Disputes often arise in relation to the existence of a Restriction on a Register of Title for a property.
These disputes are often embedded in a misconception as to the purpose, endurance and the resilience of such an entry on the Title.
This article touches on some of the common misconceptions that we encounter in the context of property litigation.
What is a Register of Title
It would, firstly, be helpful to understand what a restriction is.
In essence, a restriction presents itself as an express recording on the Register, usually found on the Proprietorship section of a Register of Title.
It is, in simple terms, a warning sign that there are certain dealings with a property that will be limited or restricted until such time as certain conditions are satisfied.
It is a marker that a third party has an interest in the property. Such dealings could be significant as a restriction on the ability of a registered proprietor to sell the property, transfer the property into someone else’s name, mortgaging / re-mortgaging the property or even granting particular rights over a property.
A restriction, in itself, does not necessarily prevent a sale or a disposition on a property in a practical sense, but it can delay or prevent formal registration.
It records a limitation on the right of a registered proprietor to deal with the land freely.
The presence of a restriction (and given the constraints and obstacles that it can create in practice) often triggers contention and disagreement as to its applicability.
Some of the common misconceptions giving rise to such disputes are:
- Misconception that the restriction is historical and is, therefore, unenforceable.
The age of the restriction MAY have a part to play in an assessment as to if it remains enforceable, but the fact that it is an old/historical restriction does not automatically mean that it is unenforceable.
The age of the restriction may make it more difficult to understand its applicability (i.e. the situation it is protecting may not be easily evidenced anymore, the underlying deed may be missing, the person named in the restriction may have died etc) but that in itself does not invalidate the situation that it is there to protect.
The automatic position is that it is operative unless:
- Its wording clearly shows that it has expired;
- The required consent or certificate is produced to show compliance / no longer relevant;
- The person with the benefit withdraws it;
- A court or tribunal order justifies its removal.
- Misconception that a restriction expires automatically
A restriction on a registered title does not normally expire automatically merely because time has passed. It remains on the Land Registry register until it is complied with, withdrawn, cancelled, modified, disapplied or removed.
Yes, some restrictions are drafted to last only until a specified date or contingent on a particular event occurring. This makes it easy to demonstrate that the restriction has been complied with and so the removal of the same is relatively straightforward.
However, it is not automatically removed from the register. It must be evidenced and an application made to release the title from the restriction.
Whether a restriction expires ‘automatically’ depends on the exact wording of the restriction and the type of restriction.
- Misconception that planning permission will obviate the presence of a restriction
Planning permission is a public law consent from the local planning authority. A restriction is a private protection administered through HM Land Registry. They operate in very different systems.
The grant of planning permission does not remove or override the existence of a restriction and the restriction must be dealt with in accordance with its wording.
- That the Title Plan of a property shows the boundary and if the scope of the restriction falls outside of said parameters, then it is obsolete
The title plans show general boundaries, not exact boundary lines. They identify the general extent of the registered land, but they are not conclusive as to the exact legal boundary.
Therefore, a restriction or covenant should not be assumed invalid / obsolete merely because, on a visual comparison, the relevant land or feature appears to sit outside the red edging on the title plan.
The historic deed plan, conveyance, transfer, filed plan, and wording of the register entry must be checked for measurement and context before it can be determined if it is binding.
The applicability of a restriction needs to be considered on a case-by-case basis. The wording and factual background in each scenario needs to be taken into account and before it can be decided if it has been complied with and can be withdrawn, cancelled, modified, disapplied for a particular transaction, or removed under its own wording.