Registration of easement on a leasehold folio
Prior to the Registration of Deeds and Title Act 2006 (the 2006 act), a lease of registered land was deemed to be a first registration of an unregistered leasehold interest and, as stated in sections 69 and 72 of the Registration of Titles Act 1964, an easement has to be created by express grant after the first registration of land for it to be a section 69 burden; otherwise it is a section 72 burden.
If an easement contained in a lease was not created by express grant after the first registration of the leasehold folio, it cannot be registered as a burden on the freehold folio.
However, a note under section 72(3) can be made on the folio, on request.
After the 2006 act, a lease of registered land was deemed to be a registered land transaction, and easements created after 2006 in relation to a leasehold folio to be opened for registered land are registerable as a burden under section 69.
In respect of the first registration of unregistered land, in general terms, an easement affecting the land at the time of first registration is not registerable as it has not been created after the first registration of the land. The only thing to do in this case would be to register a section 72(3) note on the new folio to be opened.
It is therefore important when dealing with registered land, and in particular when acting for a vendor, to read through the section 72 burdens very carefully (and especially where it appears that the land was only newly registered on foot of a first registration application) to make sure that there were no easements created by express grant before the first registration of the land, and which are not shown on the folio as a burden or as a section 72(3) note, but which would be a burden under section 72(h) and would need to be disclosed in the section 72 declaration.
One would hope that, if the easement is in writing, it would be with the title deeds as a warning when drafting a section 72 declaration that this easement exists, even though there is no note of it on the folio.
If your client informs you that there is an easement in writing affecting his/her land, but it does not show up on the folio, you should seek a copy of the deed relating to same from your client and disclose it as a section 72 burden.
Practitioners are reminded to advise clients of what a section 72 declaration entails. It is recommended that the full form of section 72 declaration be used rather than the short form: a precedent of the long form is available in the members’ area of the Law Society website.