Wednesday, 29 August 2018


For most people, their housing worries and concerns focus on whether they can save enough to get on the property ladder or earn enough to pay the rent or the mortgage, or finance necessary repairs and maintenance.
Over the last couple of years, there have been some shock-horror stories about the nature of new leasehold properties, especially houses, where the leases contained provisions for ground-rents to double every decade. Either the conveyancing solicitors didn’t do their jobs or new home owners were too starry-eyed to take notice of the real financial implications to halt the purchase process. The government may stop new leaseholds with such onerous terms but, with the exception of exhortation to the developers to reimburse the purchasers – which most will not do because they’ve already sold the freeholds, booked the super-profits and distributed them to shareholders – the government still doesn’t know what to do with existing leaseholders whose homes are devaluing by the minute or unable to be sold, except at a big loss.
The appalling fire at Grenfell Tower has shone a huge spotlight on the complexities of who pays the bill, and when, for removing and replacing the cladding on multi-storey buildings and for paying for 24/7 on-site fire wardens until the work is complete. Obviously, the responsibilities will vary from building to building, dependent on the facts of the situation. But, it is already clear that there are some leaseholders who are stuck in their flats until the situation is resolved and others who potentially face bills significantly higher that the value of their homes.
I well remember how I learned for the first time about some of the complexities of UK property law when Right-to-Buy council tenancies were introduced. Just try getting your head around the concept and reality of ‘flying freeholds’ – where one freehold underlies or overhangs another freehold. At a simple level, they are quite common in our area – for example, where a ground-floor shared passage to the front and rear doors of terraced homes has the bedroom area for both properties on the first-floor. Of course, they become much more complex with properties which were built with no thought ever being given to splitting the ownership rights – for example, flats above shops above underground car-parking areas.
It was at about the same time that I learned about some of the legal and financial challenges to repairing and improving nineteenth century private homes which had been built on Sheffield’s hills. Houses were beginning to crumble, but so too were huge retaining walls. Too often the obligation to repair and maintain the walls rested with impecunious home-owners and the remediations costs would be many times the value of the property, but failure to maintain threatened the very existence of other homes and they, in turn, also became un-mortgageable, un-insurable and un-saleable. It often took considerable investment - of professional expertise, creativity and commitment, as well as cash - by the local authority, to find solutions to these problems.
When I was grappling with the demise of the South Yorkshire County Council, I learned about the importance of the mining archives in relation to negotiations about financial responsibilities for dealing with subsidence and settlement affecting many thousands of homes which had arisen from (particularly) coal-mining, perhaps more than a century ago.
But all these complex property issues can pale in to insignificance when you start asking questions about what your home-ownership rights might actually mean. For instance, have you ever asked yourself how far beneath the surface of your home and garden do you own? Is it to the centre of the earth? Do you own the gas in the rock a hundred metres below your house – particularly relevant as the Conservative government is pushing ahead with fracking in a quite reckless fashion? Could the National Grid erect a huge electricity cable a hundred metres above your house without your permission? They’re all good questions which, being well above my expertise-grade, I have no intention of trying to answer here.
This is all just a foreword to the latest position on addressing ‘manorial rights’ in English law. Fortunately, this will not affect most of us. However, these things have a tendency to rise up and bite us when we are not looking or expecting them.
At its simplest, much of our property law originated in Norman times. There was a feudal and medieval system of tenure. Basically, the Lords of the Manor owned the land and they decided who could do what and when with it. Some of these rights - including the rights to mine, extract minerals, hunt and fish - were very valuable. Together with other things, these were called ‘manorial rights’.
When landowners sold land, they often did so whilst retaining rights to the land below the surface and even rights to particular activities (for example, fishing) on the surface.
At the same time, there were sometimes obligations passed from the Lord of the Manor to new freeholders or leaseholders. Some residents of village cottages have been shocked to discover that they are affected by corresponding ‘chancel repair’ obligations and are legally required to pay their share of repairing the tower of the local church!
Manorial rights were specifically preserved when most remnants of the manorial system were abolished in 1926. These manorial rights over-rode other rights on property held by the Land Registry.
In an attempt to stop ancient manorial rights suddenly being brought forward to create chaos in land transactions, there was all-party support for the 2002 Land Registration Act. This required landowners to register their manorial rights by 13 October 2013 or lose them forever. In consequence, 73,000 applications were made claiming specific manorial rights on properties in England and Wales.
Many of these were known to relevant home-owners or businesses, but others were shocked to learn about the rights that others held over their land and about obligations they might owe to others in certain circumstances. Unsurprisingly, those affected made quite a fuss although it also has to be said that much of the fuss seemed to have come from solicitors who didn’t understand the law or its real implications.
Why not just abolish these manorial rights, many asked? Well, there’s no difference between manorial rights and other property rights; removal would require compensation to be paid. In this case, abolition would transfer an asset from one property owner (the claimant to the manorial rights) to another (the landowner). Thus, any attempt at abolition would almost certainly result in a legal challenge under Article 1 of the European Convention on Human Rights (ECHR), related to deprivation of possessions and property.
As a result of the large number of representations made about the Act, the all-party Justice Committee investigated and reported in January 2015. As well as examining arguments for and against the abolition of the protection of manorial rights in law, it recommended changes for more efficient operation of the Act.
Last month, the Law Commission published a report on updating the Act to make further improvements. Their recommendations were particularly targeted at sorting out rights and obligations claimed by ‘manorial rights’ owners who appeared to be trying it on and whose claims wouldn’t succeed but, in the meantime, were adding complications and costs to property transactions.
The excellent House of Commons Library has now published a summary on the Registration of Memorial Rights at
If you are interested in these things, or have trouble getting to sleep, it’s a great read!