[2014] UKFTT 0362 (PC)

REF/2013/0276

 

PROPERTY CHAMBER

FIRST-TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

LAND REGISTRATION ACT 2002

 

 

 

 

BETWEEN

 

	VISION ENGINEERING LIMITED   and   ROMILT LIMITED	Applicant       Respondent

Property address: Land on East Side of Suffield Lane, Puttenham

Title number: SY625648

 

Before Principal Judge Edward Cousins

 

Sitting at: Alfred Place

On February 2014

 

Applicant representation: Mr Daniel Bromilow, of Counsel, instructed by Barlow Robbins LLP, solicitors

Respondent representation: Romilt Ltd appeared in person through its Director, Mr Robert J Milton,

 

 

___________________________________________________________________________

 

DECISION

___________________________________________________________________________

Keywords : shooting rights - profit à prendre in gross - grant of leasehold interest of profit for 80 years- application on a first registration to register profit – substantive registration of overriding interest – whether discontinuous lease for less than 7 years – right to buy back profit - Land Registration Act 2002, ss. 3, 27, 29(2)(a)(ii), Sch. 2, para. 6, Sch. 3, para 3, Sch 4, Law of Property Act 1925, ss. 1(1), 84(1), 205(1)(ix) (x) – Land Registry Practice Guides 16, 25 – Land Registration Rules 1925, r. 257(now repealed).

 

Cases referred to: Austerberry v Oldham Corporation [1885] 29 Ch D 750; Webber v Lee (1981) 9 QBD 315; Fitzgerald v Firbank [1897] 2 Ch 96; Smallwood v Shephards [1895] 2 QB 627; Cottage Holiday Associations Ltd v Customs and Excise (1983) 1 QB 735.

 

THE APPLICATION

1.                   By an application in Form FR1 dated 16 ^th July 2012 (“the Application”) Vision Engineering Ltd (“the Applicant”) has applied for first registration at HM Land Registry of a leasehold profit à prendre in gross (“the Profit”) in respect of certain shooting rights (“the Shooting Rights”), for a maximum of 20 days per year, and for a maximum of 10 guns at any one time. Romilt Ltd (“the Respondent”) is the registered freehold proprietor of land on the east side of Suffield Lane, Puttenham, Surrey, over which the Profit is claimed by the Applicant (“the Burdened Land”). The Profit is also claimed over other land which is not the subject matter of the Application. The Burdened Land is registered in the Respondent’s name at HM Land Registry under title number SY625648. The Application has been given a pending title number, namely SY804940.

 

THE BACKGROUND

2.                   The Burdened Land comprises a parcel of land which used to form part of an estate known as Suffield Farm (“Suffield Farm”). Suffield Farm was previously owned by Mr Richard Eustace Thornton, and more recently by Mr Richard Cook who was registered as the proprietor thereof on 10 ^th October 1991. Contained in the bundle of documentation prepared for the hearing (“the Bundle”) is a large scale composite plan (“the Composite Plan”) on which the boundaries of Suffield Farm are shown marked edged red (“the Red Land”). However, the parcels edged in green and contained within the Red Land have been removed from the title and registered under separate title numbers. The area of land falling within the Applicant’s freehold ownership is shown edged pink on the Plan (“the Pink Land”) and is registered under title number SY717032. The Burdened Land is shown in coloured blue (“the Blue Land”) on the Composite Plan. However for the purposes of the Application I shall refer to the notice plan prepared by the Land Registry on which the Blue Land is shown edged XXX (“the Notice Plan”).

 

3.                   The area of land over which the Applicant claims the benefit of the Profit is shown edged in yellow (“the Yellow Land”) on the Composite Plan. The Burdened Land (i.e. the Blue Land) falls within the boundaries of the Yellow Land. The Shooting Rights are said to derive from the terms of a lease dated 12 ^th October 1988 made between Mr Cook and the Applicant (“the Shooting Lease”). The terms of the Shooting Lease were subsequently varied by a deed executed by the same parties on 22 ^nd October 1991 (“the 1991 Deed of Variation”).

