a valid easement for those who lived in the cottages. This
was not to say that the defendants could not carry out
works on the land but they would have to do so in a way
that would substantially maintain its character as a com-
munal garden and after prior consultation.
Comment. Although the ruling does not exclude the
owner from the land as a matter of law, in practice, it
does restrict his use of the land significantly. The ex-
tent to which the presence of an easement restricts the
owner’s use of the land will depend on the circumstances
of the case but the creation of a driveway would seem to
be impossible on the facts of Mulvaney vGough.
The entries relevant to the property in the Land
Registry of the concerned properties will usually reveal
what easements exist between the landowners. Ease-
ments can be acquired by express grant/reservation,
implied grant/reservation, prescription (long use) or by
statute. If a parcel of land has already had its title regis-
tered (the vast majority of land in England and Wales
is already subject to the registration system created by
the Land Registration Act 1925) any expresslycreated
easement must be entered on the register for it to have
binding effect under the Land Registration Act 2002.
Nevertheless, if the easement was acquired through pre-
scription (by open use for a period of at least 20 years)
or it was implied into the conveyance that transferred
the land to the registered proprietor then this unregis-
tered interest may constitute an ‘overriding interest’ that
will bind an owner despite the absence of registration. In
relation to prescriptive claims, an unregistered interest
will be overriding when it would not have been obvious
on a reasonably careful inspection of the land.
This is a major change from the position adopted by
the Land Registration Act 1925 which provided, under
s 70(1), that all legal easements were overriding interests,
which therefore did not have to be registered. This change
was introduced to ensure that the register is a more
accurate mirror of the totality of rights and interests
over land in preparation for the forthcoming introduc-
tion of a system of electronic conveyancing. While not
all land in England and Wales is subject to the registra-
tion system at present, since 1990 title registration has
been compulsory for all land in the event of the sale.
The Land Registration Act 2002 increased the number
of situations (‘trigger events’) in which title registration
is compulsory with the aim of ensuring that all land in
England and Wales is subject to the registration system
in the near future.
It is important to note that an easementis a private
right (a public right of way is a different matter with
which we shall not deal), enjoyed by owners or occupiers
of landover neighbouringland. You cannot by owning
land in Essex have an easement over land in Yorkshire.
Finally, it is not uncommon in business for a pur-
chaser to take out indemnity insurance which will pay
compensation if vital easements, e.g. of access, are later
successfully challenged or easements are established that
might prove a nuisance to the business.Profits
Sometimes the right which exists over someone else’s
land is to take something from the land. It may, for
example, be a right to fish or cut wood.
These rights can be acquired over any land. Unlike
an easement, they are notrestricted to rights over neigh-
bouring land. You can, therefore, buy fishing rights
over a river in Surrey even though you live in Lancashire
and do not own any land at all in Surrey. The Land
Registration Act 2002 added profits to the list of inter-
ests that are capable of being overriding interests.Securities
A person may raise a loan on the security of his prop-
erty, whether real (say, his house) or personal (say, his
shareholding in a company), and the lender has certain
rights over the property so used as a security if the loan
is not repaid.
The use of mortgages on their own assets, such as the
family home, by sole traders, partners and directors of
companies together with the use of personal guarantees
of business debt and fixed and floating charges over the
assets of a company were considered in Chapter 4 as part
of the topic of raising finance.A licence
Legislation giving business tenants (but not licensees)
security of occupation has encouraged property owners
to attempt to create licences rather than leases. A licence
can be ended on reasonable notice; the rights of a busi-
ness tenant may under the Landlord and Tenant ActPart 4Business resources