other less common categories of rights are prescribed by Ministerial Order from time to time.  Several include statutory wayleaves for public utility purposes.

Pre-Registration Reservations

Where land is registered with a possessory, qualified or good leasehold title, all rights excepted from the effect of registration affect title without registration. The rights of superior interests holder, adverse to those of the lessor may be reserved when a property is registered with a good leasehold title.

In the case of freehold land registered with a possessory title, a transfer of the land shall not affect any right adverse to the title of the first registered owner and subsisting or capable of arising at the time of the registration of such owner. This includes any rights affecting the owner under a former interest held (historically as tenant farmer).

Land Purchase Acts

Land purchase annuities affect land without registration.  However, in practice, annuities or rentcharges for the repayment of advances made under the Land Purchase Acts were registered.

Some such still exist, due to the long payback period. Many have been written off and continue to be written off as the value of the nominal amounts has been eroded due to decades of inflation. Legislation wrote off land purchase annuities below a certain value.

The rights of the Land Commission or of any person under a vesting order, vesting fiat, final list or transfer order made or published under the Land Purchase Acts and the rights of the Land Commission upon the execution of an order for possession affected registered title without registration.

The Land Commission has been wound up and its successor is the Department of Agriculture. Many such rights are, therefore of historical interest only.

Rarely Found Charges and Rents

Land improvement charges and drainage charges under statutory schemes for drainage improvement and reclamation affected land without registration;

Tithe recharges affect lands without registration. These were rent charges in lieu of tithes, provided for under 1838 legislation which reformed titles payable to the established church. They are now rare.

Many quit rents (many dating from the 16th and 17th centuries) affect registered titles without registration. Some such rights arose from enfranchisement in the 19th century.  Many such rights were acquired by the Land Commission and have been written off by the State, or effectively abandoned.

The following also affect registered title without registration.

• a perpetual yearly rent which is superior to another such rent  registered as a burden on registered land and which, as between the said registered land and the registered rent, is primarily payable out of the registered rent in exoneration of such land
• the covenants and conditions contained in the deed or other document creating the superior rent, in so far as those covenants and conditions affect such land;

Formerly, estate duty and capital acquisitions facts affected land without registration.  The statutory charge was removed in 2010.

Purchased Ground Rents

Covenants that are deemed by law to continue to affect the freehold interest after the former long lessee has acquired that interest, continue to affect land without registration.

Where a person acquires the fee simple in land, covenants other than a covenant specified below cease to have effect and no new covenant shall be created in conveying the fee simple.

A covenant which

• protects or enhances the amenities of any land occupied by the immediate lessor of the grantee, or
• which relates to the performance of a duty imposed by statute on any such person, or
• which relates to a right of way over the acquired land or a right of drainage or other rights necessary to secure or assist the development of other lands,

continues in full force and effect.

Statutory Restrictions

Statutory restrictions under some older housing legislation on letting, assignment, mortgaging and transfer of “social housing” property affect registered title land without registration. Under modern housing legislation, such rights are registered on the title.

The Land Registry is now obliged to enter notes on folios of any statutory restrictions on alienation (transfer and other dispositions).

Policy to Reduce

The policy of the law has been to reduce the extent of such rights. This would be necessary to facilitate e-conveyancing. The 2009 Act land law reforms have required the registration of legal easements. In England, the equivalent categories have been severely limited.

Many of the historical rights above, which affected the land on registration, are in effect removed by the passage of time. They may be barred from enforcement in many cases, where they have not been exercised for 12 years.

An application may be made to the Land Registry to convert the title to absolute.  This is in contrast to the rights of a landlord under a long lease which is never barred until it falls in.