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

2.7 That historical distinction has become very nearly irrelevant because of the
advent of two systems of registration. As a general rule, the enforceability of legal
and equitable interests in land depends now upon their being protected, either by
a notice on the register of title at Land Registry (if the ownership of the land
burdened by the interest is registered), 7 or on the Land Charges Register (a
survivor from the days when title was not registered, which remains the route to
registration for interests in land where title has remained unregistered). 8
2.8 It is important to appreciate that when a right in land can be protected within the
title registration system, 9 or as a Land Charge, its enforceability depends not
upon its legal or equitable status but upon the rules of the registration system.
2.9 Where the legal/equitable distinction remains crucial, however, is in relation to the
guarantee of validity given by the register of title; only legal estates and interests
can have their validity guaranteed as a result of registration. 10 We discuss this at
paragraph 2.60 below. Accordingly the distinction does still have considerable
importance.
The modern structure of legal and equitable estates and interests
2.10 The land law of England and Wales underwent major reform in 1925. Section 1 of
the Law of Property Act 1925 11 sets out the modern grammar of estates and
interests as follows:
1 Legal estates and equitable interests
(1) The only estates in land which are capable of subsisting or of
being conveyed or created at law are—
(a) An estate in fee simple absolute in possession;
(b) A term of years absolute.
(2) The only interests or charges in or over land which are capable
of subsisting or of being conveyed or created at law are—
(a) An easement, right, or privilege in or over land for an
interest equivalent to an estate in fee simple absolute in
possession or a term of years absolute;
7 See Land Registration Act 2002, s 32 (referred to as “the LRA 2002” in the footnotes of this
Report); some legal easements are overriding interests (see schedules 1 and 3 to the LRA
2002) and so their priority is protected even though they do not appear on the register (see
para 2.61 below).
8
For further detail about the way in which these two forms of protection work, see paras
2.55 to 2.64 below.
9 Whether by notice on the register or as an overriding interest; see para 2.61 below.
10 LRA 2002, s 58(1).
11 We refer to this legislation as the “LPA 1925” in the footnotes of this Report.
11