How to read a title register: covenants, easements and rights of way

01 What the register is, and what it is not

A registered title is a short document, often two or three pages, produced by HM Land Registry and divided into three registers: property, proprietorship and charges. Alongside it sits the title plan, showing the extent of the registered land edged in red. Together they are close to conclusive on ownership, which is exactly why they get skimmed. The register is a summary of a much larger paper history, and almost every entry that matters is a pointer to a deed rather than the deed itself.

Two limits are worth stating at the outset. The title plan is drawn to the general boundaries rule: it shows approximately where a boundary lies and deliberately does not fix its exact line, so it cannot resolve whether a yard, a fence or the corner of a building falls inside or outside the title. And the register is not a complete list of everything that binds the land, because a category of rights known as overriding interests binds a buyer without ever being registered.

On an industrial or logistics acquisition, read the title early rather than late. Planning problems can usually be solved with time and money; a title problem can make the scheme impossible at any price.

02 The property register: extent, tenure and the rights that come with the land

The property register says what the land is. It gives the tenure, freehold or leasehold, describes the property by address and title plan reference, and lists the rights that benefit the land: rights of way over adjoining land, rights to run and maintain services, rights of drainage.

The first thing to establish is whether the site is one title or several. Industrial sites are routinely assembled over decades and it is common to find a yard, an access strip and a building in three separate titles, sometimes with different tenure and different burdens. If any part of the land you are bidding for is not in a title the seller owns, that is the finding, and it is easier to make at this stage than after exchange.

The second is access. A site that does not physically adjoin an adopted highway depends on a right of way granted in a deed, and that right has a scope: it may be limited to certain purposes, to agricultural use, to a stated number of vehicles, or it may say nothing about vehicle size at all. A right of way granted in 1958 for access to a workshop may not carry articulated deliveries at logistics frequencies without an argument. Where the access strip is in third party ownership, you are looking at a potential ransom position, and that belongs in the bid rather than in the report.

Where the title is leasehold, the register identifies the lease, and from that point the lease is the document that governs the site: term, rent review, alienation, alterations, user and repairing obligations. A long leasehold interest is not a freehold with a date on it.

03 The proprietorship register: who owns it, and what they can promise

The proprietorship register names the registered proprietor and states the class of title. Title absolute is the strongest and the norm. Possessory title is granted where deeds were lost or where the claim rests on possession rather than paper; qualified title where a specific defect in the history is excepted; and, on leaseholds, good leasehold, where the lease itself is proved but the freehold title behind it is not. Each of the three leaves a gap that has to be covered by insurance or by an application to upgrade, and good leasehold in particular is common enough on industrial leasehold stock to check for rather than assume away.

This register also carries restrictions: entries preventing a disposition from being registered unless something is done first, such as a certificate from a lender, the consent of a third party or compliance with the requirements of a trust or a company charge. A restriction is a procedural gate on completion rather than a burden on the land, but a restriction nobody noticed until the day of completion is a delayed deal, so read them for what each one requires and who has to give it.

The price paid entry, where present, records what the proprietor paid and when. It is not a valuation, but it is a fact to have in hand when the negotiation starts.

04 The charges register: covenants, easements, agreements and security

The charges register carries the burdens, and it is where the pre-bid work concentrates. Expect to find four kinds of entry.

Restrictive covenants limit what can be done with the land: a restriction on building height or footprint, a prohibition on a class of use, a requirement to obtain someone's consent to any development. The entry will usually recite a deed by date and parties and say the land is subject to the covenants contained in it. That is a reference, not the covenant, and the wording in the deed is what governs. On older titles the deed may not have been retained, which is a finding rather than a formality.

Easements and other third party rights burden the land: a neighbour's right of way across the yard, a right to run and maintain a sewer or a cable, a right of light. These constrain where you can build in a way that no planning document will show you. A drainage easement running diagonally across the only developable part of a site is a layout problem discovered too late if it is discovered after exchange.

Agreements with public bodies also land here: highways agreements, and agreements with drainage or environmental bodies. Section 106 planning obligations work slightly differently. A section 106 is a local land charge, so it shows on a local search and binds successors in title whether or not it ever reaches HM Land Registry; it is also frequently noted on the charges register, but that is practice rather than the mechanism. Either way it follows the site to you, and reading it against the planning consent is part of the same job.

Charges, meaning mortgages and legal charges, appear here too. They are normally discharged on completion, but they tell you something about the seller's position and occasionally about how quickly they need to transact.

For each entry, the useful pre-bid questions are the same three. What does it actually say, in the deed rather than the register. Does it conflict with the scheme being underwritten. And if it does, who has the benefit, and can they be dealt with.

