Guidance

Practice guide 62: easements

Updated 25 September 2023

Applies to England and Wales

Please note that HM Land Registry’s practice guides are aimed primarily at solicitors and other conveyancers. They often deal with complex matters and use legal terms.

1. Overview

This guide deals with the registration of easements under the Land Registration Act 2002. It does not seek to be a general guide to the law concerning easements.

We have additional requirements if an easement has arisen by prescription. These are set out in practice guide 52: easements claimed by prescription and statutory rights of way for vehicles.

1.1 Retention of documents lodged with applications

Original documents are normally only required if your application is a first registration.

A conveyancer may, however, make an application for first registration on the basis of certified copy deeds and documents only. For information about this see practice guide 1 – first registrations – Applications lodged by conveyancers – acceptance of certified copy deeds.

If your application is not for first registration then we need only certified copies of the deeds or documents needed for HM Land Registry applications. Once we have made a scanned copy of the documents you send to us, they will be destroyed. This applies to both originals and certified copies.

However any original copies of death certificates or grants of probate will continue to be returned.

2. Easements and registration: general points

2.1 Easements as registrable dispositions

The express grant or reservation of an easement for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute over registered land is required to be completed by registration (section 27(2)(d) of the Land Registration Act 2002). In other words, it is a registrable disposition. It is no less a registrable disposition if it happens to be contained in a lease, even if the lease itself cannot be registered or noted. Because it is a registrable disposition, the grant or reservation will not operate at law until the registration requirements have been met (section 27(1) of the Land Registration Act 2002).

The registration requirements for a legal easement are set out in paragraph 7 of Schedule 2 to the Land Registration Act 2002. A notice must be entered in the register for the servient land and, if the dominant land is also registered, the benefit must be entered in the register for the dominant land.

You must apply to register an easement in form AP1 where both the benefiting land and the servient land are registered. When the benefitting land is unregistered you can apply to register the easement using either form AP1 or form AN1 to meet the registration requirements (rule 90 of the Land Registration Rules 2003).

Where both the benefiting land and the servient land are registered, if you make an application for entry of an agreed or unilateral notice using form AN1 or form UN1, and we complete the application, this will not meet the registration requirements. If you subsequently apply to register the easement using form AP1, we will enter an additional notice with the date of the later application. As the unilateral or agreed notice confers a degree of protection and questions of priority may arise, the existing entry will not be cancelled without a specific application to do so in form UN2, form UN4 or form CN1 as appropriate.

Where the registration requirements have been met and the easement is for valuable consideration, the effect of section 29(1) of the Land Registration Act 2002 is that the easement has priority over any interests created before its grant which at the time of registration of the easement are not protected. An interest will be protected only if it is a registered charge, the subject of a notice or an overriding interest or, in the case of a disposition of a leasehold estate, if the burden of the interest is incident to the estate.

For example, a registered proprietor grants a legal charge and a few days later grants an easement for valuable consideration. If at the time of registration of the grant of the easement the charge is not protected (and does not have the benefit of a priority period under a search), then the easement will have priority over the charge. In contrast, if the registration requirements for the easement are not met – for example, there is only an agreed notice entered in the register for the servient land – then the easement will not have priority over the earlier charge: section 28 of the Land Registration Act 2002 applies, meaning that the first in time has priority.

2.2 Establishing whether an easement has been completed by registration

If it is necessary to establish whether an easement has been completed by registration, we suggest that you proceed as follows.

First, look at the notice entered in respect of the burden of the easement. If the only entry that has been made is a unilateral notice then the grant or reservation has not been completed by registration.

If it is not a unilateral notice, then look at the register for the dominant land if it is registered. This will identify whether the easement is included in the registered title. If it has not been, then the grant or reservation has not been completed by registration.

If the notice is not a unilateral notice but the dominant land is unregistered (which will be the case where a lease has the benefit of an easement but it is a lease which cannot be registered), on and after 6 April 2018 the easement will have met the registration requirements set out in Schedule 2 to the Land Registration Act 2002 if a notice in respect of it has been entered in the register of the servient title. Prior to 6 April 2018 the easement would have met the registration requirements set out in Schedule 2 to the Land Registration Act 2002 only if the application was made in form AP1. You may apply for a copy of the form of application that gave rise to the entry. Application may be made in form OC2. If the application that gave rise to the entry was in form AN1, then the notice is an agreed notice and the grant or reservation has not been completed by registration.

2.3 Our former practice

For the period between 5 April 2005 and 1 September 2015, our practice on the entry of an agreed notice in respect of an easement the grant or reservation of which was a registrable disposition was to add a note in the following form to the entry:

“NOTE: The grant or reservation of the rights… has not been completed by registration in accordance with section 27 of the Land Registration Act 2002 and so does not operate at law.”

