Written evidence from the Ministry of Justice (MAR 31)

INQUIRY INTO MANORIAL RIGHTS

EXECUTIVE SUMMARY

• The Ministry of Justice is responsible for general land law in England and Wales.

• The term “manorial rights” refers to certain rights that were preserved when copyhold tenure was abolished in 1926.

• The most important manorial rights are thought to be those that relate to mines and minerals, the holding of markets and fairs and sporting rights. These rights have their historical roots in the now defunct manorial system but are otherwise in principle indistinguishable from other property rights.

• The department does not have statistical information about the frequency with which these rights are exercised or the impact of their exercise on landowners.

• The department is aware that the recent surge in registration of notices in respect of existing rights on the land register has caused anxiety to some property owners, but is not aware of any problems caused by the actual exercise of manorial rights. The increase in the number of notices is the result of recent changes to land registration law intended to make the register more complete and thereby provide prospective purchasers and others with better information about the rights affecting the property in question. 

• The department has no plans to change the law relating to manorial rights, but abolition of manorial rights would be likely to necessitate the payment of compensation to the persons deprived of their property.

INTRODUCTION

1. The Ministry of Justice thanks the Justice Committee for its invitation of 20 June 2014 to submit written evidence to the inquiry. The department is responsible for the general land law of England and Wales of which the law relating to manorial rights forms part.

2. The department notes that the evidence may address any aspect of the current laws and procedures in relation to manorial rights that may be of relevance to the Committee's inquiry, but that the Committee would be particularly interested in receiving evidence related to the following points
• The recent incidence of manorial rights being exercised, and the impact upon landowners.
• The arguments for and against the abolition of manorial rights.
• The implications of abolishing manorial rights, including the cost of any appropriate compensation that may be required.

3. This submission addresses each of these topics in turn before commenting of some other issues relating in general terms to manorial rights. Before doing so it may be helpful to set out the department’s understanding of the term “manorial rights” and to indicate when they bind owners of land.

4. From the content of the invitation to submit evidence the department has assumed that the Committee’s inquiry is not intended to include consideration of lordships of the manor or the ownership of land by virtue of a manorial title. Should the Committee be interested in these subjects and the Committee so wish, the department will be pleased to provide evidence on them to the Committee.

What are manorial rights?

5. Manorial rights are certain rights over land in England and Wales that were preserved when copyhold tenure was abolished in 1926. 

6. Copyhold tenure[1] was tenure of land “by copy of Court Roll”. The roots of copyhold date back to before the Norman Conquest. The history is complicated but in brief Court Rolls of the manor came to record the title of the tenants of the manor to their properties and the tenants were given a copy of the entry recording their title. This is apparently the origin of the term “copyhold”. Title to copyhold land was, or became in practice, inheritable and transferable subject to the customary rents and services to which it was subject. By the seventeenth century it seems that copyhold land was held by rent rather than for services. Nonetheless the legal form lingered on until all remaining copyhold land was “enfranchised” into freehold tenure on 1 January 1926.[2]

7. The meaning of “manorial rights” for the purposes of the Land Registration Act 2002 was explained by the Law Commission in the report that contained the Bill which was subsequently enacted as the 2002 Act.  It summarised manorial rights as being the following rights of the lord of the manor in respect of copyhold land or of the copyhold tenant:

(1) the lord’s sporting rights;

(2) the lord’s or tenant’s rights to mines and minerals;

(3) the lord’s right to hold fairs and markets;

(4) the tenant’s rights of common; and

(5) the lord’s or tenant’s liability for the construction, maintenance and repair of dykes, ditches, canals and other works.[3] 

8. When copyhold tenure was abolished in 1926, these rights were preserved indefinitely unless ended by written agreement between the lord and tenant.  It is generally accepted that the first two of these manorial rights – the lord’s or tenant’s rights to mines and minerals and the lord’s sporting rights – are the most important.[4]

9. The precise nature of manorial rights may vary from manor to manor, but they are subject to the general law so that coal is vested in the Coal Authority[5] and petroleum is vested in the Crown[6] irrespective of any manorial right. Manorial rights to mines and minerals do not therefore include rights for extraction of gas or oil, including shale gas.