05 Living with a restrictive covenant: release, tribunal or insurance

Restrictive covenants are the entries most often waved away, so take them seriously. Where a restrictive covenant was validly created and properly protected, its burden runs with the land, which means it binds you as a successor in the same way it bound the seller. It does not expire with time, and the fact that nobody has enforced it for fifty years does not release it, though it may be evidence that supports a case for modification.

A positive covenant, one that requires money or work rather than forbidding something, behaves differently: on freehold land its burden does not bind a successor directly, though on leasehold land positive covenants do bind an assignee. In practice a freehold obligation is passed down a chain of indemnity covenants, secured by an estate rentcharge, or enforced through the benefit and burden principle, under which someone taking the benefit of a right has to accept the burden that goes with it. That last route is the one that most often catches a buyer on an industrial estate, because the right to use the estate road comes with the obligation to pay for it.

Where a covenant does conflict with the scheme, there are three routes. A negotiated release or variation from whoever holds the benefit is the cleanest and often the most expensive, because the price reflects what the covenant is blocking. An application to the Upper Tribunal to discharge or modify the covenant is the formal route, available on statutory grounds such as that the covenant has become obsolete, or that it impedes a reasonable use of the land without securing practical benefits of substantial value or advantage to the person with the benefit, usually against compensation. It is slow enough that it belongs in a business plan rather than a bid timetable. Indemnity insurance does not remove the covenant, it covers the loss if it is enforced, and it is the route that most often fits a deal timetable.

One sequencing point matters before anyone picks up the phone: insurers will generally not write a policy once a beneficiary has been approached, because the approach itself puts the risk in play. Deciding which route you are taking is therefore a decision to make before the approach, not after.

06 What is not on the register

Even so, a defined set of overriding interests under the Land Registration Act 2002 binds a buyer without ever appearing on the register. The categories that matter commercially are leases granted for seven years or less, the rights of people in actual occupation, certain legal easements and public rights, and local land charges. The occupation category is itself qualified: the occupation has to be obvious on a reasonably careful inspection or actually known to the buyer, and the right is lost if enquiry was made of the occupier and it was not disclosed when it reasonably could have been. A tenant under a short lease, an occupier whose long use may have generated a prescriptive right or an estoppel claim, a track the public has used for years, a service run installed under a right nobody registered: none of these will show in the charges register, and all of them can bind you.

The consequence for diligence is that a title review is documentary and physical. What the site shows on the ground, who is on it and under what arrangement, and what crosses it below ground are questions for inspection, occupier enquiries and searches, not for the register.

Two more off-register points come up often enough on industrial land to set out here. Mines and minerals are frequently excepted from a title, which can matter where deep foundations or piling are proposed. And some land in England remains unregistered, where ownership is proved by a bundle of deeds rather than a register, and the burdens have to be traced through them; unregistered land in a data room means a longer legal review, and it should be built into the bid programme rather than discovered in it.

07 Red flags to catch before you bid

Some findings should change the number rather than the notes. Part of the marketed site sitting outside the seller's titles is the first thing to rule out, and the one most often assumed. No direct frontage to an adopted highway, or an access dependent on a right whose scope does not obviously cover your intended traffic, is a scheme risk rather than a legal detail.

Then the burdens. A covenant restricting use or development that conflicts with the scheme, especially one requiring a named party's consent, needs a route and a price before the bid, not after. A covenant whose deed cannot be produced leaves an unquantified restriction on the title. An easement crossing the developable area is a layout constraint, and the right to enter and maintain that goes with it can outlast the works. Possessory or qualified title, or a restriction on the proprietorship register requiring a third party's consent, is a completion risk. And a section 106 registered against the title whose obligations have not been discharged is a cost that arrives with the keys.

None of these is automatically fatal. The job before a bid is to price each one, or to make the offer conditional on it being resolved, and to have found it in the title rather than in a solicitor's report three weeks after exchange.

08 Frequently asked questions

What is the difference between the title register and the title plan?

The register is the written record: what the land is, who owns it, and what burdens and benefits attach to it. The plan is the map that shows the extent of the registered land, edged in red. The plan is prepared to the general boundaries rule, which means it shows roughly where a boundary runs but does not fix its exact line, so it cannot settle a boundary dispute or confirm to the centimetre that a yard, a fence or a building sits inside the title. On an industrial site where the developable area is the whole commercial case, the plan is a starting point to be checked against a measured survey and the deeds, not an answer.

How do I find out if a property has a restrictive covenant?

Restrictive covenants on registered land appear in the charges register of the title, usually as a short entry referring to a deed by date and parties. The entry is frequently not the covenant itself: the wording sits in the deed, which is held as a filed copy or, on older titles, may not have been retained at all. So finding the entry is only the first step, and reading the actual wording is the step that matters. If the covenant cannot be produced, that is itself a finding, because a covenant nobody can read is one nobody can price.