This note is no longer added. It is unnecessary as it is possible to establish whether the easement has been completed by registration without such a note – see Establishing whether an easement has been completed by registration. It could also be misleading, in that the absence of a note might wrongly be relied on as a guarantee in respect of the easement. Section 32(3) of the Land Registration Act 2002 makes clear that a notice can never operate in this way as it “does not necessarily mean that the interest is valid”.

2.4 Easements as overriding interests

A legal easement will operate as an overriding interest:

• on first registration: para 3 of Schedule 1 to the Land Registration Act 2002
• on registration of a registered disposition if either (i) it would have been obvious on a reasonably careful inspection of the land or was known about by the person to whom the disposition was made, or (ii) it has been exercised within the year before the disposition: para 3 of Schedule 3 to the Land Registration Act 2002. (However, an easement which was an overriding interest in relation to a registered estate on 12 October 2003 will continue to operate as an overriding interest; it does not have to meet either of these requirements: para 9 of Schedule 12 to the Land Registration Act 2002.)

The requirement for the easement to be a legal easement means that easements which have been expressly granted or reserved on or after 13 October 2003 over registered land cannot be overriding interests. Until the grant or reservation has been completed by registration, the easement is only equitable; once the grant or reservation has been completed by registration the easement is legal but then it fails to qualify as an overriding interest because it is no longer an unregistered interest.

The Land Registration Act 2002 introduced a duty to disclose certain overriding interests, including easements, of which the applicant is aware. Further information about overriding interests and their disclosure can be found in practice guide 15: overriding interests and their disclosure.

2.5 The form of the entry made on registration as proprietor of a legal easement

Section 2 of the Land Registration Act 2002 states that the Act makes provision for, among other things, the first registration of title to legal easements, and the grant or reservation out of registered land of easements which are capable of subsisting at law. Details of such easements are entered in the property register of the benefiting registered estate: rule 5(b)(ii) of the Land Registration Rules 2003.

The entry normally refers to the title including any legal easements granted by a particular deed. Formerly the entry might have referred to ‘the rights’ rather than ‘any legal easements’. However, this change in the usual form of entry is not intended to, and does not, alter what is included in the registration. Even where the entry refers to ‘the rights’, the registration will not include any which can only be equitable easements (perhaps because of their duration or the manner of their creation) or which otherwise are not proprietary rights capable of subsisting at law (such as a licence or right to a view). We refer to ‘any legal easements’ rather than ‘the legal easements’ because the latter might infer that all the rights granted by the transfer and affecting the retained or other land are legal easements; this may be the case but not necessarily so. See also Benefit of equitable easements.

2.6 Requirements for submitting plans

Usually, deeds will need to be accompanied by a plan showing the dominant and servient land. See practice guide 40, supplement 2: preparing plans for HM Land Registry applications.

All plans must be signed by the grantor in accordance with rule 213 of the Land Registration Rules 2003.

3. Legal easements in transfers and deeds of grant

This section is principally concerned with two types of case. One is where the owner of land (that might be registered or unregistered) transfers part of the land and the transfer includes an easement affecting or benefiting the retained land. The other is where there is an independent deed of grant.

Note: See Retention of documents lodged with applications, regarding retention of documents sent to us.

3.1 Dominant and servient land registered

The grant or reservation of the legal easement is a registrable disposition. To register the disposition you must apply using form AP1. The title numbers of all the registered titles involved (servient and dominant) must be entered in panel 2. The application should include:

• a certified copy of the deed
• a Stamp Duty Land Tax form or Land Transaction Tax certificate, if appropriate
• the appropriate fee as set out in the current Land Registration Fee Order, see HM Land Registry: Registration Services fees
• any consents or certificates required in respect of charges or restrictions on the servient registered title; see Proving grantor’s power to make the grant

We will enter the benefit in the register for the dominant land and enter a notice in the register for the servient land. This will meet the registration requirements.

Where the easement is contained in a transfer of part of a registered title you need only apply to register the transfer; no specific application in respect of the easements is required. We will make the necessary entries automatically: rule 72(4) and (5) of the Land Registration Rules 2003. However, it is still necessary to enter the title numbers in panel 2 of form AP1.

3.2 Dominant land is unregistered and servient land is registered

The grant or reservation is a registrable disposition. To register the grant or reservation you must apply using form AP1 or form AN1. The title numbers of the registered servient titles must be entered in panel 2 of either form. The application should include:

• a certified copy of the deed
• a Stamp Duty Land Tax or Land Transaction Tax certificate, if appropriate
• the appropriate fee as set out in the current Land Registration Fee Order, see HM Land Registry: Registration Services fees
• any consents or certificates required in respect of charges or restrictions in the servient registered title; see Proving grantor’s power to make the grant

We will enter a notice in the registers for the servient titles. This will meet the registration requirements.

