In England and Wales, it is possible to obtain from the Land Registry a period of priority for applications for registration. For 30 days from the date of the solicitor's search application, the priority period provides protection to the purchaser, lender or other applicant against subsequent entries placed on the title register after the date on which the search is made, but before the purchaser registers his title as owner. Provided the purchaser's application is made within the priority period, registration will be effected free of the conflicting entries. There is no equivalent process in Scotland, although the use of priority notices is something which the Scottish Law Commission has under active consideration, and its recent Discussion Paper on Land Registration: Miscellaneous Issues (No 130) includes detailed recommendations for incorporating a priority arrangement into the Scottish system of land registration.
But it is not always as straightforward under the English System, as it may appear from the outside. In the case of a Deed of Grant of an Easement, completion is not in itself sufficient to ensure the right is enforceable, and it is essential that the Deed is registered at the Land Registry promptly. Consider the following cautionary tale...
Imagine you own a piece of land, Woodlands, for which you have development plans for a large attractive and profitable scheme, if only you could secure a right of way over an existing roadway on the adjacent land known as Greenfields. After many months of negotiating unsuccessfully for the grant of the right of way, you are relieved to be told that the adjacent owner has sold Greenfields to a Mr Smith. Having been introduced to the new owner, you are hopeful that you will now be able to obtain the necessary right of way and proceed with your development. Your hopes are realised, and within a very short period of time you are able to agree a deal whereby you will get the right of way. It seems a simple document and as the development costs have risen during the time it has taken to solve this, you decide not to involve your solicitor in order to save costs. Mr Smith instructs his lawyer and his lawyer prepares the Deed. You execute it quickly and the Deed is complete. Success! Having cleared this obstacle, planning permission for your development is granted shortly thereafter and you are excited at the prospect of now being able to proceed with the development.
A few months later, you are able to get the building contractor to start work on site, the Contractor starts to exercise the right of way across Greenfields. You have never had cause to use the right of way before. A few days after the works are commenced the workers on the site are confronted by a gentleman asking them what are they doing bringing in materials across his land. You get a telephone call from the contractor asking what is going on, as you had told him it was possible to bring building materials across Greenfields, and because of various other temporary roadworks going on around the site, it is far and away the easiest way for the contractor to proceed. You make a telephone call to Mr Smith with whom you negotiated the right of way, who tells you that he has sold Greenfields to Mr Jones. You remonstrate with him that you have this right of way, and ask him to speak to his solicitors. Having obtained details of the new owner Mr Jones, you then ring him. He claims to know nothing of this right of way and explains that such a right may cause problems or difficulties given their own plans for Greenfields. So if the right does not exist as Mr Jones believes, then he will not be prepared to grant one, as he does not want you to be crossing his land. In panic and frustration you ring your own lawyers.
Several days go by and you take the Deed to your solicitor who is concerned the Deed granting the right of way has not been registered at the Land Registry; but they will send the Deed to the Land Registry today, and speak to the solicitors who acted for both Mr Smith and Mr Jones to ensure that matters are resolved. Another call from your solicitors a few days' later reveals that Mr Smith's lawyer who dealt with the right of way knows nothing of a sale of Greenfields, and Mr Smith used a different firm of solicitors on the sale of Greenfields. The solicitor who dealt with the sale had not been told of the right of way or the Deed by Mr Smith and thus Mr Jones' lawyers equally knew nothing about this right of way. The application has by this time been made to the Land Registry and you hope this will resolve the problem. You need to resolve the problem quickly as the contractor is waiting to move on with the works which are hampered by the unforeseen difficulty of getting materials and plant and equipment on to the site.
However, a few days later, you get another telephone call from your solicitor, to advise you that there is a problem at the Land Registry. The Land Registry will not now register the Deed of Easement which creates the right of way against the title of Greenfields, as the Deed was not granted by the party who is now the registered proprietor of Greenfields. The fact that it was granted by the person who owned the land at the time it was granted is not relevant. The registered proprietor of the adjoining land is not now the person who granted the easement and as a result you are unable to register, or otherwise protect the Deed of Grant, and have lost your right of way across Greenfields. Back to square one!
Making a priority search at the land registry before accepting the grant of an easement is necessary to protect the right and it is important to then register it at the Land Registry within the priority period. Failure to do so can result in the right being lost altogether.