Practice Guide 62 – Easements

Updated: February 2011

Update

This edition of the guide replaces the November 2008 edition. Section 12.2.3 has been amended as a result of the publication of Practice Guide 73 – Statements of truth.

Scope of this guide

This guide deals with the registration of easements under the Land Registration Act 2002. It does not seek to be a general guide to the law concerning easements. This guide is aimed at conveyancers and other legal advisers; you should interpret references to ‘you’ accordingly. Land Registry staff will also refer to it.

1 Abbreviations and terms used

‘LRA 2002’ means the Land Registration Act 2002

‘LRR 2003’ means the Land Registration Rules 2003

‘Fee Order’ means the current Land Registration Fee Order

‘prescribed clauses lease’ means any lease that is required by r.58A, LRR 2003 to contain the prescribed clauses set out in Schedule 1A, LRR 2003.

Unless otherwise stated, it is assumed in this guide that the easement:

• satisfies s.1(2), Law of Property Act 1925 by being “equivalent to a fee simple absolute in possession or a term of years absolute”

• is created by deed

• is created to take effect as a legal easement.

2 Introduction

This guide deals with the registration of easements under the LRA 2002. It does not seek to be a general guide to the law concerning easements.

If an easement has arisen by prescription, Land Registry has additional requirements. These are set out in Practice Guide 52 – Easements claimed by prescription and statutory rights of way for vehicles.

3 Easements and registration: general points

3.1 Easements as registrable dispositions

The express grant or reservation of an easement over registered land is required to be completed by registration (s.27(2)(d), LRA 2002). In other words, it is a registrable disposition. It is no less a registrable disposition if it happens to be contained in a lease, even if the lease itself cannot be registered or noted.

Because it is a registrable disposition, the grant or reservation will not operate at law until the registration requirements have been met (s.27(1), LRA 2002).

Where the registration requirements have been met and the easement is for valuable consideration, the effect of s.29(1), LRA 2002 is that the easement has priority over any interests created before its grant that at the time of registration of the easement are not protected. An interest will only be protected if it is a registered charge, the subject of a notice or an overriding interest or, in the case of a disposition of a leasehold estate, if the burden of the interest is incident to the estate.

The registration requirements are set out in paragraph 7 of Schedule 2, LRA 2002. A notice must be entered in the register for the servient land and, if the dominant land is also registered, the benefit must be entered in the register for the dominant land.

NB: You must apply to register an easement in form AP1 to meet the registration requirements, and this is the case even if only the servient land is registered (r.90, LRR 2003). So if you make an application for entry of an agreed or unilateral notice using form AN1 or UN1, and we complete the application, this will not meet the registration requirements. In the case of an agreed notice, the following note will be added to the entry:

“NOTE: The grant or reservation of the rights… has not been completed by registration in accordance with section 27 of the Land Registration Act 2002 and so does not operate at law.”

If you subsequently apply to register the easement using form AP1, we will enter an additional notice with the priority of the later application. As the unilateral or agreed notice confers a degree of protection and questions of priority may arise, the existing entry will not be cancelled without a specific application to do so in form UN2, UN4 or CN1 as appropriate.

The following illustrates how s.29, LRA 2002 might operate.

If a registered proprietor granted a charge that was a registrable disposition and a few days later granted an easement that was also a registrable disposition, but at the time of registration of the easement the charge was not protected (and it did not have the benefit of a priority period under a search), then the easement would have priority over the charge.

In contrast, if the registration requirements for the easement were not met (for example, there was only an agreed notice entered in the register for the servient land), then the easement would not have priority over the charge (s.28, LRA 2002, would apply, meaning that the first in time has priority).

3.2 Easements as overriding interests

• An easement (legal or equitable) expressly granted on or after 13 October 2003 over registered servient land cannot be an overriding interest.

• An easement (legal or equitable) that had overriding status before 13 October 2003 will retain its overriding status indefinitely.

• An easement (other than an easement that had overriding status before 13 October 2003) will only operate as an overriding interest on or after 13 October 2006 if it is a legal easement and either obvious on a reasonably careful inspection of the land, known to the person to whom the disposition is made, or has been exercised within the year before the disposition.