3.3 Dominant land registered and servient land is unregistered

The grant or reservation is not a registrable disposition, so it is effective at law when made.

The easement, being legal, will bind any subsequent purchaser. It will be an overriding interest on first registration (paragraph 3 of Schedule 1 to the Land Registration Act 2002).

However an application can be made under rule 73A(1)(a) of the Land Registration Rules 2003 for the easement to be registered as appurtenant to the registered estate in the dominant land. The application must be made in form AP1. Enter the title numbers of the dominant registered titles in panel 2.

The application should include:

• a certified copy of the deed
• a Stamp Duty Land Tax or Land Transaction Tax certificate, if appropriate
• the appropriate fee as set out in the current Land Registration Fee Order, see HM Land Registry: Registration Services fees
• certified copies of title documents to the servient land showing the grantor’s power to make the grant; see Proving grantor’s power to make the grant

4. Easements in leases

This section is principally concerned with cases similar to the first type mentioned in Legal easements in transfers and deeds of grant, meaning, where the titles to both the servient land and the dominant land are or will be registered. The difference is that, instead of transferring part of their land, the owner grants a lease of part of it and the lease includes an easement affecting or benefiting other land belonging to them.

To find out what happens to documents submitted with application forms, see Retention of documents lodged with applications.

4.1 Easements in registered leases

By ‘registered leases’ we mean:

1. leases of registered land the granting of which is a registrable disposition and has been completed by registration (section 27 of the Land Registration Act 2002)

2. leases of unregistered land the granting or assigning of which has triggered compulsory first registration and title to which has been registered (section 4 of the Land Registration Act 2002)

3. leases of registered land the granting of which was not a registrable disposition but the assignment of which has triggered compulsory first registration and title to which has been registered (section 4 of the Land Registration Act 2002)

4. leases of unregistered land that have been the subject of a voluntary first registration (section 3 of the Land Registration Act 2002)

An application for registration of a registrable disposition (1 above), must be made in form AP1 and include:

• a certified copy of the original lease, that if granted on or after 19 June 2006 must be a prescribed clauses lease unless it is one of the exceptions in rule 58A(4)(c) or (d) of the Land Registration Rules 2003
• a Stamp Duty Land Tax or Land Transaction Tax certificate, if appropriate
• the appropriate fee as set out in the current Land Registration Fee Order, see HM Land Registry: Registration Services fees
• consents or certificates required in respect of charges or restrictions in the grantor’s registered title

An application for first registration of title to a lease (2, 3 and 4 above) must be made in form FR1 and include:

• a certified copy of the lease
• a Stamp Duty Land Tax or Land Transaction Tax certificate, if appropriate
• the appropriate fee as set out in the current Land Registration Fee Order, see HM Land Registry: Registration Services fees
• title to the servient land showing the grantor’s power to make the grant

4.1.1 Easements granted

At the time of registration of a prescribed clauses lease we will consider only any easements granted that are referred to in clause LR11.1 and make an appropriate entry.

If LR11.1 has not been completed correctly no entry will be made in the leasehold register in respect of the benefit of any easements granted by the lease. If an entry is omitted in this situation you may make an application using form AP1 either at the time the lease is registered or subsequently for the easements granted in the lease to be registered.

See practice guide 64: prescribed clauses leases for further details of how to complete the prescribed clauses.

If the lease is not a prescribed clauses lease we will consider the easements granted in the lease and make the appropriate entry in the register.

4.1.1.1 Servient land is registered

Where the easement is granted over land in the landlord’s title out of which the lease is granted, notice of the easements is entered in the register by virtue of the standard entry made in the landlord’s title on registration of the lease:

“The parts of the land affected thereby are subject to the leases set out in the schedule of leases hereto. The leases grant and reserve easements as therein mentioned.”

If the easement is granted over land within other registered titles, the title numbers must be stated in either:

• clause LR2.2 in the case of a prescribed clauses lease
• panel 2 of form AP1 in the case of other leases

The entry we will then make in the register for the servient land applies to both prescribed clauses leases and non-prescribed clauses leases and will be along these lines:

“The land is subject to the easements granted by a lease… dated… made between… for a term of….”

Note: Unless an application is made against each registered title comprising the servient land the application will not meet the registration requirements of section 27 of the Land Registration Act 2002. We will not therefore be able to include the benefit of the easement in the leasehold registered title.

