Practitioners are reminded that, by virtue of section 69 of the Registration of Title Act 1964 (RTA 1964), easements and profits à prendre created by express grant or reservation prior to first registration of the servient tenement are not capable of registration as a burden on the newly opened folio. Instead, once the title to the servient tenement is registered, such easements and profits à prendre become burdens affecting the servient tenement without registration by virtue of section 72(1)(h) of the RTA 1964. It is therefore recommended that the following practice be adopted:

1. When making an application for first registration of a property affected by an easement or profit à prendre created by express grant or reservation, practitioners should also apply, by virtue of section 72(3) of the RTA 1964, for the entry of a notice on the register of the existence of the easement or profit à prendre. There is no specific form that must be used when applying for the registration of such a notice, but the deed of grant or reservation should be lodged, accompanied by a suitable map showing the claimed right. As the Land Registry will not be mapping the right on the registry map, the map showing the claimed right need not comply with Land Registry mapping requirements. However, the easement or profit à prendre should be clearly marked on the map and the location of the easement or profit à prendre be easily identifiable. Once registered, the entry of the notice is made on the folio by reference to the map filed on the instrument. No description of the right is shown on the registry map. A copy of the grant or reservation should be retained with the title deeds for future reference.
2. On future sales of the servient tenement (post registration), the section 72 declaration should disclose the existence of the easement or profit à prendre.

Easements or profits à prendre created by express grant after registration are capable of registration by virtue of section 69(1)(j) of the RTA 1964 and must be registered in order to affect the servient tenement.

Practitioners are also referred to the practice note in relation to registration of an easement on a leasehold folio, published in the November 2012 issue of the Gazette (p53).