The LRA 2002 introduced a duty to disclose certain overriding interests, including easements, of which the applicant is aware. Further information about overriding interests and their disclosure can be found in Practice Guide 15 – Overriding interests and their disclosure.

4 Easements in transfers and deeds of grant

This section is principally concerned with two types of case. One is where the owner of land (that might be registered or unregistered) transfers part of the land and the transfer includes an easement affecting or benefiting the retained land. The other is where there is an independent deed of grant.

4.1 Dominant and servient land registered

The grant or reservation of the easement is a registrable disposition. You must apply to register the easement using form AP1. The title numbers of all the registered titles involved (servient and dominant) must be entered in panel 2. The application should include:

• the original deed

• a certified copy of the deed (if you wish the original deed to be returned to you)

• stamp duty land tax form, if appropriate

• the appropriate fee as set out in the Fee Order

• any consents or certificates required in respect of charges or restrictions on the servient registered title; see section 8 Proving grantor’s power to make the grant.

We will only enter the benefit in the register for the dominant land and enter a notice in the register for the servient land if the title numbers are entered in panel 2 of form AP1. This will meet the registration requirements.

NB: Where the easement is contained in a transfer of part of a registered title you need only apply to register the transfer; no specific application in respect of the easements is required. Land Registry will make the necessary entries automatically, r.72(4) and (5), LRR 2003.

4.2 Dominant land is unregistered and servient land is registered

The grant or reservation is a registrable disposition. You must apply to register the easement using form AP1. The title numbers of the registered servient titles must be entered in panel 2 in order that the relevant entries are made on all the servient titles. The application should include:

• the original deed

• a certified copy of the deed (if you wish the original deed to be returned to you)

• stamp duty land tax form, if appropriate

• the appropriate fee as set out in the Fee Order

• any consents or certificates required in respect of charges or restrictions in the servient registered title; see section 8 Proving grantor’s power to make the grant.

We will enter a notice in the register for the servient title. This will meet the registration requirements.

4.3 Dominant land is registered and servient land is unregistered

The grant or reservation is not a registrable disposition, so it is effective at law when made.

An application can be made under r.73A(1)(a), LRR 2003 for the easement to be registered as appurtenant to the registered estate in the dominant land. The application must be made in form AP1. Enter the title numbers of the dominant registered titles in panel 2.

The application should include:

• the original deed

• a certified copy of the deed (if you wish the original deed to be returned to you)

• stamp duty land tax form, if appropriate

• the appropriate fee as set out in the Fee Order

• title to the servient land showing the grantor’s power to make the grant; see section 8 Proving grantor’s power to make the grant.

5 Easements in leases

This section is principally concerned with cases similar to the first one mentioned in section 4 Easements in transfers and deeds of grant, the difference being that, instead of transferring part of their land, the owner grants a lease of part of it and the lease includes an easement affecting or benefiting other land belonging to them.

5.1 Easements in registered leases

By ‘registered leases’ we mean:

1. leases of registered land the granting of which is a registrable disposition and has been completed by registration (s.27, LRA 2002)

2. leases of unregistered land the granting or assigning of which has triggered compulsory first registration and title to which has been registered (s.4, LRA 2002)

3. leases of registered land the granting of which was not a registrable disposition but the assignment of which has triggered compulsory first registration and title to which has been registered (s.4, LRA 2002)

4. leases of unregistered land that have been the subject of a voluntary first registration (s.3, LRA 2002).

An application for registration of a registrable disposition (1 above), must be made in form AP1 and include:

• the original lease, that if granted on or after 19 June 2006 must be a prescribed clauses lease unless it is one of the exceptions in r.58A(4)(c) or (d), LRR 2003

• a certified copy of the lease (if you wish the original deed to be returned to you)

• a stamp duty land tax form, if appropriate

• the appropriate fee as set out in the Fee Order

• consents or certificates required in respect of charges or restrictions in the grantor’s registered title.

An application for first registration of title to a lease (2, 3 and 4 above) must be made in form FR1 and include:

• the original lease

• a certified copy of the lease (if you wish the original deed to be returned to you)

• a stamp duty land tax form, if appropriate

• the appropriate fee as set out in the Fee Order

• title to the servient land showing the grantor’s power to make the grant.