4.1.1.2 Servient land is unregistered

The easement, being legal, will bind any subsequent purchaser. It will be an overriding interest on first registration (paragraph 3 of Schedule 1 to the Land Registration Act 2002).

4.1.2 Easements reserved

The entries referred to in Easements granted, that will appear in leasehold registers where the lease contains easements, also refer to easements reserved. Thus there is a notice entered in the register of the servient leasehold title in respect of any easements reserved in the registered lease. If the lease contains no beneficial easements (or we are not entering them in the register because clause LR11.1 has been completed incorrectly) an entry will be made in the charges register in respect of the rights reserved by the lease.

Where the lease is a prescribed clauses lease any easements reserved (or granted for the benefit of land owned by a third party) in the lease should be referred to in clause LR11.2. See practice guide 64: prescribed clauses leases for further details of how to complete the prescribed clauses.

We need consider only easements reserved (or granted for the benefit of land owned by a third party) if they are referred to in clause LR11.2. If this clause is not completed correctly we are is not obliged to make an entry as to the benefit in the register of the benefiting title(s). If an entry is omitted in this situation you may make an application using form AP1 either at the time the lease is registered or subsequently for the easements reserved (or granted) in the lease to be registered.

4.1.2.1 Dominant land is registered

If the easements are reserved for the benefit of other land in the registered title out of which the lease was granted, the easement is included in the landlord’s registered title by way of the entry in the register for that registered title referred to in Servient land is registered.

If the easement is reserved for the benefit of land in other registered titles we will enter the benefit of the easement in the register of those titles providing either:

• in the case of a prescribed clauses lease you enter the title number of the benefiting titles in clause LR2.2
• where the lease is not a prescribed clauses lease you apply on form AP1 stating the benefiting title numbers in panel 2

If no entry is made when the lease is registered, application for entry of the benefit of the easement can be made at a later date on form AP1 stating the benefiting title numbers in panel 2.

4.1.2.2 Dominant land is unregistered

We will take no action. On first registration of the dominant land, the estate will vest in the proprietor together with the easement (section 11(3) or section 12(3) of the Land Registration Act 2002).

4.2 Easements in unregistered leases

By ‘unregistered leases’ we mean leases:

• the grant of which is not a registrable disposition
• the grant or assignment of which does not trigger compulsory first registration
• that are not the subject of voluntary first registration

4.2.1 Easements granted

4.2.1.1 Servient land is registered

To register the grant of the easement, you must apply using form AP1 or form AN1, enclosing:

• a certified copy of the lease
• a Stamp Duty Land Tax or Land Transaction Tax certificate, if appropriate
• any necessary consents including for any restrictions where a consent is required
• the appropriate fee as set out in the current Land Registration Fee Order, see HM Land Registry: Registration Services fees

When completing form AP1 quote the title numbers of the servient titles in panel 2. Enter ‘registration of the easements in the lease’ in panel 4 of form AP1, or ‘registration of easements in the lease’ in panel 8 of form AN1.

As the grant of such easements is a registrable disposition the applicant is under a duty imposed by section 71 of the Land Registration Act 2002 and rule 57 of the Land Registration Rules 2003 to disclose certain overriding interests that affect the estate to which the application relates. Where the lease is one that can be noted, such as a lease granted for more than three years, this might include the lease containing the grant of the easement. In this situation you should also lodge a form DI completed with details of the lease. We will normally note the lease.

4.2.1.2 Servient land is unregistered

Both the dominant and servient land being unregistered, we cannot do anything. The easement, being legal, will bind any purchaser of the servient land and will be an overriding interest on first registration of the servient land (paragraph 3 of Schedule 1 to the Land Registration Act 2002).

4.2.2 Easements reserved

4.2.2.1 Dominant land is registered

The reservation is not a registrable disposition, but there is a legal easement when the lease is granted reserving easements in favour of other registered land.

You can apply for the benefit of the easement to be entered in the register using form AP1 (rule 73A(1)(a) of the Land Registration Rules 2003). You should enclose:

• a certified copy of the counterpart lease
• the appropriate fee as set out in the current Land Registration Fee Order, see HM Land Registry: Registration Services fees

When completing form AP1 quote the title numbers of the dominant titles in panel 2 and enter “registration of the benefit of easements reserved in [describe where provision is to be found for example, Part 2 of Schedule 2 to] the lease” in panel 4.

