In many respects, school estates are unique; however, in terms of registered or unregistered land and easements, there is nothing special to consider – their registered title to land works in exactly the same way as for all other land. Michael Goldfinch, commercial property solicitor with Wright Hassall, takes a quick run through the main considerations affecting this aspect of school estates
Understanding unregistered land
Historically, all land in England and Wales was unregistered, with lawyers writing documents that transferred ownership of property. These legal documents would prove ownership and include the parties involved, any restrictive covenants, and also all rights. Land owners would retain their documents – since proof of ownership was based on demonstrating ‘good title’ to the land. The process was drawn out and time-consuming. If your title deeds were lost, or destroyed, it became much more difficult to prove ownership of the land in question.
Compulsory registration is now required for all land in England and Wales, meaning that, when any unregistered property is transferred, it must be registered with the Land Registry. The Land Registry now contains evidence of ownership for more than 86% of the land mass of England and Wales; however, this means that the unregistered land still extends to approximately 5.23 million acres, or an area covering around 3.5 million football pitches.
Title registration reduces risk
The Land Registry continues to register new land, either through compulsory registration (triggered by a transfer or the raising of finance through a mortgage on property) or voluntary registration. It is easy to check if all your land is registered; if any is not, there are significant reasons why it should be.
The most notable reason is the ease with which you can prove ownership. Documents are available from the Land Registry for a nominal fee showing all up-to-date rights and covenants. This proves ownership more easily and helps land owners understand what rights and covenants they benefit from, or are subject to, because all are located or referenced in one place.
It also makes it simpler to deal with the property because all documentation is stored at the Land Registry, so there is no risk of important title deeds being lost or stolen.
Easements and your rights
Easements are rights to cross, or otherwise use, someone else’s land for specific reasons, such as maintaining utility infrastructure or gaining access to other land. They are associated with, and benefit, the land rather than the owner, which means that, if you have purchased land which benefits from an easement to use an access, you can use the access as the new owner of the land without needing to be granted the right again.
Easements are also registered at the Land Registry and shown in an entry for that property; they are, typically, created in one of three ways:
Express grant – usually created by deed when someone sells land but wants to retain certain rights, all of which must be expressly stated.
Implied grant – normally arises when land is sold, but it has to be crossed to reach unsold land. These ‘easements of necessity’ do not need to be specified in any deed.
Prescription – created by long use (more than 20 years); where someone has used a right without force, secrecy or permission, the rights can become permanent.
If you don’t register your rights or covenants, you might forget that you benefit from them; equally, someone else might forget they are bound by them, and could infringe your rights.
If you believe you have acquired such rights, register them promptly. If the land owner gives consent (you act with permission) or seeks to prevent you from using a right (use of the right is by force) before you register it, you could lose the ability to permanently gain that right.
Rights of reverter
‘Rights of reverter’ may grant rights in favour of the previous owner of the land who might have donated it – for example, to help set up a new school. If the school ceases to occupy the site, or wants to sell land to raise capital for other projects ‘rights of reverter’ may come into play and enable the previous owner to reacquire a site or be given it back. Such rights will be registered on the title or buried in unregistered title deeds and are probably the most important – potentially hidden – issue affecting schools.