5.1.1 Easements granted

From 19 June 2006 the leasehold register heading will be amended from:

“This register describes the land and estate comprised in the title. Except as mentioned below, the title includes any legal easements granted by the registered lease but is subject to any rights that it reserves, so far as those easements and rights exist and benefit or affect the registered estate.”

to:

“This register describes the land and estate comprised in the title.”

On removal of heading all existing leasehold registers will be automatically updated with the following register entry:

“Unless otherwise mentioned the title includes any legal easements granted by the registered lease(s) but is subject to any rights that it reserves, so far as those easements and rights exist and benefit or affect the registered land.”

Where leases are lodged for registration after 16 June 2006 we will make a register entry for easements granted and rights reserved by the lease. As with freehold registers the entry will include any notes qualifying or excluding easements where this is necessary.

At the time of registration of a prescribed clauses lease Land Registry will only consider any easements granted that are referred to in clause LR11.1 and make an appropriate entry.

If LR11.1 has not been completed correctly no entry will be made in the leasehold register in respect of the benefit of any easements granted by the lease. If an entry is omitted in this situation you may make an application using form AP1 either at the time the lease is registered or subsequently for the easements granted in the lease to be registered.

See Practice Guide 64 – Prescribed clauses leases for further details of how to complete the prescribed clauses.

If the lease is not a prescribed clauses lease Land Registry will consider the easements granted in the lease and make the appropriate entry in the register.

5.1.1.1 Servient land is registered

Where the easement is granted over land in the landlord’s title out of which the lease is granted, notice of the easements is entered in the register by virtue of the standard entry made in the landlord’s title on registration of the lease:

“The parts of the land affected thereby are subject to the leases set out in the schedule of leases hereto. The leases grant and reserve easements as therein mentioned.”

If the easement is granted over land within other registered titles, the title numbers must be stated in:

• clause LR2.2 in the case of a prescribed clauses lease, or

• panel 2 of form AP1 in the case of other leases.

The entry we will then make in the register for the servient land applies to both prescribed clauses leases and non-prescribed clauses leases and will be along these lines:

“(DATE) The land is subject for a term of… to the easements granted in a lease of… dated… made between…”

NB: Unless an application is made against each registered title comprising the servient land the application will not meet the registration requirements of s.27, LRA 2002. Land Registry will not therefore be able to include the benefit of the easement in the leasehold registered title.

5.1.1.2 Servient land is unregistered

The easement, being legal, will bind any subsequent purchaser. It will be an overriding interest on first registration (paragraph 3 of Schedule 1, LRA 2002).

5.1.2 Easements reserved

The entries referred to in section 5.1.1 Easements granted, that will appear in leasehold registers where the lease contains easements, also refer to easements reserved. Thus there is a notice entered in the register of the servient leasehold title in respect of any easements reserved in the registered lease. If the lease contains no beneficial easements (or we are not entering them in the register because clause LR11.1 has been completed incorrectly) an entry will be made in the charges register in respect of the rights reserved by the lease.

Where the lease is a prescribed clauses lease any easements reserved (or granted for the benefit of land owned by a third party) in the lease should be referred to in clause LR11.2. See Practice Guide 64 – Prescribed clauses leases for further details of how to complete the prescribed clauses.

Land Registry need only consider easements reserved (or granted for the benefit of land owned by a third party) if they are referred to in clause LR11.2. If this clause is not completed correctly Land Registry is not obliged to make an entry as to the benefit in the register of the benefiting title(s). If an entry is omitted in this situation you may make an application using form AP1 either at the time the lease is registered or subsequently for the easements reserved (or granted) in the lease to be registered.

5.1.2.1 Dominant land is registered

If the easements are reserved for the benefit of other land in the registered title out of which the lease was granted, the easement is included in the landlord’s registered title by way of the entry in the register for that registered title referred to in section 5.1.1.1 Servient land is registered.

If the easement is reserved for the benefit of land in other registered titles we will enter the benefit of the easement in the register of those titles providing:

• in the case of a prescribed clauses lease you enter the title number of the benefiting titles in clause LR2.2, or

• where the lease is not a prescribed clauses lease you apply on form AP1 stating the benefiting title numbers in panel 2.

