What Are Disclosable Overriding Interests In A Residential Property Conveyance?
Posted on 26th May 2020
What is an overriding interest?
As it says on the tin, an overriding interest is an interest that overrides the actual registration of the land. This, essentially, means that, even if such interests are not registered against the title to the land, they may still be enforced. Such interests can be legally binding on both the registered proprietor and anybody whom may acquire an interest in the land.
As you can imagine, this can lead to significant issues, particularly where the registered proprietor is unaware of any such interests even existing, not to mention being enforced. This brought about the need for the changes that were introduced in the Land Registration Act 2002.
The Act recognised the problems that may arise as a result of such interests being enforced on unknowing land owners, and implemented change. The Act now imposes an obligation, upon the purchaser, to disclose any such interests that may be in existence, as part of the registration process.
Schedules 2, dealing with registerable dispositions, and 3, relating to unregistered interests, are of importance in this regard, and provide specific guidance on how such interests are to be dealt with. You can view the specific sections of the Act, here.
The aim is to reduce the number of overriding interests in existence, by imposing duties for the same to be registered. Where the same are registered, they are noted on the Register of Title and would ensure that all parties with an interest in the land were aware of such entries. This not only ensures transparency and accuracy in the records HM Land Registry hold, but also works to avoid issues in which such interests may be enforced upon the land owner, whom has no actual knowledge of the same. Evidently, where the current proprietor is unaware of such interests, and those with the benefit enforce the same, this can lead to problems.
What is classed as an overriding interest?
So, we are aware of how they can cause problems, but what is classed as an overriding interest?
Overriding interests can cover a range of different items that may be affecting the land and can include the following:
- Rights of way across the land and/or property;
- Pipes, wires or cables crossing the and/or property;
- Rights of support from adjoining land and/or property;
- Leases or tenancies against the property;
- Manorial rights;
- Shooting and fishing rights.
The above accounts for a very small summary in respect of the potential interests that are to be disclosed. More on what would be classed as such interest can be found via the Land Registry’s practice guide, which specifically discusses overriding interests, and their importance. This can be viewed here.
How would I know about an overriding interest?
As you will see from the above, many items that can be classed as an overriding interest would not be noticeable or revealed upon inspection of the property. This is where the expertise of our property solicitors in Preston comes in, in determining whether there are any such interests in existence, and what they may mean for you.
Land registry guidance requires disclosure of such interests that are in actual knowledge of the individual making the application for registration. So, here are just some of the steps that can be taken by your conveyancing solicitor to bring such items to light.
An overriding interests questionnaire is, sometimes, provided by the property solicitor acting for the seller, as part of the Contract pack. See our Preston solicitors’ blog on the contract pack, and what this entails, here. This questionnaire provides a list of various overriding interests and requires the seller to confirm whether, so far as they are aware, any of the items listed thereon affect the land being sold. This allows the prospective purchaser the early opportunity of noting any such interests that may be relevant, and for any necessary investigation into the same to be carried out without delay.
Alternatively, this may be a query that is specifically raised by the purchaser’s solicitor, as part of the pre-contract enquiries. For more on pre-contract enquiries, and their importance, see our blog here. The purchaser’s solicitor may ask that a questionnaire is completed, by the seller, if not already done so. In addition, specific enquiries may be raised to determine whether a certain interest is present.
What if an overriding interest has been revealed?
Where such interests are revealed, the Land Registration Act imposes a legal duty on the purchaser to disclose the same to the Land Registry, upon registration. This is something that your conveyancing solicitor would attend to on your behalf, and would be noted on form DI, which can be viewed here.
Form DI is used to note the interest being disclosed and, under Rule 57(4) of the Land Registration Rules 2003¸ which can be viewed here, is to be accompanied by documentary evidence, confirming the existence of the overriding interest. The documentation is submitted to HM Land Registry with the application for registration, in order that the appropriate entries can be noted on the Register of Title.
The aim of HM Land Registry is to hold the most up to date and accurate records, in respect of land and property. Such disclosure of overriding interest allows this aim to be met, but also helps avoid enforcement of an unknown interest that could, potentially, be problematic.
There are certain interests that do not require disclosure, however, your conveyancing solicitor will, of course, be able to advise you accordingly in this regard. As examples, such items where disclosure would not be required would include public rights of way, local land charges and interests in coal, or coal mines.
So, if you are unsure about an overriding interest, and require advice, contact our team of solicitors in Preston today, at firstname.lastname@example.org, who will be on hand to assist you.
Alternatively, if you have any other conveyancing query, submit an online enquiry to our team of local solicitors, who are here to help.
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