Do restrictive covenants transfer to new owners?

Yes, and that is the point of them. A restrictive covenant is a burden on the land rather than a personal promise by the seller, so where it was validly created and properly protected it binds whoever owns the land next, including you. The benefit runs too, to whoever owns the land the covenant was given for. Buying the site does not reset the position, and neither does a long period in which nobody enforced it.

How long are restrictive covenants enforceable for?

There is no expiry date. A covenant created in the nineteenth century can still bite today, and age alone is not a defence. What age does affect is whether anyone can still enforce it: over time the land that had the benefit may have been sold off, redeveloped or built over, and the covenant may have become obsolete in the sense that it no longer serves the purpose it was created for. That is an argument for discharge or modification, not an automatic release, and it has to be made rather than assumed.

What makes a restrictive covenant unenforceable?

Usually one of three things. Nobody with the benefit can be identified, because the land the covenant was made for cannot be traced or no longer exists in a form that benefits. The covenant does not touch and concern that land, so it never ran with it. Or, on unregistered land, it was not properly protected against a purchaser. A covenant may also be unenforceable in practice because the character of the neighbourhood has changed so completely that a court or tribunal would not uphold it. None of these is safe to conclude from the register alone, which is why the answer on a bid is normally either legal advice, a release, or insurance.

What is the difference between a restrictive and a positive covenant?

A restrictive covenant stops you doing something: no building above a stated height, no use other than a named one, no development without the consent of a named party. A positive covenant makes you do something: maintain an estate road, contribute to the upkeep of a shared drain, keep a fence in repair. The distinction matters because the burden of a restrictive covenant runs with the land wherever it was validly created and properly protected, while on freehold land the burden of a positive one does not bind a successor directly. Positive obligations are instead passed on by other means: a chain of indemnity covenants, an estate rentcharge, or the benefit and burden principle, under which someone taking the benefit of a right has to accept the burden attached to it. So on an industrial estate you can find yourself exposed to a maintenance liability that the register describes only obliquely. On leasehold land the position is different again, because there positive covenants do bind an assignee.

Can you sell a property with a restrictive covenant?

Yes, and most commercial land carries some. A covenant is not a defect in the title, it is a limit on what the land can be used for, and the question for a buyer is only whether that limit is compatible with the scheme being underwritten. A covenant restricting use to light industry on a site being bought for large scale distribution is a valuation issue and possibly a deal breaker. The same covenant on a site being bought for its existing income may be irrelevant. Read the covenant against the intended use, not against the site in the abstract.

How do you remove a restrictive covenant from a title?

There are three routes and they are not equivalent. The cleanest is a negotiated release or variation from whoever has the benefit, which requires identifying that person and paying whatever they ask, and the price tends to reflect the value the covenant is blocking. The formal route is an application to the Upper Tribunal to discharge or modify the covenant on statutory grounds, such as that it is obsolete or that it impedes a reasonable use of the land without securing practical benefits of substantial value or advantage to the person with the benefit, usually against compensation. The commercial route is indemnity insurance, which does not remove the covenant but covers the loss if it is enforced. Insurance is usually only available while nobody has been approached, so approaching a beneficiary first can close off the cheaper option.

How much does it cost to deal with a restrictive covenant?

It depends entirely on which route you take and on what the covenant is blocking. Indemnity insurance is generally the cheapest and fastest, priced against the value at risk, and it can often be arranged within a bid timetable. A negotiated release is a commercial deal with no ceiling, and a beneficiary who understands what the covenant is holding up will price accordingly. A tribunal application is the slowest and involves professional costs on both sides with no guarantee of the outcome, which usually puts it beyond a bid window and into the business plan. For pricing a bid, the useful question is which of the three routes is realistically open, because that decides whether the covenant is a line in the appraisal or a condition of the offer.

What is an overriding interest, and why does it matter to a buyer?

An overriding interest is a right that binds a buyer even though it appears nowhere on the register. The categories are set by the Land Registration Act 2002 and include leases granted for seven years or less, the rights of people in actual occupation of the land, certain legal easements and public rights, and local land charges. The occupation category is qualified: the occupation must be obvious on a reasonably careful inspection or actually known to the buyer, and the right is lost if enquiry was made of the occupier and it was not disclosed when it reasonably could have been. They matter because the register is otherwise close to conclusive, so these are the burdens a purely documentary review will miss. On an industrial site the practical checks are an inspection of what is physically happening on the ground, occupier and licence enquiries, and questions about tracks, pipes and cables crossing the site, since a well used route or a long standing service run can carry a right nobody has ever registered.