Enlargement of Long Terms

AuthorChristopher Jessel

Chapter 9

Enlargement of Long Terms*


This chapter examines the suggestion that positive covenants can be attached to freehold land by enlarging a long leasehold. The LPA 1925, s 153 (which re-enacted the Conveyancing and Law of Property Act 1881, s 65) broadly provides that if a term granted for not less than 300 years has a subsisting residue of not less than 200 years and if either there is no rent or it is nominal or a rent not exceeding £1 has not been collected for 20 years and if there is no proviso for re-entry, then a person beneficially entitled to possession in right of the term can execute a unilateral deed to enlarge the term into a fee simple. As long ago as 1911, a leading textbook considered it would be possible to use this ‘as a device whereby to annex to a fee simple certain covenants which would not “run with the land” at the common law’.1

Section 153(8) says:

The estate in fee simple so acquired by enlargement shall be subject to all the same trusts, powers, executory limitations over, rights, and equities, and to all the same covenants and provisions relating to user and enjoyment, and to all the same obligations of every kind, as the term would have been subject to if it had not been so enlarged.

In a consultation letter dated 14 May 2012 the Land Registry said ‘we are now seeing an increasing number of applications to register enlargements of recently granted registered leases where the landlord’s title is also registered’.2From

* This chapter is adapted from an article which first appeared in The Conveyancer and Property

Lawyer (2017) 81 Conv 132.

1HW Challis, The Law of Real Property chiefly in relation to conveyancing (Charles Sweet

Butterworth & Co, 3rd edn, 1911) at 335.

2Enlargement of leases – Land Registry Practice from 7 May 2013, Annex A.

106 Positive Covenants and Freehold Land

7 May 2013, when issuing a new freehold title to the enlarging lessee, they have adopted the practice of retaining the title of the former landlord on the register.3

The Law Commission invited comments on this in their 2016 Consultation Paper

Updating the Land Registration Act 2002.4

The Registry did not explain why the number of these applications was increasing but it seems likely that it relates to the use of this device. In the transaction, the buyer pays a premium equal to the purchase price and the seller grants an enlargeable lease. That could include covenants such as to repair a wall or roof for the benefit of adjoining premises also owned by the landlord. Shortly afterwards the buyer executes a deed of enlargement. The issue is whether a successor to the former landlord can enforce the covenant or whether successive owners of the new fee simple take free of it.

Although the benefit of some covenants can be assigned under the LPA 1925, s 136 and may pass under the Contracts (Rights of Third Parties) Act 1999 or under the LPA 1925, s 56, the burden of them will not pass to a successor of the covenantor unless the covenantee can invoke the special rules relating to land obligations. Those rules require that such a covenant must benefit an estate in land and the best evidence of that is a registered title. Where s 153 is invoked it is suggested this can be done either by regarding the former landlord as having a superior right analogous to a reversion and invoking the rules relating to privity of estate, or as having a concurrent estate with rights analogous to the benefit of a restrictive covenant.


Section 153(8) says the enlarged fee simple shall be ‘subject to’ various rights. The new fee simple will be held on the same trusts as the lease had been and subsisting rights of third parties such as easements and restrictive covenants binding the freehold of the former landlord will continue to affect the land. It does not necessarily follow that positive leasehold covenants between the former landlord and tenant will be preserved. If they are, the subsection does not say who can enforce them nor does it say that the owner for the time being of the enlarged fee simple is bound to perform them. The expression ‘subject to’ is suitable for a passive incumbrance but not for an obligation to do works.

If the wording is wide enough to cover covenants in the former lease, there is ambiguity as to which are preserved. The subsection distinguishes between two

3Land Registry, Practice Guide 26: Leases – determination (updated 19 November 2018) at para 12.

4(Law Com 227) (2016) at para 3.14. The final Report (Law Com 380) (2018) at para 3.186 made no recommendations.

types of burden. One is covenants and provisions relating to user and enjoyment. Such covenants would normally be restrictive in substance. The other is obligations of every kind. The two are mentioned separately and, under the principle of statutory interpretation that expressing one thing excludes another,5


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