When manorial rights bind owners of land

10. Manorial rights were “overriding interests” under Schedules 1 and 3 to the Land Registration Act 2002 up until midnight on 12 October 2013.  Overriding interests are third parties’ property rights that bind a purchaser of the affected land even though the rights are not mentioned in the register of title (commonly called “the land register”) kept by the Land Registry, and even though the purchaser does not know about them.  So up until this date manorial rights bound the owners of land affected by them.  And if the ownership of the land has not changed since then, the owners will remain bound today by the manorial rights.

11. After 12 October 2013, manorial rights ceased to be overriding interests.  The effect of this differs slightly according to whether the affected land was unregistered or registered on that date.

12. If the land concerned was unregistered land on that date and is then registered for the first time at a later date, the owner (normally it will be a purchaser of the land as unregistered land must be registered on any sale) takes free of the manorial rights unless they are the subject of a notice in the land register.  Often the manorial rights will be apparent from the title deeds and so the Land Registry will automatically enter such a notice when registering the land.  To ensure that a notice is entered – perhaps because the manorial rights may not be evident from the title deeds – the person with the benefit of the rights can lodge a “caution against first registration”, which is essentially a mechanism for that person to ensure that first registration does not take place without them being given an opportunity to seek entry of a notice.

13. If, on the other hand, the land concerned was registered land on that date (and most land is registered land) and is subsequently sold or mortgaged, the purchaser or mortgagee takes free of the rights unless they have been protected by a notice in the register of land at the time of the sale or mortgage.  If a notice has not been entered automatically by the Land Registry at the time of the first registration of the land (perhaps because the manorial rights were not apparent from the title deeds), the person with the benefit of the manorial rights could subsequently – and can still, if the rights have not been lost – apply for a notice (normally it will be a “unilateral notice”) to be entered in the register, to protect those rights in the event of a sale or mortgage of the land.

14. The Law Commission report referred to above explained the thinking behind manorial and similar rights losing their overriding interest status:

“It was clear from many of those who responded to the Consultative Document that they wished to see the abolition of a number of categories of overriding interests, given their troublesome nature. There was a strong feeling that, if it was not possible to do so immediately, we should at the very least consider the phasing out of these overriding interests over a period of years in the alternative. The reduction in the number of overriding interests would be a significant step towards a conveyancing environment in which title can be investigated on line with the minimum of additional inquiries.  …

“All are relics from past times and are of an unusual character.  Most of them can no longer be created. Those who have the benefit of such rights ought to be aware of them. These characteristics make them obvious and sensible candidates to be phased out. If such rights are to bind those who acquire registered land, they should be protected on the register.”[7]

COMMENTS

The recent incidence of manorial rights being exercised, and the impact upon landowners.

15. The Committee asked for evidence of the recent incidence of manorial rights being exercised and the impact of that exercise on landowners. The department is not able to provide any such evidence as it does not collect information regarding the exercise of manorial rights or their impact on landowners and has not received such information from third parties.

16. It may be that the nature of manorial rights itself minimises the likelihood their exercise will cause real problems to landowners. For example, in relation to mines and minerals the legal position is generally that the lord of the manor owns the minerals beneath the land, but the landowner’s permission is needed if the person owning the rights wants to dig them up. Planning permission and other relevant regulatory permissions would also have to be obtained.

17. In the absence of local custom the result is that the owner of the rights and landholder can each prevent the other from exploiting the minerals. Similarly, rights to markets and fairs confer an exclusive right to hold markets and fairs within the manor but do not generally permit the holding of a market on an individual property.

The arguments for and against the abolition of manorial rights.

18. The Committee asked for evidence relating to the arguments for and against the abolition of manorial rights.

19. The department’s view is that although manorial rights have a distinct historical root they are in essence no different from other rights to the same effect created by other means in or over land. The right to the mines and minerals in a piece of land can, for example, be separated from the ownership of the surface of the land on the sale of the land. The terms of the severance will be recorded in the conveyance or transfer of the land.  The resulting split in ownership produces a situation similar to that which exists in land where the mines and minerals were reserved to the lord of the manor in 1926, although the terms of the severance in this case will have been defined by the custom of the manor.

20. Although manorial rights might be assumed to be ‘relics of past times’, ownership of manorial rights is not restricted to people holding the title of lord of the manor.