If no entry is made when the lease is registered application for entry of the benefit of the easement can be made at a later date on form AP1 stating the benefiting title numbers in panel 2.

5.1.2.2 Dominant land is unregistered

We will take no action. On first registration of the dominant land, the estate will vest in the proprietor together with the easement (s.11(3) or s.12(3), LRA 2002).

5.2 Easements in unregistered leases

By ‘unregistered leases’ we mean leases:

• the grant of which is not a registrable disposition

• the grant or assignment of which does not trigger compulsory first registration

• that are not the subject of voluntary first registration.

5.2.1 Easements granted

5.2.1.1 Servient land is registered

You must apply to register the grant of the easement using form AP1, enclosing:

• the original lease

• a certified copy of the lease (if you wish the original deed to be returned to you)

• a stamp duty land tax form, if appropriate

• any necessary consents

• the appropriate fee as set out in the Fee Order.

When completing form AP1 quote the title numbers of the servient titles in panel 2 and enter ‘registration of the easements in the lease’ in panel 4.

As the grant of such easements is a registrable disposition the applicant is under a duty imposed by s.71, LRA 2002 and r.57, LRR 2003 to disclose certain overriding interests that affect the estate to which the application relates. Where the lease is one that can be noted, such as a lease granted for more than three years, this might include the lease containing the grant of the easement. In this situation you should also lodge a form DI completed with details of the lease. Land Registry will normally note the lease.

5.2.1.2 Servient land is unregistered

Both the dominant and servient land being unregistered, we cannot do anything. The easement, being legal, will bind any purchaser of the servient land and will be an overriding interest on first registration of the servient land (paragraph 3 of Schedule 1, LRA 2002).

5.2.2 Easements reserved

5.2.2.1 Dominant land is registered

The reservation is not a registrable disposition, so there is a legal easement when the lease is granted.

You can apply for the benefit of the easement to be entered in the register using form AP1 (r.73A(1)(a), LRR 2003). You should enclose:

• the counterpart lease

• a certified copy of the counterpart lease

• the appropriate fee as set out in the Fee Order.

When completing form AP1 quote the title numbers of the dominant titles in panel 2 and enter “registration of the benefit of easements reserved in [describe where provision is to be found e.g. Part 2 of Schedule 2 to] the lease” in panel 4.

5.2.2.2 Dominant land is unregistered

Both the dominant and servient land being unregistered, we cannot do anything. The easement, being legal, will bind any purchaser of the servient land and will be an overriding interest on first registration of the servient land (paragraph 3 of Schedule 1, LRA 2002).

5.3 Easements in leases other than by deed

It is generally assumed in this guide that the lease is in the form of a deed. If the lease is merely in writing, then the easement can only be equitable. This means:

• where the servient land is registered, the grant or reservation is not a registrable disposition

• where an easement is granted and the lease is registered, we cannot enter the benefit in the register for the leasehold estate as provision is only made for appurtenant legal easements to be registered

• where an easement is reserved and the dominant land is registered, we cannot enter the benefit in the register for the dominant land as provision is only made for appurtenant legal easements to be registered

• where an easement is granted or reserved and the servient land is unregistered, that easement will need to be protected by way of a Class D(iii) land charge.

6 Easements on first registration of the dominant or servient land

This section is concerned with what happens with respect to the easements when the owner of the retained land or the transferee in section 4 Easements in transfers and deeds of grant, whose title is unregistered, subsequently applies for first registration (or a successor in title applies for first registration) of that title.

6.1 Beneficial easements

On first registration the land is vested in the registered proprietor together with the benefit of all interests subsisting for the benefit of the registered estate (s.11(3) or s.12(3), LRA 2002). This is the case whether or not the easement is shown in the register.

However, wherever possible we will enter full details in the register of appurtenant easements that are:

• expressly granted in the conveyance to the applicant, or

• expressly granted or referred to in the root deed, or expressly granted in a subsequent deed, and that appear to have passed to the applicant.

Before we can enter the benefit of an easement in the register we must be sure that it subsists as a legal interest. You must, therefore, lodge evidence that the grantor had power to grant the easement; see section 8 Proving grantor’s power to make the grant. If the evidence produced is not conclusive that a legal interest exists we may either omit the right or enter a qualification note to the entry.

