Registration of fishing rights

Transcription

1 Registration of fishing rights Fact sheet 7

2 Registration of fishing rights Since 2003 it has been possible to register fishing rights separately from ownership of the land to which they are connected. This means that fishing rights owned outright, or by a lease of more than seven years, can now be registered at the Land Registry and give you a guaranteed title. 1. What fishing rights can be registered? The general rule is that a person who owns land abutting a river or lake is presumed to own one-half of the bed of that river or lake (or the whole of the bed if land on both or all sides is owned). This is a rebuttable presumption meaning that evidence may be produced to show that historically the adjacent land and the river bed are in fact in different ownerships. With this ownership, whether based on title documents or the rebuttable presumption, comes what are known as riparian rights. Among these is the right of fishing. Where the owner of the fishing rights and the adjacent land are the same the issue of registration does not arise as the right of fishing is incidental to the ownership of the land. However it is possible to separate or sever the fishing rights from the ownership of the land. This severing can be done in different ways. First it can be a disposition of the bed of the river and with it the right of fishing. Secondly it might be a grant of a several fishery. Typically in this instance words such as all that sole, exclusive and several fishery and in the land over which the river runs will be used in the title deeds granting the right. Thirdly it is possible to grant the fishing rights alone. In this case typical wording may be all that profit a prendre of fishing rights over the River Whatever the type of grant, it may be an outright sale of the interest in perpetuity or a lease for a term of years. 2. What can be registered? Where the grant is of the bed of the river then (unless it is already registered) it will be possible to register the disposition as a first registration of land. Once the land is registered then the right of fishing and other riparian rights will automatically benefit the land as explained above and these rights do not require separate registration. Where the disposition is of a several fishery there is a presumption (that can be rebutted) that the grant also vests the bed of the river in the person to whom the grant is made (the grantee). Therefore in principle where there is a several fishery an application can be made to register the land comprising the bed of the relevant part of the river. Again registration of the bed brings with it the fishing rights and the fishing rights do not need separate registration. In practice however it is not always easy to persuade the Land Registry to register the owner of a several fishery as owner of the bed. The reason for this is that ownership of the bed of the river, as explained above, generally depends on the riparian presumption and the Land Registry argue that this does not provide good title to the bed as it is rebuttable and therefore does not vest good title in the bed in the owner of the several fishery. However if the Land Registry cannot be persuaded to register the several fishery owner as proprietor then they can still be registered as owner of the fishing rights. Fact Sheet No.7 1

3 Where the grant is of a profit a prendre of fishing rights then, since October 2003, this can be registered as a separate interest of land and given a separate title number. This applies to an outright grant of fishing rights in perpetuity and in relation to a lease of fishing rights for a term of seven years or more. As with land generally there are different classes of title that can be given. If the fishing rights are owned then title can be absolute or qualified. Generally absolute title will be given where an unregistered root of title can be provided to prove ownership of the land by the person granting the fishing rights. Qualified title will be given where there is some defect in the title for example some of the unregistered deeds have been lost. If the fishing rights are comprised in a lease of seven years or more then the classes of title are absolute, leasehold, good leasehold or qualified. 3. What is the procedure for registration? In order to register fishing rights it is necessary to submit an application in Land Registry form FR1 and submit documents to prove the title to the rights. This means that the document that created the fishing rights must be produced. Where the rights have been transferred since the original grant then all documents showing the transfer from the original grantee to the person applying for registration will be required. Where the original grant was out of unregistered land then it is also necessary to provide what is known as a root of title. This means that the original grantor has to demonstrate that they own the land out of which the fishing rights were granted. A root of title of at least 15 years is required meaning that a chain of documents needs to be provided showing ownership down to the grantor of the land over which the rights were granted. A plan has to be produced showing the extent of the fishing rights with reasonable accuracy. A fee is payable of 50. Were the land is registered this second step is not required as the grantor s title is registered and that will be sufficient evidence of the grantor s title. A land charges search and a commons registration search are also necessary. 4. Who will be given notice of the application? The Land Registry will give notice to the owner of a registered estate over whose land the rights are granted and likewise of an unregistered estate where the identity of that owner is known. This gives that owner the chance to object if there is any basis for doing so. However if there is a good root of title to the fishing rights it ought not to be a problem. Sometimes the Land Registry will serve notice on statutory authorities such as the Environment Agency and the Canal and River Trust where they believe that the rights may impinge on those authorities rights of ownership or statutory powers. Fact Sheet No.7 2

