The important, but briefly reported, case of Peachey v Lee (1964) 192 Est Gaz 365 held that in reliance upon r254(2) Land Registration Rules 1925 if the registered title showed the benefit of an easement as appurtenant to a parcel of land, an easement binding upon the servient land was created, even though the easement otherwise did not exist or did not bind the servient title.
The question of whether the same result applied under the Land Registration Act 2002 does not appear to have been addressed by the Courts or Tribunals and is not the subject of commentary in any of the leading textbooks. In Sanford v Godfrey REF NO 2023/0610 a decision of First Tier Tribunal (Property Chamber-Land Registration), a predecessor of the applicant claimed to have acquired a right of way by prescription and supported this with a Statutory Declaration. A subsequent purchaser of the land applied for first registration of title under the Land Registration Act 2002 and the registered title showed that the land had the benefit of the right of way.
The issue in Sanford v Godfrey was whether the right of way could be noted upon the registered title of the servient land, in effect, whether the right of way was binding upon the servient land. The servient owner objected upon the ground that the evidence in support of the prescriptive easement was insufficient. Richard Oughton as Counsel for the applicant argued that in reliance upon r33 Land Registration Rules 2003, r74, 75 Land Registration Rules 2003 (as originally enacted) and s11(3) Land Registration Act 2002 the entry of an easement as appurtenant to the registered title was conclusive and accordingly the Tribunal did not have to consider the merits of the prescriptive easement. The submission was that Peachey v Lee applied under the Land Registration Act 2002 and that registration of the benefit of an easement had the same conclusive effect as the registration of the land itself. In a concise judgement, the First Tier Tribunal accepted this submission, noting that the Land Registry registered the benefit of the easement in unquailed terms, as opposed to a right that was merely “claimed”. The Respondent could apply to rectify the Applicant’s registered title, but no such application had been made.
It is intended that Richard Oughton will produce a longer article dealing with Peachey v Lee and the position under the Land Registration Act 2002.
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