4.3 Easements in leases other than by deed

It is generally assumed in this guide that the lease is in the form of a deed. If the lease is merely in writing, then the easement can only be equitable. This means:

• where the servient land is registered, the grant or reservation is not a registrable disposition
• where an easement is granted and the lease is registered, we cannot enter the benefit in the register for the leasehold estate as provision is only made for appurtenant legal easements to be registered
• where an easement is reserved and the dominant land is registered, we cannot enter the benefit in the register for the dominant land as provision is only made for appurtenant legal easements to be registered
• where an easement is granted or reserved and the servient land is unregistered, that easement will need to be protected by way of a Class D(iii) land charge

5. Easements on first registration of a dominant or servient land

This section is concerned with what happens with respect to the easements when the owner of the retained land or the transferee in Legal easements in transfers and deeds of grant, whose title is unregistered, subsequently applies for first registration (or a successor in title applies for first registration) of that title.

Note: See Retention of documents lodged with applications, regarding retention of documents sent to us.

5.1 Beneficial easements

On completion of a first registration the land is vested in the registered proprietor together with the benefit of all interests subsisting for the benefit of the registered estate (section 11(3) or section 12(3) of the Land Registration Act 2002). This is the case whether or not an easement is shown in the register.

However, wherever possible we will enter full details in the register of appurtenant easements that are either:

• expressly granted in the conveyance to the applicant
• expressly granted or referred to in the root deed, or expressly granted in a subsequent deed, and that appear to have passed to the applicant

Before we can enter the benefit of an easement in the register, we must be sure that it subsists as a legal interest. You must, therefore, lodge evidence that the grantor had power to grant the easement; see Proving grantor’s power to make the grant. If the evidence produced is not conclusive that a legal interest exists, we may either omit the right or enter a qualification note to the entry.

If the easement is in specific terms and was granted over unregistered land that has since been registered, it may be necessary for a notice in respect of the easement to be entered in the register for the servient land at the same time as the benefit is entered in the register for the dominant land. However, you do not need to apply for this notice to be entered; we see to this as part of the first registration. We will usually serve notice on the registered proprietors of the servient land to inform them that the entry is being made in their registered title.

5.2 Subjective easements

We will automatically enter notice in the register of all easements, whether legal or equitable:

• contained in the deeds and documents lodged with the application
• revealed on form DI

6. Implied and prescriptive easements

Easements over registered land that have arisen by implied grant or reservation or prescription do not have to be completed by registration to take effect at law. In almost all cases, the easement will be an overriding interest (paragraph 3 of Schedule 3 to the Land Registration Act 2002).

An implied or prescriptive easement can be registered as appurtenant to the registered estate in the dominant land (rule 73A of the Land Registration Rules 2003).

An application under rule 73A in respect of an implied easement must be made in form AP1. Panel 5 of the form should:

• make clear that the application is to register an implied easement under rule 73A of the Land Registration Rules 2003
• identify the deed it is claimed the easement is implied into

The application should be accompanied by evidence that an implied easement has arisen, such as a court order, statutory declaration or statement of truth, and any necessary evidence of the grantor’s power to make the grant – see Proving grantor’s power to make the grant. We will usually serve notice on the servient owner in these cases.

If land that is the subject of an application for first registration has the benefit of an implied easement, you should include the evidence mentioned above and explain the circumstances in a covering letter.

Where an implied or prescriptive easement is registered as appurtenant to a registered estate and the servient land is registered, we will enter a notice in the register for the servient land at the same time.

Where the easement has arisen by prescription, see practice guide 52: easements claimed by prescription.

To find out what happens to documents submitted with application forms, see Retention of documents lodged with applications.

7. Proving grantor’s power to make the grant

To find out what happens to documents submitted with application forms, see Retention of documents lodged with applications.

7.1 Servient land is registered

7.1.1 Charges

You should lodge the consent of any chargee of the servient land whose charge has priority over the grant of the easement and who has not joined in the deed.

The easement is liable to be overridden if the chargee has not consented to the grant and the chargee exercises their power of sale. If a chargee’s consent cannot be produced, the dominant land is registered, and we proceed with registration, we will add a note along the following lines to the entry in the register for the dominant land:

“NOTE: The consent of the proprietor of the charge dated… in favour of… affecting title(s)… was not produced on registration and the rights… may be overridden in the event of the exercise of the power of sale.”

The note can be cancelled without fee if an application is made using form AP1 enclosing the consent.

7.1.2 Restrictions

Any restriction (including a restriction in favour of a chargee) in the register for the servient land must be complied with. If the grant of the easement was not a disposition of registered land because the servient land was unregistered at the time of the grant, then a restriction against the registration of a disposition, or against the registration or noting of a disposition, will not of itself prevent our subsequently entering the benefit in the register for the dominant land and a notice in the register for the servient land, or subsequently entering an agreed or unilateral notice. However, such a restriction may indicate a limitation on the grantor’s power to grant the easement operating at the time of the grant, particularly where the grantor and the registered proprietor are the same person. It may still be possible for us to proceed, perhaps following the service of notice, where the restriction suggests this limitation but we are satisfied that the grantor had the power to grant the easement.