If the easement is in specific terms and was granted over unregistered land that has since been registered, it may be necessary for a notice in respect of the easement to be entered in the register for the servient land at the same time as the benefit is entered in the register for the dominant land. However, you do not need to apply for this notice to be entered; we see to this as part of the first registration. We will usually serve notice on the registered proprietors of the servient land to inform them that the entry is being made in their registered title.

6.2 Subjective easements

We will automatically enter notice in the register of all easements, whether legal or equitable:

• contained in the deeds and documents lodged with the application

• revealed on form DI.

7 Implied and prescriptive easements

Easements over registered land that have arisen by implied grant or prescription do not have to be completed by registration to take effect at law. In almost all cases, the easement will be an overriding interest (paragraph 3 of Schedule 3, LRA 2002).

An implied or prescriptive easement can be registered as appurtenant to the registered estate in the dominant land (r.73A, LRR 2003).

An application under r.73A in respect of an implied easement must be made in form AP1. Panel 5 of the form should:

• make clear that the application is to register an implied easement under r.73A, LRR 2003

• identify the deed it is claimed the easement is implied into.

The application should be accompanied by evidence that an implied easement has arisen, such as a court order, statutory declaration or statement of truth, and any necessary evidence of the grantor’s power to make the grant – see section 8 Proving grantor’s power to make the grant. Land Registry will usually serve notice on the servient owner in these cases.

If land that is the subject of an application for first registration has the benefit of an implied easement, you should include the evidence mentioned above and explain the circumstances in a covering letter.

Where the easement has arisen by prescription, see Practice Guide 52 – Easements claimed by prescription.

8 Proving grantor’s power to make the grant

8.1 Servient land is registered

8.1.1 Charges

You should lodge the consent of any chargee of the servient land whose charge has priority over the grant of the easement and who has not joined in the deed.

If the chargee has not consented to the grant, the easement is liable to be overridden if the chargee exercises their power of sale. However, if a chargee’s consent cannot be produced (and unless there is a restriction in favour of the chargee; see section 8.1.2 Restrictions), and provided the dominant land is registered, we may proceed with registration but will add a note along the following lines to the register for the dominant land:

“NOTE: The consent of the proprietor of the charge dated… in favour of… affecting title(s)… was not produced on registration and the rights… may be overridden in the event of the exercise of the power of sale.”

The note can be cancelled without fee if an application is made using form AP1 enclosing the consent.

8.1.2 Restrictions

Any restriction (including a restriction in favour of a chargee) in the register for the servient land must be complied with. If the grant of the easement was not a disposition of registered land because the servient land was unregistered at the time of the grant, then a restriction against the registration of a disposition, or against the registration or noting of a disposition, will not of itself prevent our subsequently entering the benefit in the register for the dominant land and a notice in the register for the servient land, or subsequently entering an agreed or unilateral notice. However, such a restriction may indicate a limitation on the grantor’s power to grant the easement operating at the time of the grant, particularly where the grantor and the registered proprietor are the same person. It may still be possible for us to proceed, perhaps following the service of notice, where the restriction suggests this limitation but we are satisfied that the grantor had the power to grant the easement.

8.1.3 Cautions and notices of (intended) deposit

If there is a caution or notice of (intended) deposit in the register for the servient land and the cautioner’s consent to the registration of the easement does not accompany the application, we may serve notice on the cautioner or depositee.

8.2 Servient land is unregistered

Full title to the servient land starting with a good root more than 15 years old at the date of the application and including Land Charges search results must accompany the application.

8.2.1 Charges

The consent of any legal mortgagee of the servient land to the grant of the easement should be lodged unless they have joined in the grant. If this consent is not lodged, we may proceed with entering the benefit of the easement in the register for the dominant land, but will add a note along the lines set out in section 8.1.1 Charges. Again, the note can be cancelled without fee if an application is made using form AP1 enclosing the consent.

9 Equitable easements

If an easement is granted other than for a period equivalent to a fee simple absolute in possession or a term of years absolute (for example, it is granted for life), it will be equitable. Another instance of an equitable easement is an easement granted over registered land where the grant, that is a registrable disposition, is not completed by registration.