21. Arguments for and against abolition of manorial rights as against abolition of all substantive rights of equivalent effect but not deriving from the preservation of rights in 1926 by the Law of Property Act 1922 would have to be based on their historical origins. It is in the department’s view hard to see how this could justify either retention or abolition.

22. Arguments for and against the substantive abolition of individual categories of manorial rights would have to be marshalled on a subject matter basis. It is unclear, however, that the subject matter of the preserved rights is of itself objectionable or, on the evidence available to the department, that there are any real problems being caused by the existence of those rights to the owners of land subject to them.

23. Some manorial rights will have economic, social or environmental value and there will be a realistic possibility that they might be exercised at some time. There may be other manorial rights that have no realistic possibility of being exercised. This may be due to changes in the nature of the land in question. Sporting rights over a field will, for example, cease to be of any foreseeable practical benefit if the field is developed and becomes a housing estate in the middle of a town. In these situations the existence of the rights is perhaps an unnecessary distraction for owners and buyers of land. In practice this seems likely to be a hard distinction to make as the rights exist in perpetuity and the use and character of land may change over time. Such an approach may therefore create unproductive disputes about the categorisation of the rights in question.

24. It might be argued that a manor is an archaic concept and that as a consequence manorial rights should be abolished. Proponents of this view might point to the statutory process adopted under the Law of Property Act 1922 for the extinguishment of “manorial incidents”[8] in return for compensation or in any event no later than 1936.[9] These manorial incidents were however in the main merely ancillary to the relationship of lord and tenant and involved only very small sums of money, while manorial rights amounted to substantive and potentially valuable rights in land. 

25. It might be wished that in 1926 some convenient name had been given to the manorial rights preserved that hid their historical roots, but this did not happen and a change in name alone now would do nothing to alter the substantive effect of manorial rights.

26. In summary, it seems to the department the principal argument for preservation of the rights is that they may be valuable and that they have existed legitimately for centuries without causing practical problems; and abolition would appear arbitrary. In addition, arbitrary abolition of a type of property right could undermine confidence in the security of other types of property right, which would be contrary to the interests of property owners and the wider economy.

27. The department has no plans to change the law relating to manorial rights.

The implications of abolishing manorial rights, including the cost of any appropriate compensation that may be required

28. The Committee asked for evidence relating to the implications of the abolition of manorial rights, including the cost of any appropriate compensation that might be required.

29. As mentioned above, the department has no plans to abolish manorial rights over land. However, if manorial rights or any of them were to be abolished the substance of the rights would in effect vest in the landowner.  This would amount to the forced transfer of property from one person to another.

30. Whatever approach was adopted to abolition, it would seem very likely to amount to a deprivation of property and to engage the right to the free enjoyment of possessions under the Human Rights Act 1998.[10] It is likely, therefore, that compensation would have to be paid to persons deprived of their rights. The amount of this compensation would depend upon the value of the rights abolished to the person thereby deprived of them. The department does not have any information as to the value of manorial rights.

31. Finally, if manorial rights were to be abolished, it would presumably be appropriate in due course to remove references to them from the land register.

Further comments

32. The Committee also invited comments on any aspect of the current laws and procedures in relation to manorial rights that may be of relevance to the Committee’s inquiry.

Effect of requirement of registration of notice of a claim to manorial rights

33. In the Committee’s call for evidence it stated that the changes made by the Land Registration Act 2002 to the status of manorial rights within the land registration system have led to large numbers of applications to enter a notice claiming manorial rights on properties in England and Wales being made to the Land Registry in recent years, and subsequent notifications of these applications being sent to landowners by the Land Registry.

34. The department is aware of concerns of home owners and others about the registration of notices in respect of manorial rights against their properties. The notices are intended to protect claims to existing rights. They have been registered – and will continue to be registered – to ensure that the rights can be enforced against purchasers of the land in question. The registration of a notice indicates a claim to a right over a property. The entry of a notice on the land register does not create a right.

35. The policy underlying the Land Registration Act 2002 is broadly to make the land register as complete a record as is practicable of the rights affecting a registered property. The more complete the register, the easier it will be for prospective purchasers to investigate the title to a property. Requiring the entry of a notice in respect of manorial rights claimed over the property to protect them against purchasers, as opposed to leaving manorial rights as overriding interests, prevents the risk that a property will be bought in ignorance of the fact that it is subject to manorial rights which will then bind that new owner.  This increased transparency should simplify the property buying process without altering the legal position of the registered proprietor at the time the notice is registered.