7.1.3 Cautions and notices of (intended) deposit

If there is a caution or notice of (intended) deposit in the register for the servient land and the cautioner’s consent to the registration of the easement does not accompany the application, we may serve notice on the cautioner or depositee.

7.2 Servient land is unregistered

Full title to the servient land starting with a good root more than 15 years old at the date of the application and including Land Charges search results must accompany the application.

7.2.1 Charges

The consent of any legal mortgagee of the servient land to the grant of the easement should be lodged unless they have joined in the grant. If this consent is not lodged, we may proceed with entering the benefit of the easement in the register for the dominant land, but will add a note along the lines set out in Charges. Again, the note can be cancelled without fee if an application is made using form AP1 enclosing the consent.

8. Equitable easements

If an easement is granted other than for a period equivalent to a fee simple absolute in possession or a term of years absolute (for example, it is granted for life), it will be equitable. Another instance of an equitable easement is an easement granted over registered land where the grant, that is a registrable disposition, is not completed by registration.

To find out what happens to documents submitted with application forms, see Retention of documents lodged with applications.

8.1 Benefit of equitable easements

If an easement is clearly equitable, we will not enter the benefit of it in the register for the dominant land either on first registration of the dominant land or subsequently. This is because the Land Registration Act 2002 makes provision only for the registration of legal interests (section 2 of the Land Registration Act 2002). Hence only the benefit of appurtenant legal estates can be entered in the register on first registration (rule 33(1) of the Land Registration Rules 2003); and only the benefit of legal easements can be entered where the dominant land is already registered (paragraph 7 of Schedule 2 to the Land Registration Act 2002 and rule 73A of the Land Registration Rules 2003). However, on first registration of an estate, that estate vests in the registered proprietor “together with all interests subsisting for the benefit of the estate”, which could include equitable easements (section 11(3) of the Land Registration Act 2002).

Where on first registration of the dominant land there is doubt if an easement is legal as opposed to equitable, the registrar may enter details of the right claimed with an appropriate qualification (rule 33(2) of the Land Registration Rules 2003). Similarly, where there is an application for entry in the register of registered dominant land of the benefit of an easement that has been expressly granted or reserved over unregistered land or has been acquired other than by express grant, and there is doubt as to whether the easement is legal, the registrar may enter details of the right claimed with an appropriate qualification (rule 73A(5) of the Land Registration Rules 2003).

Note: As the legislation allows for the benefit of only legal easements to be included in a registered title, the benefit of any equitable easements that happened to be referred to in the register for the dominant land (perhaps as a result of being mixed with legal easements) would not be included in the registered title.

8.2 Burden of equitable easements

If the servient land is registered, an application should be made to enter an agreed or unilateral notice in respect of the equitable easement. For further details of how to apply to enter a notice see practice guide 19: notices, restrictions and the protection of third party interests.

Where an equitable easement is granted in a transfer of registered land we will automatically enter notice of the easement in the register for the servient land providing the title number is entered in panel 2 of the form AP1. A separate application using form AN1 or form UN1 is not required. As stated in Benefit of equitable easements we will not enter the benefit of an equitable easement in the register.

On first registration of the servient land, we will enter a notice in the register in respect of equitable easements; see Subjective easements. Again, we will not enter the benefit of an equitable easement on first registration of the dominant land.

9. Sub-leases and assignments of part

If a tenant who has the benefit of an easement granted in the lease sub-lets part of the land with the benefit of the easement, it seems that there remains one easement. The sub-tenant can apply to enter notice of the easement in the register of the title superior to that of the tenant, unless there is already a notice (other than a unilateral notice) in respect of the easement. If a unilateral notice is entered and the beneficiary is stated to be the sub-tenant, then it protects only the sub-tenant’s entitlement to exercise the easement, and can be removed on application by the sub-tenant in form UN2. If an agreed notice is entered, then it is unlikely to be cancelled on the application of the sub-tenant alone as the registrar must be satisfied the interest concerned has completely determined (rule 87(1) of the Land Registration Rules 2003).

The position would appear to be similar where the tenant assigns part of the land with the benefit of an easement granted in an unregistered lease.

Note: See Retention of documents lodged with applications, regarding retention of documents sent to us.

10. Provisions preventing the creation or passing of easements

On a transfer or lease, the transferee or tenant may, without an actual express grant, acquire easements affecting land retained by the transferor or landlord. This may be by virtue of section 62 of the Law of Property Act 1925 or the rule in Wheeldon v Burrows. And on a transfer or lease, the benefit of existing easements can automatically pass with the land. However, such creation and passing of easements can be prevented by a suitable provision in the transfer or lease.

