Holaw (470) Ltd v Stockton Estates Ltd (2001) 81 P. & C.R. 29
REGISTERED LAND – LEASEHOLDS – OVERRIDING INTERESTS- LAND REGISTRATION ACT 1925 (LRA) – RECTIFICATION – RIGHTS OF WAY
Facts
Two neighbouring properties (A and P) were originally in the common ownership of CIS, with each property being let to a different tenant. The lease of P included a right of way over A. CIS later sold A without reserving a right of way for the benefit of P; it then sold P itself. The lease of P expired and was renewed. The question was whether the new lease could include the right of way over A.
Issues
Whether a right to rectify the register could take effect as an overriding interest within the meaning of s.70(1) LRA 1925; whether an easement could be impliedly reserved where not strictly necessary; whether, in principle, the use of a right of way could suffice to establish actual occupation under s.70(1)(g).
Decision/Outcome
In dismissing the application for rectification, Neuberger J held that H had no basis for a claim of rectification against S; the 1989 transfer had reserved no rights in favour of A and, in the absence of necessity, the fact that CIS’s tenant had been using the right of way was an insufficient basis upon which to justify an implied reservation of the right of way.
Moreover, the use of a right of way could not amount to actual occupation of A for the purpose of s.70(1)(g), even though a right to rectify could, in principle, take effect as an overriding interest under that provision.
Updated 21 March 2026
This article accurately summarises the decision in Holaw (470) Ltd v Stockton Estates Ltd (2001) 81 P. & C.R. 29 as it stands. Readers should however be aware of an important legislative development: the Land Registration Act 1925, including s.70(1) and s.70(1)(g) discussed in the case, has been repealed and replaced by the Land Registration Act 2002. The 2002 Act substantially reformed the law on overriding interests. The concept of actual occupation as an overriding interest is now governed by Schedule 3, paragraph 2 of the 2002 Act, which introduces qualifications not present under the 1925 Act (for example, the interest will not override where the occupation would not have been obvious on a reasonably careful inspection and the buyer had no actual knowledge of it). The principle established in this case — that the mere use of a right of way is insufficient to constitute actual occupation — remains consistent with the approach under the 2002 Act, but any analysis of overriding interests in current practice must be conducted by reference to the 2002 Act rather than the 1925 Act. The article is therefore historically accurate but should be read alongside the 2002 Act if applying the principles to modern registered land problems.