 

THE APPLICANT’S CASE

4.                   The case for the Applicant is set out in its Statement of Case which addresses the legal issues raised by the Respondent in its letter of objection dated 7 ^th December 2012, and in subsequent e-mails dated 31 ^st December 2012 and 2 ^nd January 2013. In these documents the Respondent raises a number of issues and relies on a number of arguments as to why the Profit should not be registered as a burden against the Respondent’s title, to which I shall refer in more detail below.

 

5.                   It is the Applicant’s primary contention that the rights granted by the 1988 Shooting Lease are binding as an overriding interest on the Burdened Land notwithstanding that the Profit was not noted on the register at the time when the Respondent acquired the Burdened Land. This interpretation is said to arise by virtue of the provisions of section 29(2)(a)(ii) of, and paragraph 3 of Schedule 3 to, the Land Registration Act 2002 (“the 2002 Act”) the effect of which is that in certain circumstances profits à prendre override registered dispositions. It is submitted by the Applicant that the only exception to this would be if the Respondent was not aware of the existence of the Profit if it had not been exercised within the year preceding the transfer of the Blue Land to the Respondent, and if it was not obvious on a reasonably careful inspection of the land in question.

 

6.                   In this context it is to be emphasised that the 1998 Shooting Lease, as amended and confirmed by the 1991 Deed, gave rise to a Profit, but did not create a legal leasehold estate in land, nor did it create a mere personal right. In generals terms a lease is an estate in land, whereas a profit à prendre is an interest in or over land. It is contended by the Applicant that documents granting shooting rights are habitually referred to as “shooting leases”, but this is technically a misnomer since they are not interests in land, as such.

The Shooting Lease

7.                   Clause 1 of the 1988 Shooting Lease provides as follows:

“………Mr Cook hereby grants to [to the Applicant] and all persons authorised by it…..

1.1 the full and exclusive right for a maximum of 20 days per year (to be calculated from the 15 ^th day of August in any year to the 14 ^th day of August next following) and using a maximum of ten guns at any one time of shooting killing and carrying away (otherwise than by coursing) pheasants partridges woodcocks waterfowl wild geese and ducks of all kinds in over and upon lands woods and premises which are for the purposes of identification only shown edged red on the plan annexed hereto… to hold unto [Vision] for 80 years from the date hereof excepting and reserving to Mr Cook at all times the right to shoot kill and take rabbits and foxes and vermin.”

 

8.                   The terms of the 1988 Shooting Lease were based upon the terms of an earlier shooting lease, granted on 5 ^th June 1980 by Lloyds Bank to Lieutenant Colonel John Francis Rickett (‘the 1980 Shooting Lease’), whereby Lloyds Bank granted Lieutenant Colonel Rickett shooting rights over land described in the Second Schedule of the 1980 Lease as being

 

“ALL THOSE woodlands and fields situate at Puttenham near Guildford aforesaid and comprising part of the estate of the late Ferdinand William Smallpiece (excluding the Golf Course and Flight Pond)”

 

The 1980 Shooting Lease was granted for a term from year to year from 1 ^st March 1980 until determination on twelve months’ written notice at a rent of £250 per annum. However, the 1988 Shooting Lease is for a fixed term of 80 years and not for a term from year to year, as was the 1980 Shooting Lease. Further, the 1988 Shooting Lease was limited to 20 days shoots per year whereas the 1980 Shooting Lease provided for the exercise of the shooting rights at all times on a full and exclusive basis.

 

9.                   The 1980 Lease contains what has been broadly termed a “buy-back” provision. Clause 4(4) provides as follows:

“If in the opinion of the Trustees or their said Agent it shall be necessary from time to time to prohibit shooting over certain parts of the said premises in the interests of good estate management such prohibition shall be accepted by the Tenant forthwith and shall be deemed to compromise a derogation from the grant by the Trustees contained herein PROVIDED THAT such probation shall be of a temporary nature of if permanent shall not affect more than one fifth of the total area of the said premises hereby demised….”

