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Covenant not included on first registration?

Land, Registered Land, Planning law etc.

Re: Covenant not included on first registration?

Postby tph » Tue Sep 01, 2015 8:51 pm

Surely if the pipe has been in place since 1934 an easement by prescription exists regardless of the legal documents.
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Re: Covenant not included on first registration?

Postby theycantdothat » Wed Sep 02, 2015 8:10 am

w00ster wrote:Re the easement, Is it possible to apply to the Land Registry to get the easement noted on the registration for Farm C.


Not sure about that. You will have to ask the Land Registry. Whilst it will clearly help you in your discussions with your neighbour if the easement is noted on his title, it will not change the position. If the easement is noted on your title that is conclusive.

w00ster wrote:If so does anyone have any suggestions as to what documentation is required, other than my own conveyance?


None.

w00ster wrote:FYI my property was first registered in November 2002 and farm C in March 2000. Does that make a difference?


No.
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Re: Covenant not included on first registration?

Postby theycantdothat » Tue Sep 08, 2015 8:47 am

In this case the OP does not need to fall back on prescription to establish his right because it is set out on the register and the register is conclusive. If that were not the case then on a purchase a conveyancer would have to investigate the titles to all land over which any easement was exercised.

When it comes to the benefit of easements and registered land:

(a) If the easement is noted on the register you have it.

(b) If the easement is not noted on the register you may still have it. This is because easements can arise (i) by prescription (ii) under the rule in Wheeldon v Burrowes (iii) under section 62 of the Law of Property Act 1925 (iv) by a deed granted made before first registration but not noted on the register.

We can note that technically in this case prescription cannot apply because one of the requirements is that the right was exercised without permission. The neighbour only has to point to the OP's title and say that since an easement was granted permission was given. (His argument, which will fail, will of course be that even though the easement was granted it does not bind him.)
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Re: Covenant not included on first registration?

Postby Thomas&22 » Mon Apr 25, 2016 12:40 pm

What rights does the OP have if the Pipe carrying the water to farm C runs from an old reservoir on the land of Farm D. There is no reference to farm D in the OPs deeds. How would the OP protect the supply of water? What happens if the pipe on Farm Ds land is not visible as it is underground? Can a prescriptive easement be claimed where there is no physical evidence of the pipe?
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