Claiming Appurtenant Rights and Burden Easements through the Land Registry

April 7, 2016

Appurtenant rights are rights which are attached to land and benefit it in some way, such as a right of way over a piece of neighbouring land. In contrast, burden easements restrict the use of a piece of land in some way.

Under Schedule 5 of the Land Registration Act (NI) 1970, appurtenant rights and easements which were created prior to First Registration of title at Land Registry affect the land without registration. Accordingly, even if an application for First Registration discloses rights benefiting or easements affecting the land, the Land Registry does not register such rights or burdens on the Land Certificate for that area of land.

However, Rule 147 of the Land Registration Rules (NI) 1994 allows the registration of a Note of Claimed Appurtenant Rights at First Registration, or at any other time. This does not actually constitute a substantive registration of the right, but allows a note of its existence to be made on the title register and Land Certificate. It should be noted however that, as the right itself is not registered, details of the right will not appear on the Land Registry map. Similarly, Rule 97 allows the registration of a Note of a Schedule 5 Burden at the request, or with the consent in writing, of the registered owner or his solicitor.

If a landowner wishes to apply for either type of Note to be made, the application must be in writing, stating the nature of the right or burden and providing evidence of its existence (usually by lodging the original deed with the application). The fee for such an application is £90 by paper or £70 via e-registration. On an application for First Registration, details of the right or burden should be set out in the Form 1 Application.

On receipt of an application for a Note of Claimed Appurtenant Rights, the Registrar will give notice to the registered owner of the land affected, who may lodge a letter of objection. If satisfied that the right claimed is appurtenant to the land, the Registrar will make a note on the folio showing the existence of the right. Alternatively, he can also refuse to make a note, make a qualified note or simply make a note that the registered owner claims such a right.

In relation to an application for a Note of a Schedule 5 Burden, no notice is required as the registered owner will have already provided his consent. As long as the Registrar is satisfied that the burden exists, a note will be made.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. For further information on appurtenant rights or easements, please contact a member of our Property Department.