 

It was further provided that if certain areas of the estate were to be affected by the prohibition, then compensation provisions under Clause 3(3) could be invoked. These areas would not appear to be relevant for the purposes of the Application. Clause 2(11) (the tenant’s covenants) of the 1980 Lease also makes reference to

The 1991 Deed of Variation

10.               Mr Cook and the Applicant were parties to the 1991 Deed of Variation, as were a Mr and Mrs Stent, who had by the date of execution of the 1991 Deed of Variation acquired part of the land subject to the Applicant’s shooting rights. The terms of the 1991 Deed seemingly excluded Mr. Cook’s right to buy back the Profit from the Applicant which was contained in the 1988 Shooting Lease, and excluded two parcels of land from the land subject to the Applicant’s Shooting Rights. Other than that, and subject to a proviso expressed to be “for the avoidance of doubt” at Clause 3, Clause 4 of the 1991 Deed provided that “…save as hereby varied the [1988 Shooting] Lease shall continue in full force and effect in all respects”.

 

11.               Following the execution of the 1991 Deed, Mr Cook sold the Blue Land to the Respondent’s predecessor in title, Mr Andrew Ayres, who was registered as the proprietor of the land within title number SY625648 on 18 ^th May 1992. The Land was subsequently acquired by Mr Robert Milton who then transferred it to the Respondent, a company owned by him.

12.               It is submitted by the Applicant that the existence of the Applicant’s Shooting Rights over the Land were disclosed to Mr Milton in the Seller’s Property Information Form completed and served on Mr Milton on Mr Ayres behalf by his solicitors. Further, it is the Applicant’s case that the Shooting Rights have been exercised by the Applicant annually since 1989, as set out in a statement of truth made by Mr Mark Curtis of the Applicant dated 9 ^th November 2012. Evidence was given by Mr Curtis to this effect. He also asserted that Mr Milton was well aware of the exercise of the Shooting Rights by the Applicant as from the time of the respondent’s purchase of the Bluer Land in 2005.

 

THE RESPONDENT’S CASE

13. During the hearing Mr Milton gave evidence for the Respondent during which he referred to a number of points made in the Respondent’s Statement of Case. Mr Milton also produced a response to the Applicant’s skeleton argument dated 30 ^th January 2014, together with a list of issues.

 

14. I have already made reference to the issue as to whether or not the 1998 Shooting Lease created a leasehold interest, or a profit à prendre as an interest in land, or whether it gave rise to a purely personal right to shoot. I shall deal with these substantive issues, below. However, a number of further points are made by the Respondent. A summary of these is as follows:

 

(1)        The Respondent challenges the jurisdiction of this Tribunal to hear the Application. This is on the basis that the Application should never have been referred to the Tribunal in the first place as it lacks jurisdiction to hear the case. It is asserted that the case turns on an administrative issue. It should have been referred to court, or the claim should have been commenced in court (paragraph 1, at pages 70/71).

(2)        It is contended that the rights granted by the 1988 Shooting Lease cannot be registered as these rights relate to a lease of less than seven years’ duration when the discontinuous aspect is taken into account (paragraph 1, pages 70/71).

(3)        The Respondent also refers to the case of Austerberry v Oldham Corporation [1885] 29 Ch D 750 on the basis that the burden of a covenant relating to freehold land does not run with the land (paragraph 4, page 72). It is asserted that the Application concerns a lease and not a profit à prendre in gross capable of registration.

(4)        It is contended that the rights require registration, and also need to be reserved once granted in the conveyance or on transfer of the land subject to the Profit (paragraphs 5 and 6, pages 72/73).

(5)        Is also submitted that Clause 3.1 of the 1988 Shooting Lease contains the right to buy back the Shooting Rights granted to the Applicant, and notices were served by the Respondent purporting to exercise that right in April 2011 and April 2012 (paragraph 7, page 73/74).

(6)        Is contended that there has been considerable delay in applying for registration of the right which therefore, in effect, defeats the Application (paragraph 8, page 74).

(7)        It is also asserted that provisions of Schedule 4 to the 2002 Act apply in that the correct application to be made is that of rectification and not registration (paragraph 11, page 76).

(8)        It is submitted that the provisions of Section 84(1) of the Law of Property Act 1925 (“the 1925 Act”) apply (paragraph 12, page 77).

(9)        Is also suggested that freehold land cannot be subject of any encumbrances “unless those rights are specifically included in the title deeds” (paragraph 13, page 77).

(10)    The Burdened Land has been “de-registered” by the Surrey Police Firearm Licensing Department as from 6 ^th November 2012 as it was no longer suitable for shooting. There had been a change in its character as it is grazed by sheep and foal mares which has led to its “de-registration” (paragraph 22, at page 88).