4 5. How do the rights get noted on the landowner s title? Where fishing rights are registered as a new title and the land over which the rights are exercised is already registered then a note of the registered rights will be made against the landowner s title. Sometimes in practice rights will be noted against the landowner s title if the deed granting the rights was lodged on first registration of the land. That is a note of the unregistered rights will appear. 6. What happens if there is an objection to an application for first registration? As noted above the Land Registry will serve notice on parties who may be affected by first registration. Those parties can make an objection within a specified period. This may for example relate to the extent of the rights or possibly where the landowner was unaware of the existence of the rights. The Land Registry gives the parties the opportunity to resolve their differences but if they cannot then the dispute is referred to the Land Registry division of the Property Chamber First Tier Tribunal (what used to be known as the Adjudicator). Proceedings in the Tribunal follow a similar course to any civil proceedings. Costs are generally payable by the loser to the winner. 7. Can I register rights where there are no title documents? It is possible to acquire a profit a prendre by long usage that will potentially give a better title than the landowner. In order to claim title based on long use it is necessary to show continuous use of the rights for a period of in excess of twenty years without force, secrecy or permission. Importantly such rights will be personal to the party making the application. This is to be distinguished from an application to register an easement based on long usage; for example a right of way over another person s land. In that case the right will benefit the land of the person claiming the right rather than an individual. This means that it does not matter who owns the land in question. All that is needed is to show that the right has been continuously exercised. In contrast a profit a prendre does not benefit any land but only the individual who has exercised the rights. In practice this means that only a person who has exercised the rights can apply for registration. Therefore a succession of people who have fished the waters consecutively cannot add those periods of fishing together to reach the requisite twenty year period. In practice therefore applications based on prescription will be rare. Where evidence does exist an application should be accompanies by a Land Registry Form ST1. This form requires certain prescribed information and a statement setting out the basis on which it is said that the rights have been exercised for the requisite period. Land Registry Practice Guide 16 sets out the information required in greater detail. Fact Sheet No.7 3

5 8. What happens if I don t register? The answer to this question depends on when the rights were created. As a preliminary it is necessary to explain the principle of overriding interests. Overriding interests were first created and defined in the Land Registration Act 1925 and have remained an important feature of land registration ever sine. The purpose of land registration is to provide a guaranteed title to the owners of the land in question. It has always been the case however that there were a range of interests in land that bind the owner of that land but were not capable of registration themselves. Examples of these are short leases of the land or local land charges. These are known as overriding interests because they override registration and therefore are legally binding even though they do not appear on the register. As a general principle the government is keen to reduce the number of overriding interests. Therefore one of the objectives of the Land Registration Act 2002 was to reduce the number of overriding interests and increase the range of interests that affect the land which appear on the registered title to the land. Prior to October 2003 when the relevant provisions of the Land Registration Act came into effect, profits a prendre were not capable of registration. This meant that fishing rights could at best be registered against the title of land over which they were exercised but could not be registered with their own title. However they were within the class of interests that were overriding interests. As such they bind the owner of the land over which they were exercised even though they did not appear on the landowner s title. Since October 2003 profit a prendres can be registered with a separate title number however registration is voluntary meaning that they do not have to be registered. An unregistered profit a prendre will still be an overriding interest however there have been important changes to the status of these overriding interests. First it is provided that where a profit a prendre is created after October 2003 it will not have legal effect in relation to the landowner unless it is registered. This means that whilst as a matter of contract the grant will bind the original grantor and the grantees, it will not bind a successor in title of the person granting the rights. In short it is essential that any grant of fishing rights either in perpetuity or for a lease longer than 7 years is registered con completion. The position in respect of profits a prendre granted before October 2003 has also changed. Prior to October 2006 profits a prendre were protected as overriding interests automatically meaning that when the land over which the rights were exercised was sold that land would continue to be subject to the profit a prendre although the profit had not been registered. Fact Sheet No.7 4

6 Since October 2006 however the position has changed. From that date an unregistered profit will only override a disposition of registered land if certain conditions are met. These are that the profit a prendre of fishing rights:- (i) (ii) are obvious on a reasonable inspection of the land; are known to the person to whom the disposition of the land over which the rights are exercised is being made; (iii) have been exercised within the year before the disposition. The effect of this is that if you own fishing rights that are not registered there is a real risk that those rights could be lost if there is a subsequent sale of the land over which the rights were granted if the above conditions are not met. Conclusion It will be apparent from the above that the law relating to fishing rights is not straight forward and there are significant potential pitfalls if fishing rights have not been registered. Registration of fishing rights provides a guaranteed title and is strongly recommended. Please note that this fact sheet is intended to give general guidance on the stated area of law We cannot accept any responsibility for the consequences of relying on this fact sheet in relation to particular circumstances of which we are not aware. Should you require more information on any issues raised in this fact sheet or require advice on a specific issue please contact: Harrison Clark Rickerbys inc Simon Jackson Wye Valley Oswestry Hereford Overross House Ross Park, Ross-on-Wye HR9 7US The Office Tyn Celyn Llansilin Oswestry SY10 7JW Thorpe House 29 Broad Street Hereford HR4 9AR Call Esther Stirling: Harrison Clark Rickerbys inc Simon Jackson is a trading name of Harrison Clark Rickerbys Limited SJK Fact Sheet No.7 5