The following sections suggest forms of wording to use to exclude the operation of section 62 or the rule in Wheeldon v Burrows, and to prevent the benefit of existing easements from passing. Use of this wording is not compulsory, but it will ensure that the practice set out below is followed.

10.1 Preventing the creation of easements

Where there is a clause in a transfer reading:

“No easements are implied for the benefit of the property and the operation of [section 62 of the Law of Property Act 1925] [and] {or} [the rule in Wheeldon v Burrows] is excluded”

or to similar effect, an entry will be made in the property register for the land transferred setting out the terms of the clause or stating that the transfer:

“contains a provision relating to the creation or passing of easements”

This entry will not be made in the register where the clause is in a lease.

10.2 Preventing the passing of the benefit of easements

It seems that the automatic passing of the benefit of existing easements, in the absence of words preventing this in the transfer or lease, does not depend on section 62 operating. Where there is a clause in a transfer reading:

“The property is transferred without the benefit of any existing easements”

or to similar effect, any entries in respect of existing easements in the transferor’s title will not be carried forward to the transferee’s title. An entry will be made in the property register in the transferee’s title stating the transfer:

“contains a provision relating to the creation or passing of easements”

Where there is a clause in a transfer reading:

“The property is transferred without the benefit of any existing easements other than those which are expressly referred to in in this transfer”

or to similar effect, only the entries in the transferor’s title expressly referred to in the transfer will be carried forward to the transferee’s title. An entry will be made in the property register in the transferee’s title stating the transfer:

“contains a provision relating to the creation or passing of easements”.

Where entries are not carried forward because of a clause preventing the passing of the benefit of easements, we will not automatically cancel any notice in respect of the burden of the easements in the title to the servient land. An application for cancellation of the notice can be made in form CN1.

If the clause in the transfer does not use either of the forms of wording set out above and:

• it is not clear whether the effect of the clause is to prevent the benefit of an existing easement passing, and
• it seems that the transferee’s title would derive some benefit from the easement

the relevant entry will be carried forward to the transferee’s title but the following note or something similar will be added:

“NOTE: The legal easements are included in this registration only in so far as they are not excluded by the effect of the transfer dated … referred to …”

Where there is a clause in a lease (in the case of a prescribed clauses lease, the clause should be included or referred to preferably in panel LR4 but can be instead in LR11) to the effect that the property is let or demised without the benefit of any existing easements, any entries in respect of the benefit of existing easements in the landlord’s title will not be carried forward to the tenant’s title. Where the clause is to the effect that the property is let or demised with the benefit of only those existing easements which are expressly referred to in the lease, only the entries in the landlord’s title expressly referred to in the lease will be carried forward to the tenant’s title. Where it is unclear whether the effect of the clause is to prevent the benefit of an existing easement passing, the relevant entry will not be carried forward.

10.3 Preventing both the creation and passing of easements

Often the intention will be to prevent both (i) the creation of new easements and (ii) the passing of the benefit of existing easements or at least those other than the existing easements referred to in the transfer. Where there is a clause in a transfer reading:

“No easements are implied for the benefit of the property and the operation of [section 62 of the Law of Property Act 1925] [and] {or} [the rule in Wheeldon v Burrows] is excluded. The property is transferred without the benefit of any existing easements [other than those which are expressly referred to in this transfer]”

or to similar effect, any entries in respect of existing easements in the transferor’s title will not be carried forward to the transferee’s title. An entry will be made in the property register for the land transferred setting out the terms of the clause or stating that the transfer:

“contains a provision relating to the creation or passing of easements”

This entry will not be made if the clause is in a lease (in panel LR4 or LR11 in the case of a prescribed clauses lease).

If the wording in square brackets (“other than those which are expressly referred to in this transfer”) is included, only the entries in the transferor’s title expressly referred to in the transfer will be carried forward to the transferee’s title. If there is a similar clause in a lease, only the entries in the landlord’s title expressly referred to in the lease will be carried forward to the tenant’s title.

The points made in the last two paragraphs of Preventing the passing of easements, about clauses in transfers and leases which are in another form and from which it is unclear whether the effect is to prevent the benefit of an existing easement passing, apply equally here.

11. Removal of register entries when easement is overridden

To find out what happens to documents submitted with application forms, see Retention of documents lodged with applications.

11.1 Dominant and servient land registered

On receipt of an application to register a transfer in exercise of power of sale by a chargee of the servient land where there is a notice in respect of an easement that has been entered after registration of the charge, we shall investigate whether the benefit of the easement has been entered in the register for the dominant land with the note referred to in Charges. If it has, we will normally wish to serve notice on the registered proprietor of the dominant land. This is to take account of the possibility that consent was actually given by the chargee but not lodged. An objection may prevent us from being able to cancel the entries in respect of the easement in the registers for the dominant and servient land.