(11)    It is also suggested that to register the Profit would amount to a “tortuous” interference with Respondent’s rights (the conclusion at page 86).

(12)    Fowl raised by the Applicant for shooting purposes are not wild game, and therefore do not fall within the definition of frustus naturales, but are frustus industriales.

 

THE APPLICANT’S RESPONSE

15.               As to these various points the Applicant makes the following responses:-

(1)        The Tribunal has the appropriate jurisdiction to hear the case under the 2002 Act and the Application has been properly referred to it. The Respondent’s challenge to its jurisdictional status is misconceived.

(2)        The assertion that the rights granted by the 1988 Shooting Lease cannot be registered as they arise under lease of less than 7 years is misconceived. It is grant of a profit à prendre and not an interest in land, and in any event the leasehold granted is for the term of 80 years. The fact that rights granted under the lease are discontinuous does not thereby give rise to a lease of less than 7 years (see below).

(3)        The reliance upon the case of Austerberry v Oldham Corporation is also misconceived. This case is concerned with the burden of restrictive covenants, and has no application to the present circumstances.

(4)        As the Profit is an overriding interest it does not require registration; nor does it need to be reserved once created in any conveyance or transfer of the land the subject to the Profit.

(5)        As to the right to buy back the Shooting Rights granted to the Applicant, Clause 4(4) of the 1980 Lease provides that shooting could be temporarily prohibited on an area of up to one-fifth of the land over which shooting rights were granted by the 1980 Shooting Lease. This condition was expressly incorporated into the 1988 Shooting Lease (see Clause 1, pages 42 and 43). However, the Respondent seeks to argue that since the land it owns less one-fifth of the land over which the Shooting Rights were granted it is therefore entitled to rely upon a prohibition on all shooting over its land. The Applicant asserts that this is interpretation is incorrect, but in any event it is outside the scope of issues for this Tribunal to determine. The issue to be determined, it is asserted, is limited to the question of whether or not the Applicant’s Shooting Rights should be registered against the Respondent’s registered title. Therefore the exercise of those rights and the true construction of 1980 Lease and 1988 Shooting Lease is therefore outside the remit of this Tribunal. Further, the notices served by the Respondent purporting to exercise that right in April 2011 and April 2012 (or any such notice) are therefore of no effect.

(6)        Any delay in seeking to register the Profit cannot defeat an application to register and interest which currently is an overriding interest. No prejudice is suffered by the owner of the land subject to the interest since it is binding upon that land irrespective of registration.

(7)        Registration of an overriding interest is not rectification of the register. Accordingly, the provisions of Schedule 4 to the 2002 Act do not apply.

(8)        Section 84(1) of the 1925 Act has no relevance to the case. That concerns restrictive covenants, not profits à prendre.

(9)        The assertion that freehold land cannot be subject of any encumbrances “unless those rights are specifically included in the title deed” is simply incorrect. If this were to be the position overriding interests could never exist.

(10)    As to the assertion that Shooting Rights could be “de-registered” is again simply incorrect. The police do not hold registers of land over which Shooting Rights are exercised. Mr Milton was asked questions in cross-examination on this point and could provide no support for this assertion. He referred to a letter dated 6 ^th November 2012 which he sent to the police, but to which there was no reposnse.

(11)    As to the suggestion that there would be some interference with the Respondent’s rights if the Profit were to be the subject of registration is also wholly unfounded.

(12)    Finally, there is no basis in law for the suggestion that fowl raised by the Applicant somehow ceased to be wild game.

 

16.               It is further contended by the Applicant that since Mr Milton was aware of the Applicant’s Shooting Rights (as he acknowledged during the course of his evidence at the hearing), and since the Applicant had exercised those rights prior to the transfer of Burden Land to the Respondent, the exception provided by paragraph 3(1) of Schedule 3 to the 2002 Act therefore cannot apply. Further, reliance is placed upon paragraph 7.4 of the Seller’s Property Information Form dated 21 ^st April 2005 where in answer to the question “Are there any other formal or informal arrangements which someone else has over your property?”, the answer is “yes – rights of way and shooting rights”. It is submitted that the Shooting Rights granted by the 1998 Shooting Lease are therefore binding upon the Respondent as a profit à prendre. It is further submitted that the Respondent’s contentions are based upon the assumption that the Applicant’s interest in the Burdened Land amounts to a leasehold interest in land and not a self-standing interest over land. This interpretation is wholly misconceived as a matter of law.