36. The department has consulted HM Land Registry, which is an agency of the Department for Business, Innovation and Skills, on this issue and hopes the following information, supplied by Land Registry, will be helpful to the Committee.

What is a notice and how can it be challenged?

37. Entry of a notice merely indicates that someone has made a claim to the ownership of the manorial rights over that title. Where a notice is registered on the land register in respect of a claim to manorial rights as a result of an application by the owner of the rights, it is normally a unilateral notice. The registered proprietor of the land subject to the notice may apply to Land Registry to have the entry removed from the register using form UN4. There is no time limit to make an application for cancellation. The applicant for cancellation does not have to lodge any evidence to support the application to cancel the notice and there is no fee.  Land Registry will inform the person who entered the notice of the application to cancel. If that person does not agree that the notice should be cancelled there will be a dispute between the parties. If they cannot resolve their dispute it may need to be resolved judicially. Land Registry has published Practice Guide 37 to help users: https://www.gov.uk/government/publications/objections-and-disputes-a-guide-to-land-registry-practice-and-procedures.

How many notices have been registered on the land register in respect of manorial rights?

38. Land Registry does not hold data for applications made for registration of a notice to protect a claim to the ownership of manorial rights before December 2012 but can confirm that as at the end of July 2014 just under 84,000 unilateral and agreed notices had been registered since December 2012. The applications were made by 142 applicants.  However, Land Registry has received around 6,000 applications by the person who entered the notice to withdraw their notice.  New applications affecting other properties may continue to be made for the foreseeable future.  

How many of these notices have been challenged?

39. Land Registry has received around 16,000 applications to cancel a notice.

How many of these challenges have been successful?

40. Land Registry does not hold this information. On the basis of anecdotal evidence Land Registry believes that approximately a third of the applications to cancel a unilateral notice result in the notice being removed. However, unless the claim to the rights has been disallowed by a court or tribunal or the claimant can otherwise be prevented from asserting the claim again, the person who claimed the benefit is not precluded from making a further application to enter a notice.

Are there any other properties on the register subject to manorial rights?

41. Land Registry states that unilateral and agreed notices account for only a proportion of the titles where there is an entry in respect of manorial rights. Land Registry makes an entry when the deeds lodged on first registration indicate that the property is subject to such rights. Its records indicate that there are just under 116,500 titles where such an entry has been made from the pre-registration title deeds. These properties appear to be subject to manorial rights. Land Registry will continue to make entries from the deeds as properties are registered for the first time and the deeds disclose that they are subject to such rights.  

42. Land Registry has also registered cautions against first registration indicating claims to own manorial rights over unregistered land. Land Registry does not know how many properties these may affect as it does not hold information about the extents of unregistered properties.

Other rights and liabilities preserved on the enfranchisement of copyhold land

43. In addition to the manorial rights, the Law of Property Act 1922 also provided that the enfranchisement of copyhold land was neither to deprive a tenant of any rights of common in respect of the enfranchised land nor to affect any liability of the lord or the tenant for works for the general protection or benefit of land in the manor or for abating nuisances therein (for example in relation to the maintenance of drainage systems and flood defences).[11]

44. The department does not know whether the Committee’s inquiry is intended to extend to these rights and liabilities, but in case it is, the department has consulted the Department for the Environment, Food and Rural Affairs (“Defra”) in relation to these matters. Defra has provided the following comments in relation to manorial rights of common.

45. Common land is land over which certain individuals have a right to take the profit from the soil. This encompasses pasture for animals, pannage (grazing of pigs in a forest), estovers (collecting firewood), turbary (digging of turf or peat), piscary (fishing in a lake, pond or stream), but there are others. Common land is one of England’s oldest institutions.  With origins that pre-date the Norman Conquest, most surviving commons are relics of the manorial system. The grazing of one’s cattle over someone else’s land was one of the first matters to be dealt with by common law. Usually the manorial land held in common was the ‘waste’, or the land which was of relatively little value to the manor. This land is referred to as manorial waste. The freehold in this land may still belong to the lord of the manor as a consequence of holding the title to the manor. The waste may now include verges to highways and common land.

