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The Law Society - Conveyancing

05

Oct

2016

Overriding Interests – Recent Case Provides Reminder of Risks

Overriding interests are interests that are not registered at the Land Registry, but which still bind a party who acquires the land that is subject to the interest.   Examples of such interests include:

Leases affecting the Property,

  • Rights claimed by anyone in actual occupation of the property (e.g. by occupiers, squatters),
  • Rights of way across the property (other than public rights of way),
  • Rights of light and
  • Rights of support from adjoining properties,

to name just a few.

A recent case is a stark reminder of the principles relating to overriding interests protected by occupation. In particular, it demonstrates the importance of checking the boundaries of a property for any unusual features and to make sure that they accord with any title plans.

In Trevallion v Watmore & Anor [2016] EWLandRA 2015_0295 (30 June 2016), a fenced off parcel of land at the end of a garden belonging to house A had been leased out to the neighbouring property (house B). House A was eventually registered for the first time at the Land Registry and subsequently sold on.  House B was also eventually sold and the new owners continued to use and occupy the parcel of land even though it was not included in their freehold title.  The new owners of house B sought to apply to register a leasehold title to the parcel of land claiming that their lease overrode both the first registration of House A’s freehold title and also the subsequent transfer to the buyers. The owners of House A objected and the dispute was referred to the First-tier Tribunal.

The Tribunal found in favour of House B. The buyers of House A had visited the house on three occasions before buying it. The evidence indicated that they had not checked behind the fuchsia plant that concealed the fence that cut off the parcel of land. While the fence was not visible if you merely looked towards the fuchsia, the tribunal pointed out that under the Land Registration Act 2002 an interest protected by occupation may override a disposition if it would be apparent on a “reasonably careful inspection” and that this is more than a “quick look”. Anyone checking those boundaries could have seen the fence simply by moving the fuchsia’s branches. As such, house B’s occupation of the land could have been discovered by a reasonably careful inspection, meaning that the lease overrode the transfer to them. House B’s lease over the land was therefore binding on the buyers of House A.

At Parkes Wilshire Johnson Solicitors, we offer 41 years of conveyancing experience and practice. All of our conveyancers are qualified solicitors and before you commit to a purchase, you will receive from us a full report on title alerting you to the potential existence of overriding interest.

A property purchase is probably the biggest financial commitment you will make, therefore nothing should be left to chance. Contact our conveyancing team on 0208 441 1556 for an estimate of costs and we will be happy to guide you through the property buying process.

Posted in: PWJ News

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