 

17.               It is also contended by the Applicant that it cannot be argued at the 1988 Shooting Lease gave rise to a purely personal right to shoot. It is accepted that in some sections of a 1988 Shooting Lease are purely personal (such as Clauses 3.1 and 3.2 at page 44), but the grant of the right to shoot was not a personal right.

 

THE LIST OF ISSUES

18.               Both parties produced lists of issues. However for the purposes of this decision I consider that those drafted by Mr Bromilow, on behalf of the Applicant, succinctly summarise the legal issues with which the case is concerned. These are as follows:

 

(1)        Are the Shooting Rights granted by the 1988 Shooting Lease purely personal or are they intended to create an interest or an estate in land?

(2)        If they are not purely personal, does the 1988 Shooting Lease give rise to a lease or a profit à prendre?

(3)        Does the interest or estate in land created by the 1988 Shooting Lease bind successors in title of the land subject to those rights without registration?

(4)        If successors in title are bound by those rights, should they be registered against the Respondent’s title?

 

THE LEGAL POSITION

19.               There are a number of provisions contained in the 2002 Act to which reference should be made in the analysis of the issues in this case. It is also necessary to refer to the Case Summary prepared by the Land Registrar for the referral to the Tribunal, and the Land Registry’s Practice Guide 16. The analysis raises points of some novelty and complexity.

 

20.               The starting point is the Case Summary. The Registrar makes the following points-

“There is uncertainly as to whether or not this is a registrable profit a profit à prendre in gross.

 

whether or not this profit is a discontinuous lease, given that the 20 days a year on which it can be exercised are not specified by date. If it is not [a discontinuous lease] and is a valid legal interest section 3(3) [of the 2002 Act] would not appear to affect because the term would then appear to have more than seven years left to run.

 

The Case Summary then goes on to state that there are no decided cases on the issue, the only relevant one being on time share arrangements for land where the dates of occupation are specified. [1] It is further stated that if the Profit is classed as a subsisting valid but discontinuous lease it appears that section 3(4) of the 2002 Act cannot assist because the profit is not an estate in land, and this provision expressly refers to estates in land.

 

Land Registry Practice Guide 16 – Profits à prendre

21. The position adopted by the Land Registry in Practice Guide 16 requires some analysis. Paragraph 2.2 of the Practice Guide defines a profit à prendre in gross as being a right not attached to the ownership of any particular piece of land. It correct points out that the owner of the profit may not own any land at all and may dispose of the profit independently from any land they do own. The law relating to rights of common illustrates this. A profit à prendre in gross may be substantively registered with its own title, and this is the subject of the Practice Guide. Alternatively, a profit à prendre in gross may be the subject of notice in the register of the affected land, without being registered with its own title, or if the affected land is not registered, the subject of a caution against first registration.

 

22. In paragraph 2.5 of the Guide it is further stated that a profit à prendre in gross created by express grant over unregistered land, or before 13 ^th October 2013 over registered land, is not compulsory registrable. However, it may be registered if it is held in fee simple or for a term of years of which more than seven years remain unexpired. The Practice Guide then goes on to state-

“The term, or the number of years unexpired, may not be obvious where a leasehold profit à prendre in gross is ‘discontinuous”, i.e. is granted either;

·          for specified days weeks or months each year for a specified number of years, or

·          for a specified number, or a maximum number, of days, weeks or months each year, but the grantee free to choose which particular days weeks or months, for a specific number of years…”

 

Where the lease is, for example, for one month (or a maximum of one month) a year for a period of 10 years, there is no clear authority on whether the term for the purposes of the 2002 Act is 10 years, or only 10 months (10 x 1 month) and therefore whether the right is capable of being registered with its own title [2]. It seems to us that the position may be as follows

·          where the lease involves specific identified days, weeks or months of the year, the term for the purposes of the 2002 Act is (in our example) 10 months only, and so cannot be registered with its own title.

