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Covenant not included on first registration?

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Covenant not included on first registration?

Postby w00ster » Sun Jul 19, 2015 11:57 am

I live on a farm. In the past the water to the farm came from a well half a mile up the hill. The pipe from the well runs through land of 2 other farms to my farm.

My deeds states that it has the benefit of a "free and uninterrupted flow of water through the pipes shown on the plan running through the lands of farm B and farm C. Plus that farms B & C must not interfere with this right." It also mentioned that the owner of my farm can enter farms B and C to repair, Renew or replace the pipes. The covenant referred to is from 1934.

The details of this requirement is listed as a restrictive covenant on the charges register for farm B.

However, the first registration for farm C did not include any mention of the water pipe etc.

The water recently stopped running and it has become apparent that it has broken on the land of farm C as a new stream has appeared.

I use the water for my livestock and therefore want to get the supply back.

The current owners of farm C are not willing to permit me to dig up their field to repair the pipe. They like the new stream as they now use that for their own cows. I offered to share the water with him by splitting the pipe and running it to a new trough on his land but he said no!

They say they are not bound by the covenant as it wasn't included at first registration in 2003.

Is this correct?

If so are there any other laws etc which would enable me to enter their land to repair the pipe?

Many thanks.
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Re: Covenant not included on first registration?

Postby theycantdothat » Sun Jul 19, 2015 3:12 pm

There is one point you need to check. Although the right may not be specifically mentioned it may be on the register because it is included by an entry such as: "The property has te benefit of the rights set out in a conveyance dated 1934."
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Re: Covenant not included on first registration?

Postby w00ster » Sun Jul 19, 2015 5:59 pm

Thank you for your reply theycantdothat. Sorry to be dim but did you Mean my HM land certificate?

If so it says "the land has the benefit of the rights granted by the conveyance dated xx/xx/1934 referred to in the charges register.

The charges register bit It states that the lands is subject to such matters regarding water rights as were contained in an agreement between X and Y dated xx/xx/1932. No further details were provided on first registration.

This appears to be a sea Separate agreement from the 1934 conveyance but assume is regarding the same water?
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Re: Covenant not included on first registration?

Postby atticus » Sun Jul 19, 2015 7:22 pm

One for the property law nerds: is this an overriding interest (if they still exist)?
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Re: Covenant not included on first registration?

Postby w00ster » Fri Jul 24, 2015 11:32 am

Thanks, atticus. Are there any members on here who would like to discuss 'overriding interests' further ?

I have a plan showing the water pipes running through all the properties.
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Re: Covenant not included on first registration?

Postby theycantdothat » Fri Jul 24, 2015 8:05 pm

When it comes to easements (which is what we are talking about and not restictive covenants) it goes more or less as in the following example when easements were granted when all the land was unregistered.

A grants an easement to B over Whiteacre for the benefit of Blackacre. Both properties are unregistered. Assuming it is granted in fee simple (which it will be unless there is an indication to the contrary) it will go on indefinitely and nothing except one of the recognised ways of ending easements will end it. That means it will bind any future owner of Whiteacre whether he knows of the existence of the easement or not. The position does not change when Whiteacre is registered - it would clearly be unfair if it did. What often happens is that duplicates or copies of deeds granting easements do not get put with the deeds of the land they are exercised over. If that was the case for Whiteacre and there was no mention of the deed granting the easement in any deed then on first registration the easement will not be noted on the register. The easement does though still exist. The law provides that in such cases the easement is an overriding interest. All the owner of Blackacre needs is to show he has title to the easement. If unregistered he will produce the deed and if registered refer to the property register of his title.

So, if the "conveyance dated xx/xx/1934 referred to in the charges register" shows your property has the water right then you have it. Period. The fact that it is not on the title of Farm C does not change the position.
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Re: Covenant not included on first registration?

Postby dls » Sat Jul 25, 2015 6:50 am

It should be mentioned also that after the LRA 2002 it became policy on all new registrations that, so far as possible, a reading of the register would display all such matters on any new register.
The new system has had substantial difficulties.
The new system was thought better exactly because, before then, so many sorts of right were not so revealed.

As TCDT says (that may end up on my grave stone) the old system worked well in law, but left more than a few red faced land-owners waving land registers over fences and shouting out nonsense.

The real lesson before anyone departs is, when you have a victory over your neighbour, to use it to re-establish good terms, and make up. You do not have to jump into bed with his sheep, but take every naturally offered opportunity to greet in a positive manner.

Next time he might be right.
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Re: Covenant not included on first registration?

Postby theycantdothat » Sat Jul 25, 2015 9:26 am

An ideal system of title registration operates on the mirror principle, that is the register is complete so that a property is only subject to the matters referred to on the register, but equally only has the benefit of matters referred to on the register. That give complete certainty.

For historical reasons certainty was never going to be possible in England and Wales. The provisions in the LR Act 1925 relating to overriding interests more or less reflected what traditional deeds were likely to show. As mentioned above, it was quite possible to buy unregistered land without being aware it was subject to certain incumbrances and the same applied to registered land - it had to to avoid landowners being deprived of rights.

It was concluded that the whole system needed updating, hence the LR Act 2002. When it came to overriding interests the same historical reasons still applied - there are thousands of registered titles where the land is subject to incumbrances not revealed by the register as well as many unregistered titles which when registered will not show incumbrances the land is subject to. There was though a wish to get nearer to the mirror principle especially when it came to rights arising after land was registered. That led to two different categories of overriding interests (a) Unregistered interests which override first registration and (b) Unregistered interests which override registered dispositions. Unfortunately all that did was create, as dls says, substantial difficulties. However, there is no problem for W00ster as for him the position is the same as it was before the LR Act 2002 came into force.
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Re: Covenant not included on first registration?

Postby w00ster » Mon Jul 27, 2015 1:24 pm

Thank you dls and theycantdothat for your comprehensive responses.

dls I am trying to be as cooperative as possible with farmer C, however that hasn't proved successful, therefore I will try once more now that I am a bit more confident that I have an easement and see if that changes his mind!

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

If so does anyone have any suggestions as to what documentation is required, other than my own conveyance? FYI my property was first registered in November 2002 and farm C in March 2000. Does that make a difference?

Many thanks
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Re: Covenant not included on first registration?

Postby dls » Mon Jul 27, 2015 3:13 pm

dls I am trying to be as cooperative as possible with farmer C, however that hasn't proved successful,


Keep doing so - forever. Memories last a long time between neighbours who never move.

we have not seen your documents so cannot properly say - and you should get it confirmed, but you do not need to improve on that which has, in law, been perfected.
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