Making Land Work: Easements, Covenants and ... - Law Commission

6.62 We recommend that land obligations, whether restrictive or positive,
should be incapable of creation by implication or prescription, and that
section 62 of the Law of Property Act 1925 should not operate so as to
create a land obligation or to convert one from a leasehold to a freehold
interest.
FURTHER PROVISIONS FOR REGISTERED TITLE
6.63 We now look at a number of further provisions that we have to recommend in
connection with the title registration system. Some of these are consequential
provisions that follow from what has been said above about the creation and
registration of easements. The rest derive from Part 4 of this Report, where we
made a number of recommendations about the creation and extinguishment of
easements and profits, the title to which is registered. Each of these is equally
relevant and desirable for land obligations; we look at them in turn.
Consequential provisions about registration
6.64 As we have explained, no statutory provision is needed to bring land obligations
within the ambit of the Land Registration Act 2002. That Act operates
by reference to the general law. As previously mentioned, land
obligations will involve the creation of rights in or over land and, as
such, will fall within section 1(2)(a) of the Law of Property Act 1925
(read in the light of clause 14 of the draft Bill). From this it follows that
the creation of a land obligation in relation to a registered estate
will be a registrable disposition for the purposes of the 2002 Act (by
virtue of section 27(2)(d) of that Act). They will not be able to take effect at law
until the burden is registered on the title to the burdened land (and, if the
benefited land is registered, the benefit is registered on the title to the benefited
land) because of the provisions of section 27 of the 2002 Act. The burden of land
obligations will appear in the charges register of the title to the burdened land,
and it will be possible to note there the burden of equitable land obligations. 49
6.65 So far, then, land obligations behave exactly like easements within the title
registration system.
6.66 However, we have to highlight two differences between land obligations and
easements. 50
Land obligations will not be overriding interests
6.67 The first is that we do not recommend that land obligations should be overriding
interests. That means that they will not bind a purchaser of land pursuant to a
registered disposition, under section 29 of the Land Registration Act 2002, unless
their priority is protected on the register.
49
Although, as we have said, equitable land obligations will be unusual. See para 6.52
above.
50
And appurtenant profits, although for brevity we do not mention profits in the discussion
that follows.
133