·          Where the lease involves a number of days weeks or months with the grantee free to choose which, it can be substantively registered on a first registration application but with a qualified title, the qualification being that registration is effective provided that, for the purposes of section 3(3) of the 2002 Act, the estate was granted for a term of which more than seven years were unexpired at the date of the application. If the profit is granted over registered land, then it can be registered but with a note being added to the property register to the effect that the registration is only effective if, for the purposes of paragraph 6 of Schedule 2 to the 2002 Act, the estate was granted for a term exceeding seven years form the date of creation”

 

The 2002 Act – relevant provisions

Voluntary registration of any unregistered legal estate [3]

23. In this context it is to be noted with regard to the registration of title the regime in force prior to the enactment of the 2002 Act was governed by the Land Registration Rules 1925. The former Rule 257 provided that the benefit of an easement, right, or privilege shall not be entered on the register except as appurtenant to a registered estate, and then only if capable of subsisting as a legal estate.” This thereby prevented substantive registration of profit à prendre in gross with separate titles . Formerly the only permitted entry in the register of title of a profit à prendre in gross was the entry of a burden of it on the servient registered title. This was despite the express provision contained in the former Rule 50 as to the registration of incorporeal hereditaments. This anomaly was corrected by Section 3(1)(d) of the 1925 Act. Thus since 13 ^th October 2003 a profit à prendre in gross is voluntarily registrable as an interest in land, and registration can be required under section 3(2) where the lease of the legal estate is more than 7 years unexpired. Thus the interest can both be substantively registered and noted in the register of the servient land. This position is to be found in the following provisions.

 

24. Section 3 of the 2002 Act provides as follows:-

(1)        This section applies to any unregistered legal estate which is an interest of any of the following kinds-

(a)                  an estate in land,

(b)                a rentcharge,

(c)                a franchise, and

(d)               a profit à prendre in gross.

 

(2)        Subject to the following provisions, a person may apply to the registrar to be registered as the proprietor of an unregistered legal estate to which this section applies if-

(a)                the estate is vested in him, or

(b)                he is entitled to require the estate to be vested in him.

 

(3)        Subject to subsection (4), an application under subsection (2) in respect of the leasehold estate may only be made if the estate was granted for a term of which more than seven years are unexpired.

(4)        In the case of an estate in land, subsection (3) does not apply if the right to possession under the lease is discontinuous.

 

Dispositions of registered land – effect of dispositions on priority

25.               Section 29 of the 2002 Act provides as follows:

 

(1)        If a registrable disposition of a registered estate is made for valuable consideration, completion of the disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration.

 

(2)        For the purposes of subsection (1), the priority of an interest is protected-

(a) in any case, if the interest-

(i)          …..

(ii)        falls within any of the paragraphs of Schedule 3

(b)…..

 

Unregistered interest which override registered dispositions

Easements and profit à prendre

26.               Paragraph 3 of Schedule 3 provides that-

(1)    A…profit à prendre…..which at the time of the disposition-

(a)        is not within the actual knowledge of the person to whom the disposition is made, and

(b)        would not have been obvious on a reasonably careful inspection of the land over which the …profit is exercisable.

 

(2)    The exception in sub-paragraph (1) does not apply if the person entitled to the easement or profit proves that it has been exercised in the period of one year ending with the day of disposition. “

 

Section 1 of the 1925 Act

27. Section 1(1) of the 1925 Act defines those interests which constitutes estates in land, and provides as follows:

(1)        The only estates in land which are capable of subsisting or of being conveyed or created at law are-

(a)       An estate in fee simple absolute in possession;

(b)      A term of years absolute.

(2)        The only interests or charges in or over land which are capable of subsisting or of being conveyed or created at law are-

(a) An easement, right, or privilege in or over land for an interest equivalent to an estate in fee simple absolute or a term of years absolute.”

 

 

For the purposes of the 1925 Act, “land” is defined by Section 205(1)(ix) as including “an easement, right, or privilege, or benefit in, over, or derived from land.” By virtue of Subsection (1)(x) “legal estates” mean “the estates, interests and charges, in or over land (subsisting or created at law) which are by [the 1925 Act] authorised to subsist or to be created as legal estates…”

 

Legal estates and legal interests

28. Thus to summarise - in the case of an unregistered legal estate a distinction is to be drawn, inter alia, between an interest of the legal estate in land and the interest of a legal profit à prendre in gross. As “land” for the purposes of the 1925 Act includes incorporeal hereditaments then a term of years absolute can be granted for the demise of a profit à prendre in gross, being an interest capable of subsisting or of being created at law. [4] Section 3 of the 2002 Act also distinguishes an estate in land from a profit à prendre as in interest in land. A profit à prendre is therefore neither an estate in fee simple absolute, and nor is it a term of years. It is an interest in land, it is not an estate in land.