46. Whilst now covering just 400,000 ha (or 3%) of England, commons may provide a more diverse range of public interests than any other comparable area.  Because of the unifying features of its history, legislation and management, common land needs to be considered as a single entity rather than disparate parcels of land.

47. Commons are precious reserves for biodiversity, recreation, agriculture and are a key feature of the English landscape and tradition. Eighty-eight per cent of common land is subject to statutory designations for nature conservation, landscape or ancient monuments, and half is designated as a site of special scientific interest.  Commons account for over 40% of both lowland and upland heath habitats. About three-quarters of common land is in England’s severely disadvantaged area, and so an integral part of the upland farming economy. 
48. The majority of rights of common are attached to a property (e.g. farm); the person who owns or occupies the property is entitled to exercise the right of common. The property to which the right is attached is known as the dominant tenement and the common land over which the right is exercisable is known as the servient tenement. When the dominant tenement is sold the right of common stays with the property and can be exercised by the new owner/occupier. A minority of rights of common are what is known as rights in gross, which are rights of common which were severed from the dominant tenement and instead became deeds which entitle the possessor to exercise the right. Rights of common exist in perpetuity; however they can be leased or licensed to another party for a period of up to two years.

49. The details of common land and rights of common over the land are recorded in the registers of common land. These were created under the Commons Registration Act 1965. The types of land eligible for registration as common land comprised (a) land subject to rights of common, and (b) waste land of a manor not subject to rights of common land. All commons and rights over the land had to be registered by 1970 or they lost their special status.

50. Registered rights of common are property and cannot be abolished without primary legislation. Compensation would need to be provided to owners of rights of common. Defra would not support such abolition given the importance of commons to the agricultural economy, particularly in the uplands, as well as the public benefits provided by commons. 

51. One of the issues that arise in relation to common land and manorial waste is whether vehicular access is permitted over the land. In some cases the only way for property owners to gain access to their homes is to use access routes crossing a common. It is, however, a criminal offence to drive on a common unless the landowner gives lawful authority. This led to a situation in the 1990s where commons were purchased to charge high fees to allow such access as it was at that time considered that rights of way could not be acquired over common land by prescription (that is informally by uncontested and open long user for a period of 20 years or more) where the act authorised would be a criminal offence. Section 68 of the Countryside and Rights of Way Act 2000 capped the payments for securing the grant of rights of way over common land from the owner of the common land. This was repealed on 1 October 2007 following a ruling by the House of Lords in the Bakewell case,[12] which held that easements over common land could be obtained through prescription and did not involve compensation to the landowner. Defra has published a non-statutory guidance note called Vehicular access across Common Land and Town or Village Greens.

52. Defra has also provided information in relation to the liabilities preserved in relation to watercourses and flood defence works. From the limited commentary available it appears the Crown is the most likely beneficiary of any such right which requires a landowner to maintain an embankment or sea or river wall that abuts their property. These are rare.

53. Owners of land adjoining, above or with a watercourse running through the land, are considered ‘riparian owners’. They have particular rights and responsibilities derived from case law, the main one being an obligation to keep watercourses clear of anything that could cause an obstruction, either on their own land or downstream if it is washed away. The non-statutory rights in respect of which there might be liability for embankments, rivers or sea walls may not be manorial rights.

54. The Environment Agency, local authorities and Internal Drainage Boards[13] have permissive powers to carry out maintenance works themselves. This means that there is no statutory duty on these bodies to carry out maintenance in any particular place or on any specific assets and they can decide when and where to carry out works.  

55. The Committee may be interested to know that the Environment Agency is looking at a number of potential locations where maintenance arrangements might change in the future, to give higher priority to locations and activities which achieve the maximum flood risk management benefit. The Environment Agency has drawn up a Maintenance Protocol in consultation with interested parties (including landowner and farming organisations, environmental and drainage bodies), that it will follow in the event of stopping or reducing maintenance activities at particular locations. This protocol commits the Agency to bringing together landowners and other affected parties to make sure that they are clear on their respective roles and responsibilities, and that they understand the range of options that may be available to them for future management of the assets and their likely costs, benefits and impacts.

September 2014