9.1 Benefit of equitable easements

If an easement is clearly equitable, Land Registry will not enter the benefit of it in the register for the dominant land either on first registration of the dominant land or subsequently. This is because the LRA 2002 makes provision only for the registration of legal interests (s.2, LRA 2002). Hence only the benefit of appurtenant legal estates can be entered in the register on first registration (r.33(1), LRR 2003); and only the benefit of legal easements can be entered where the dominant land is already registered (paragraph 7 of Schedule 2, LRA 2002 and r.73A, LRR 2003). However, on first registration of an estate, that estate vests in the registered proprietor “together with all interests subsisting for the benefit of the estate”, which could include equitable easements (s.11(3), LRA 2002).

Where on first registration of the dominant land there is doubt if an easement is legal as opposed to equitable, the registrar may enter details of the right claimed with an appropriate qualification (r.33(2), LRR 2003). Similarly, where there is an application for entry in the register of registered dominant land of the benefit of an easement that has been expressly granted or reserved over unregistered land or has been acquired other than by express grant, and there is doubt as to whether the easement is legal, the registrar may enter details of the right claimed with an appropriate qualification (r.73A(5), LRR 2003).

NB: As the legislation allows for the benefit of only legal easements to be included in a registered title, the benefit of any equitable easements that happened to be referred to in the register for the dominant land (perhaps as a result of being mixed with legal easements) would not be included in the registered title.

9.2 Burden of equitable easements

If the servient land is registered, an application should be made to enter an agreed or unilateral notice in respect of the equitable easement. For further details of how to apply to enter a notice see Practice Guide 19 – Notices, restrictions and the protection of third party interests in the register.

Where an equitable easement is granted in a transfer of registered land we will automatically enter notice of the easement in the register for the servient land providing the title number is entered in panel 2 of the form AP1. A separate application using form AN1 or UN1 is not required. As stated in section 9.1 Benefit of equitable easements we will not enter the benefit of an equitable easement in the register.

On first registration of the servient land, we will enter a notice in the register in respect of equitable easements; see section 6.2 Subjective easements. Again, we will not enter the benefit of an equitable easement on first registration of the dominant land.

10 Sub-leases and assignments of part

If a tenant who has the benefit of an easement granted in the lease sub-lets part of the land with the benefit of the easement, it seems that there remains one easement. The sub-tenant can apply to enter notice of the easement in the register of the title superior to that of the tenant, unless there is already a notice (other than a unilateral notice) in respect of the easement. If a unilateral notice is entered and the beneficiary is stated to be the sub-tenant, then it only protects the sub-tenant’s entitlement to exercise the easement, and can be removed on application by the sub-tenant in form UN2. If an agreed notice is entered, then it is unlikely to be cancelled on the application of the sub-tenant alone as the registrar must be satisfied the interest concerned has completely determined (r.87(1), LRR 2003).

The position would appear to be similar where the tenant assigns part of the land with the benefit of an easement granted in an unregistered lease.

11 Removal of register entries when easement is overridden

11.1 Dominant and servient land registered

On receipt of an application to register a transfer in exercise of power of sale by a chargee of the servient land where there is a notice in respect of an easement that has been entered after registration of the charge, we shall investigate whether the benefit of the easement has been entered in the register for the dominant land with the note referred to in section 8.1.1 Charges. If it has, we will normally wish to serve notice on the registered proprietor of the dominant land. This is to take account of the possibility that consent was actually given by the chargee but not lodged. An objection may prevent us from being able to cancel the entries in respect of the easement in the registers for the dominant and servient land.

11.2 Servient land is unregistered

Where the benefit of an easement has been entered in the register for the dominant land, the mortgagee of the servient land exercises their power of sale and the easement is overridden, an application may be made without fee on form AP1 to cancel the entry of the easement and the note referred to in section 8.1.1 Charges.

The note that we enter reflects the fact that the chargee’s consent was not produced on registration. The chargee may, however, have given consent, in which case the easement will not be overridden. Consequently, notice of the application will be served on the registered proprietor of the dominant land. An objection may prevent us from being able to cancel the entry in respect of the easement in the register for the dominant land.