 

Knowledge and inspection

29.          There are two limbs to Paragraph 3 of Schedule 3, namely (a) actual knowledge at the time of disposition, and (b) as to whether the profit à prendre would have been obvious on a reasonably careful inspection. The evidence given by Mr Curtis was that the Applicant had exercised its right to shoot over the Burdened Land since 1988. Further, although permission to enter was raised as an issue by Mr Milton in his cross-examination, it was denied by Mr Curtis that permission was ever sought and obtained. If Mr Milton had made a request not to go into a particular field because livestock was present then they would not do so, as there were concerns about injury. Further, it was stated that at no time during the 5 years or so since 2005 had Mr Milton ever challenged the exercise of the rights. In this context during the evidence it was apparent that Mr Milton was aware that the Profit had been and was being exercised. This aspect arose not least by the fact that Mr Milton had tried to come to an arrangement with Mr Curtis to sell the land in question, and that apparently Mr Milton was at one time keen for his son to participate in the shoots.

30.               Further, Mr Milton during the course of his evidence accepted in cross-examination that he was not only aware when he purchased the Blue Land in 2005 that the Shooting Rights were being exercised, but also since then he was aware that shoots was being conducted over the Blue Land, and elsewhere. I have already made reference to the information contained in the Sellers Information Form, above. Another plank of Mr Milton’s evidence was his reliance upon the assertion that the Police had in some way certified that the land was unsuitable for the purposes of conducting shoots. Again this is a feature which demonstrates that Mr Milton was aware that the Profit was being exercised over the Blue Land.

Discontinuous Leases

31.               The Land Registry’s Practice Guide 25 (Leases – when to register) at paragraph 3.9 provides information on registration of discontinuous leases, but is confined to “where the lessee’s ‘right to possession’ of the land is discontinuous.” It may be of a property e.g. a flat, apartment or market stall, and arises either where there is a specified number of days in each week e.g. every Monday to Friday inclusive), or a specific week or weeks in a calendar year. It does not address the issue of a lease of an incorporeal hereditament.

 

32.               There is only limited case law on the definition and the effect of a discontinuous lease. Mention has already been made of the case of Cottage Holiday Associations Ltd v Customs and Excise. [5] In Smallwood v Shephards [6] the defendant had exclusive possession of land for roundabouts and swings at fair grounds for three successive specified Bank holidays. It was held that there was one agreement for the possession and use of land on three occasions at a single lump rent even though the agreed letting was not continuous. [7] Both these cases were concerned with the possession and use of land for specified days, and the analogy with the present case is (albeit that the days are unspecified) that the rights granted under Shooting Lease amount only to a total of 1600 days (80 years x 20 days). This means that it is incapable of complying with the registration requirements.

 

33.               Neither of these cases was concerned with an incorporeal hereditament in the nature of a profit à prendre, i.e. an interest in land as opposed to the land itself. In any event in both cases the possession of the land was for specified periods or dates. As noted above, in the Cottage Holiday case the time share was for 80 specified periods of one week each, and in Smallwood v Shephards case it was for three successive Bank holidays.

 

34.               I have come to the conclusion that only limited assistance can be found in the case-law referred to above. Some assistance can be found in paragraph 2.5 of the Guidance set out in Practice Guide 16. Where the grantee is free to choose which days he can exercise the right (as in the present case) it can be substantively registered on a first registration but with the caveat that it should be registered with qualified title “… the qualification being that registration is effective provided that, for the purposes of section 3(3) of the 2002 Act, the estate was granted for a term of which more than seven years were unexpired at the date of the application.”

 

35.               Some further assistance can be found in the definition of a term of years at common law whereby a landlord lets lands, tenements or hereditaments to another for a term of years certain, and every estate which must expire at a period certain is an estate for years. [8] This means, in my judgment, that despite is apparent discontinuity in that the Profit is exercisable on 20 days between 15 ^th August and 14 ^th August in each year, it is a legal estate granted for a period in excess of 21 years the Shooting Rights being exercisable at any time on unspecified days over a 12 month period during each year of the 80 year term.