11.2 Servient land is unregistered

Where the benefit of an easement has been entered in the register for the dominant land, the mortgagee of the servient land exercises their power of sale and the easement is overridden, an application may be made without fee on form AP1 to cancel the entry of the easement and the note referred to in Charges.

The note that we enter reflects the fact that the chargee’s consent was not produced on registration. The chargee may, however, have given consent, in which case the easement will not be overridden. Consequently, notice of the application will be served on the registered proprietor of the dominant land. An objection may prevent us from being able to cancel the entry in respect of the easement in the register for the dominant land.

12. Removal of register entries on extinguishment

See Retention of documents lodged with applications, regarding retention of documents sent to us.

12.1 The application

When an easement has been extinguished and is referred to in the register of title, an application should be made for the entry or entries to be removed.

• If there is a notice entered in the register for the servient land and the benefit has been entered in the register for the dominant land, you need to make an application in form AP1 for removal of both entries, giving both title numbers in panel 2 and lodging evidence that the easement has been extinguished.
• If the easement has been protected either by an agreed notice or a registrar’s notice (such as a notice entered in response to an application to register an easement in form AP1 or form AN1, or on first registration of the servient land), an application for cancellation can be made using form CN1, accompanied by evidence that the easement has been extinguished.
• If there is no notice (perhaps because the servient land is unregistered), but the benefit of the easement has been entered in the register for the dominant land, then an application should be made for removal of the entry in form AP1, accompanied by evidence that the easement has been extinguished.
• If the easement has been protected by a unilateral notice, the beneficiary may apply for its removal using form UN2. Alternatively, the registered proprietor, or someone entitled to be registered as the proprietor, can apply for its cancellation using form UN4.

Note that if a notice in the register for the servient land refers also to other rights that have not been extinguished, it would not be appropriate to remove the entry from the register. In this situation, instead of removal, we will make an entry along the following lines:

“By a deed dated… made between… the [description of the right] referred to above has been extinguished. NOTE: Copy filed.”

12.2 The supporting evidence

Where the application is in form AP1 or form CN1, the following points need to taken into account.

12.2.1 Deed of release

All interested parties must be parties to the deed or consent to the release, including:

• the registered proprietor/owner of the dominant land
• any chargee/mortgagee of the dominant land
• any other party whose interest was noted in the register for the dominant land and who would be adversely affected by the release. For example, if there was a contract for sale noted in the register for the dominant land, the person having the benefit of the contract would have to be a party or consent

Where the dominant land comprises both leasehold and freehold titles - for example, if an easement is granted for the benefit of a freehold title and a lease is subsequently granted out of that title with the benefit of the easement – interested parties will include those interested in both the freehold and leasehold titles.

If the dominant land is unregistered, the applicant should lodge evidence of title to the land in the same way as if the land was being conveyed.

If it is not clear that the easement has been properly extinguished because, for example a dominant title chargee was not a party to the deed and its consent has not been lodged, we may make an entry along the following lines:

“By a deed dated… made between… the [description of right and deed contained in] was expressed to be released but the validity of the release has not been determined. NOTE: Copy filed.”

You will need to lodge a certified copy of the deed of release.

12.2.2 Determination of lease to which the easement is appurtenant

Easements granted in leases normally come to an end with the lease.

Where a registered lease has terminated and an application is made in form AP1 to close the title, completion of the application will obviously mean removal of any entry in respect of the benefit of an appurtenant easement.

12.2.3 Abandonment

The person entitled to the easement must not only have stopped exercising it, but also to have “demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else” (Tehidy Minerals v Norman [1971] 2 QB 528, per Buckley LJ). The circumstances that are claimed to amount to abandonment must be set out in a statutory declaration or statement of truth.

Practice guide 73: statements of truth gives information about the use of statements of truth in support of applications to us.

12.2.4 Unity of ownership and occupation

Note that there must be unification of both ownership and possession.

12.2.5 Statute

Where it is claimed that an easement has been extinguished by statute, we shall require a certified copy of the statute in question unless it is a Public General Act.

13. Objections

If we serve a notice, the recipient may object to the application. If an objection is received, we will not be able to complete the application and enter notice in the register for the servient land or enter the benefit of an easement in the register for the dominant land until the objection has been withdrawn or otherwise disposed of (section 73 of the Land Registration Act 2002).

14. Things to remember

We provide only factual information and impartial advice about our procedures. Read more about the advice we give.