Holaw (470) Ltd v Stockton Estates Ltd (2001) 81 P. & C.R. 29

REGISTERED LAND – LEASEHOLDS – OVERRIDING INTERESTS- LAND REGISTRATION ACT 1925 (LRA) – RECTIFICATION – RIGHTS OF WAY

Facts

Two neighbouring properties (A and P) were originally in the common ownership of CIS, with each property being let to a different tenant. The lease of P included a right of way over A. CIS later sold A without reserving a right of way for the benefit of P; it then sold P itself. The lease of P expired and was renewed. The question was whether the new lease could include the right of way over A.

Issues

Whether a right to rectify the register could take effect as an overriding interest within the meaning of s.70(1) LRA 1925; whether an easement could be impliedly reserved where not strictly necessary; whether, in principle, the use of a right of way could suffice to establish actual occupation under s.70(1)(g).

Decision/Outcome

In dismissing the application for rectification, Neuberger J held that H had no basis for a claim of rectification against S; the 1989 transfer had reserved no rights in favour of A and, in the absence of necessity, the fact that CIS’s tenant had been using the right of way was an insufficient basis upon which to justify an implied reservation of the right of way.

Moreover, the use of a right of way could not amount to actual occupation of A for the purpose of s.70(1)(g), even though a right to rectify could, in principle, take effect as an overriding interest under that provision.