12 Removal of register entries on extinguishment

12.1 The application

When an easement has been extinguished and is referred to in the register of title, an application should be made for the entry or entries to be removed.

• If there is a notice entered in the register for the servient land and the benefit has been entered in the register for the dominant land, you need to make an application in form AP1 for removal of both entries, giving both title numbers in panel 2 and lodging evidence that the easement has been extinguished.

• If the easement has been protected either by an agreed notice or a registrar’s notice (such as a notice entered in response to an application to register an easement in form AP1, or on first registration of the servient land), an application for cancellation can be made using form CN1, accompanied by evidence that the easement has been extinguished.

• If there is no notice (perhaps because the servient land is unregistered), but the benefit of the easement has been entered in the register for the dominant land, then an application should be made for removal of the entry in form AP1, accompanied by evidence that the easement has been extinguished.

• If the easement has been protected by a unilateral notice, the beneficiary may apply for its removal using form UN2. Alternatively, the registered proprietor, or someone entitled to be registered as the proprietor, can apply for its cancellation using form UN4.

Note that if a notice in the register for the servient land refers also to other rights that have not been extinguished, it would not be appropriate to remove the entry from the register. In this situation, instead of removal, we will make an entry along the following lines:

“By a deed dated… made between… the [description of the right] referred to above has been extinguished.

NOTE: Copy filed.”

12.2 The supporting evidence

Where the application is in form AP1 or CN1, the following points need to taken into account.

12.2.1 Deed of release

All interested parties must be parties to the deed or consent to the release. The title to the dominant land must be proved. This will include:

• the registered proprietor/owner of the dominant land

• any chargee/mortgagee of the dominant land

• any other party whose interest was noted in the register for the dominant land and who would be adversely affected by the release. For example, if there was a contract for sale noted in the register for the dominant land, the person having the benefit of the contract would have to be a party or consent.

If it is not clear that the easement has been properly extinguished because, for example a chargee was not a party to the deed and its consent has not been lodged, we may make an entry along the following lines:

“By a deed dated… made between… the [description of right and deed contained in] was expressed to be released but the validity of the release has not been determined.

NOTE: Copy filed.”

If the dominant land is registered and a ‘no disposition’ type restriction is entered in the register, the requisite consent or other evidence of compliance must be supplied before we can complete the application.

You will need to lodge the deed of release and, if you want the original document returned, a certified copy.

12.2.2 Determination of lease to which the easement is appurtenant

Easements granted in leases normally come to an end with the lease.

Where a registered lease has terminated and an application is made in form AP1 to close the title, completion of the application will obviously mean removal of any entry in respect of an appurtenant easement. We will attempt also to cancel any notice in respect of this easement.

12.2.3 Abandonment

The person entitled to the easement must not only have stopped exercising it, but also to have “demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else” (Tehidy Minerals v Norman [1971] 2 QB 528, per Buckley LJ). The circumstances that are claimed to amount to abandonment must be set out in a statutory declaration or statement of truth.

Practice Guide 73 – Statements of truth gives information about the use of statements of truth in support of applications to Land Registry.

12.2.4 Unity of ownership and occupation

Note that there must be unification of both ownership and possession.

12.2.5 Statute

Where it is claimed that an easement has been extinguished by statute, we shall require a certified copy of the statute in question unless it is a Public General Act.

13 Objections

If we serve a notice, the recipient may object to the application. If an objection is received, we will not be able to complete the application and enter notice in the register for the servient land or enter the benefit of an easement in the register for the dominant land until the objection has been withdrawn or otherwise disposed of (s.73, LRA 2002).

14 Enquiries and suggestions

If you have a particular concern that is not covered by this guide, please contact Land Registry in advance of the transaction – see Contact details. If the transaction is particularly complex, it may be better if you make your enquiry in writing at the Land Registry office that will process your application. If you have any comments or suggestions about our guides, please send them to:

Central Operations Group
Land Registry
Trafalgar House
1 Bedford Park
Croydon CR0 2AQ

(DX 8888 Croydon 3)

You can obtain further copies of this and of all our guides free of charge from Customer Support (see Contact details) or you can download them from our website.