The Gazette 1977

JULY

GAZETTE

last month's amendment to the Rules. The conversions of Possessory Title into Absolute or Good Leasehold title where the property has not been purchased under the Land Purchase Acts are dealt with in Rules 38 and 39. There are not many of these applications. Rules 41 to 44 deal with general provisions as to conversion of Possessory or Qualified titles. Rule 45 deals with other examinations of title outside the Register, e.g. the examination of the title of a lessor when the ownership of the lease is registered with good leasehold title, for purpose of noting that it is converted to Absolute Title. SECTION 49 APPLICATIONS - SQUATTER'S RIGHTS Applications where it is claimed that title has been acquired by mere possession, hitherto dealt with by the Courts under Section 52 of the 1891 Act, may now be made in the Registry. Under Section 49 of the 1964 Act the Registrar was empowered to register an applicant in such cases when he is satisfied that the applicant has acquired the title. Rule 46 prescribes that such applications should be made in Form 5 or such modifications as the case may require. If the Registrar is satisfied with the title he may register the applicant as full owner of the property with an Absolute, Good Leasehold, Possessory or Qualified title as the case may require. The application is usually for an Absolute Title. In many cases these applications are based on the supposition that twelve years undisturbed possession is sufficient for the purpose of registration as full owner with an Absolute Title on the Freehold Register. In fact, the land on which the applicant has squatted may be the subject of a long lease. Even if the property is shown to be freehold the persons entitled may be under a disability; or the lands may be in settlement in which case the squatter may only be acquiring the estate of a tenant for life. In such cases twelve years possession does not entitle the applicant to the freehold interest. It is strictly necessary to show 40 years title by the applicant or his predecessors and to show who were the true owners at the date of dispossession, and that their claim has been barred. The 40 year period may be curtailed in special circumstances. A 19 year period was accepted by the Court where the lands were a Commons (on appeal from Registrar). Nevertheless every case of title claimed by long possession will be considered on its merits. Such applications are usually made by one member of a family remaining on after the others have died or departed from the lands. The facts should be fully set out in Form 5 as to dates of death and of departure etc. In Section 49 cases statements such as that the appli- cant has become entitled by operation of the Statute of Limitations have been criticised by High Court Judges. They should not be accepted. It is for the applicant to prove the facts and for the Examiner to decide whether on the facts proved the title sought has been established. It is in the discretion of the Examiner dealing with the application whether notices may or may not be served where it is sworn that a person has been out of the property and long barred. Short social visits by those who left are not enough to prevent the Statute running against them. A son remaining on the death of the registered owner has been held entitled although his wife worked the

under a contract limiting only the length of title to be shown. Sub-rules (2) (3) and (4) of Rule 19 provided that the Registrar might in specific cases accept a certificate by a solicitor in Form 3 when the market value of the property did not exceed £8,000 and make the registration without any further examination of title. This figure of £8,000 was raised to £20,000 in 1973 and is now £25,000 under the amending Rules which came into operation on 1st April 1977. These amending Rules (S.I. 89 of 1977) also prescribed a new form of certificate. It is hoped that the use of this new certificate will speed the registration of Provision is now make by Section 82 of the Act for the entry on the Folio of appurtenant rights acquired by Grant or Court Order attached to the registered lands and Rule 25(b) sets out the requirements for such an application. Only since the passing of the Land Act 1965 has the Land Commission power to vest appurtenant rights. Appurtenant rights may be extinguished by law or by statute or by express or implied release. It is extremely difficult to establish the extinguishment of such a right by abandonment. In fact for registration purposes a Court Order would probably be necessary. The right to take turf for fuel in a house is not appurtenant to the lands but to the dwellinghouse situate on the lands. It cannot be apportioned or severed from the dwellinghouse. Normally ah easement must be appurtenant to lands and cannot exist in gross. It is, therefore, necessary to ascertain the dominant tenement for the benefit of which the easement exists and to enter the right as a burden on the servient tenament. There is an exception under Section 69 of the 1964 Act where the right of the Land Commission or Local Authority to lay pipelines for any purpose may be registered as a burden. Rule 28 deals with mines and minerals on applications for first registration of the ownership of property. Most of the lands registered under the Registration of Title Acts were purchased under the various Land Purchase Acts and roughly speaking those purchased prior to the 1903 Land Act acquired the mines and minerals, and those purchased subsequently did not. Rule 30 deals with applications for first registration of mines and minerals; and of portions of premises such as a flat or a floor of a house. If any application for registration includes foreshore the fact should be stated in the application so that the Registrar may notify the Minister for Transport and Power as required by the Act. Cautions against First Registration may be entered by persons having an interest in the property (Rules 31 and 32). DISCHARGE OF EQUITIES Rules 33 to 37 deal with conversion of Possessory Title into Absolute Title where the property has been purchased under the Land Purchase Acts. This is the old discharge of equities and the Rules are similar to those in operation for the last thirty years. Note that under Rule 35 the conversion may now be made on a certificate by the solicitor in Form 15 where the purchase money is under a certain figure. This figure is now £25,000 after 100 applications under this Rule. APPURTENANT RIGHTS