 

Case-law

36.               The authorities upon which the Applicant relies in support of that contention that the Shooting Lease is not in fact a grant of a leasehold interest in land (as asserted by the Respondent) but the grant of an interest over land are the following:

 

(1)        In Webber v Lee [9] it was held by Brett LJ that “It cannot at the present day be denied, that when a right to shoot and take away game has been created by grant, that is by deed, it is a profit à prendre. Cotton LJ observed that “Upon the case it is clear that the right to kill and take away game is a profit à prendre, and an agreement for the enjoyment of it is a contract for an interest in land.”

 

(2)        Similarly, in the case of Fitzgerald v Firbank [10], it was held that the grant of an “exclusive right of fishing” gave rise to a profit à prendre and not a mere licence to fish. Lopes LJ held that “It seems to me that it cannot be contended that this is only a mere licence: it is a profit à prendre. It is the right to fish in the water; and, when the fish are caught, it is a right to the property in the fish.”.

 

37.               I come to the following conclusions:

(1)        The Profit is an interest in land falling within one of the four categories of unregistered legal estates to susceptible to voluntary registration of title (Section 3(1)(d) of the 2002 Act). It is not an estate in land, and the term of years by which it was created (namely the Shooting Lease) is not a leasehold interest in land – it is the lease of a profit;

(2)        (subject to the considerations set out below) the Applicant as the proprietor of an unregistered legal estate (i.e. the Profit) is entitled to apply to the Registrar as the Profit is vested in it (Section 3(2) of the 2002 Act);

(3)        The Profit is an overriding interest falling with the provisions contained in Paragraph 3 of Schedule 3 to the 2002 Act;

(4)        There is no requirement within the provisions the 2002 Act relating to voluntary registration of title which specifies that the Profit should have been registered at the time of the transfer of the Blue Land to the Respondent;

(5)        However, an application under Section 3(2) can only be made if the leasehold estate was granted for a term of which more than seven years remains unexpired;

(6)        The dis-application contained in Section 3(4) if the “right to possession under the lease is discontinuous” cannot be relied upon to assist as the term of years creating the Profit is not estate in land;

(7)        The Shooting Lease cannot be described as a discontinuous lease of an interest. It might be more apt to describe it as a lease of a discontinuous interest i.e. it is the grant of the Profit by way of a term of years, albeit that the rights granted are exercised discontinuously. However, the leasehold interest was granted for the term of 80 years and the rights granted thereunder can be exercised at any time within the 12 month period over the term of the lease granted. It is therefore, in my judgment a legal leasehold interest granted for 80 years.

 

 

 

THE DECISION

38.               Having regard to the factual and legal position set out above, I have no hesitation in reaching the conclusion that the Application must succeed and that the profit should be registered under title number SY804940, and that it should be noted against the title of the Burdened Land title number SY625648. In my judgment none of the points made by the Respondent has any merit in law, and that the various points made by the Applicant are correct. The rights granted by the 1998 Shooting Lease are binding as an overriding interest on the Burdened Land notwithstanding that the Profit was not noted the time when the Respondent acquired the Burdened Land. Mr Milson fairly admitted during the course of cross examination that he was aware that Shooting Rights had been exercised over the Burdened Land and continued to be exercised. Moreover, he has been aware since the Respondent purchased the Blue Land that the Applicant has made use of the land for the purposes of shooting and continues to do so.

 

39.               Accordingly, in so far as the list of issues is concerned I find the following:

 

(1)        The rights granted by the 1998 Shooting Lease were intended to create an interest over land but not an estate in land, and also were not intended to be purely personal;

(2)        The 1998 Shooting Lease gives rise to a profit à prendre;

(3)        The interest created by the 1998 Shooting Lease is an overriding interest which binds successors in title to those rights without registration.

(4)        Those rights are not required to be registered; they can be registered on a voluntary basis against the Burdened Land.

 

40. Accordingly I direct the Chief Land Registrar to give effect to the Application, and the title to be noted is a term of years absolute. Costs should follow the event.

 

 

Dated this 11 ^th day of April 2014

 

 

BY ORDER OF THE TRIBUNAL