What is an Encumbrance?
The Land Act 2020(Act 1036) requires certain rights and claims on land to be registered as encumbrances on the land. An encumbrance on a land is a right to or interest by one person over another person’s land . An encumbrance does not prohibit the passing of title of the land but may diminish its value. They are therefore burdening on land
Sections 157, 158 and 159 of the Land Act 2020 (Act 1036) makes provision for the registration of an Easement, Restrictive Covenant and Profit. These are encumbrances which will be discussed below.
Section 157 (1) provides that:
A grant or reservation of an easement created by an instrument is of no effect unless the grant or reservation is registered as an encumbrance relating to the land burdened by the easement …
An easement under S 281 of Act 1036 is defined as:
A right under the rules of common law attached to land which allows the proprietor of the land to which the right is attached to use another land in a particular manner or to restrict the use of the land to a particular extent but does not include any right capable of existing as a profit or restrictive covenant.
The land for the benefit of which the right is created is called the dominant land and the land which carries the burden over which the right is exercisable is called the servient land.
This means that for there to be an easement, there has be two separate adjoining or neighbouring pieces of land; with one being burdened whilst the other land enjoys the benefit.
An easement may be positive such as in the grant of a right of way to the dominant land owner or negative such as a restriction being placed on the servient land owner on how he should construct his building for the benefit of the dominant land to for instance for access to sunlight by the dominant land owner.
An easement is acquired though either an express or implied grant or reservation at common law and is enforceable against anyone who takes possession of or occupies the servient land.
An express reservation occurs when a grantor(person who makes a grant ) reserves to himself an easement over land which he disposes of.
An implied grant occurs for instance when a grant of land is made by a grantor to a grantee(person to whom a grant is made) and the grantee of the land cannot access his land except by going over the land of the grantor or another adjoining land. In this sense the grantee has an implied right to go through or over the grantor’s land to access his land.
Similarly, an implied reservation occurs where a grantor grants land to a grantee in such circumstances where he cannot access the portion, he has retained except by going on the land of the grantee.
Another type of easement is acquired by prescription. This is the situation where a dominant land owner exercises a right over a servient land and has enjoyed the right for a considerable and continuous period as if he were entitled to that right and the dominant land owner has acquiesced to that use.
Prescription in this sense means the right was acquired not by express grant but by acquiescence of the servient owner to the dominant user over a period of at least twenty years.
S.157(2) provides that:
The instrument creating the easement shall clearly specify:
- The nature of the easement, the period for which the easement is created and the conditions, limitations or restrictions intended to affect the enjoyment of the easement.
- The land burdened by the easement and the particular part of that land which is burdened.
- The land which enjoys the benefit of the burden.
Restrictive covenants are agreements which restrict the use of land. They impose obligations on land for the benefit of another and may be enforced against any occupier of the land.
A restrictive covenant must be made for the benefit of the land retained by the covenantee( person to whom a covenant/promise is made and who benefits from the covenant) . In this regard, the purchaser of a land with notice of a restrictive covenant affecting it would be restrained from using the land in a way inconsistent with the covenant.
An example of a restrictive covenant is to put a clause in an agreement that restricts how a building is to be constructed in other to grant the covenantee access or right to light on his land
S.158(1) provides that:
Where an instrument which contains a covenant by which one proprietor restricts the building on, or the user or other enjoyment of the land of the proprietor for the benefit of the proprietor of another land is presented to the Land Registrar, the Land Registrar shall
- Enter a notification of the covenant in respect of the land burdened by that restriction and of the land that benefits from that restriction in the register.
- File the instrument.
2 A restrictive covenant in respect of land or interest in land registered under this Act , unless noted in the register is not binding on the proprietor of the land or the interest burdened by the covenant other than a party to the covenant.
Exceptions to the conditions that restrictive covenants must be for the benefit of the land retained by the covenantee are leases, mortgages and building schemes. With Leases because of the reversionary interest to the Lessor; with mortgages because of the equitable interest of the mortgagee during the subsistence of the mortgage and with building schemes because of the interest of the owner of the estate to maintain conformity and standardisation in the structure and appearance of the estate.
A profit is defined under S 281 of the Act as:
The right at common law to go on the land of another person to take a particular type of object from that land, whether part of the soil or a product of the soil.
Some examples of profits are; the right to go on someone’s land to graze cattle, to fish from a someone’s pond or pluck fruit from trees from another person’s land.
S.159(1) provides that:
The grant of a profit has no effect unless;
- The profit is noted in a register as an encumbrance relating to the land affected by the profit.
- Where the profit is appurtenant to other land, the profit is noted in the register.
- The Instrument granting the profit is in the form set out in subsection (2) and filed in the Registry.
2 An instrument granting a profit shall clearly specify:
- The nature of the profit, the period for which the profit is to be enjoyed and the conditions, limitations and restrictions intended to affect the enjoyment of the profit.
- The land burdened by the profit and the particular part of the land which is burdened.
- Whether the profit is enjoyed in gross or as an appurtenance to any other land, and the land to which the is appurtenant; and
- Whether the profit is to be enjoyed by the grantee exclusively or by the grantee in common with the grantor.
Why it is important to register encumbrances?
Registration of encumbrances like any other interests on land makes them binding on the parties, as well as third parties who acquire the land affected or any interest in it.
As earlier mentioned, an encumbrance may diminish and affect the value of a piece and parcel land. Since an encumbrance is not apparent or readily seen when a prospective purchaser visits a piece and parcel of land he is interested in, a prospective purchaser contemplating purchasing a piece and parcel of land is well-advised to conduct a search pursuant to S 130 of Act 1036 at the relevant land registry to not only identify ownership but also any registered encumbrance which may enable him make an informed decision on whether or not to proceed with the transaction
S.228 of Act 1036 provides that the registration of an instrument constitutes actual notice of the instrument and of the fact of registration to all persons and for all purposes, as from the date of registration unless otherwise provided in an enactment.
Acknowledgement; B. J da Rocha and C.H.K Lodoh,  Ghana Land Law and Conveyancing 2nd edn.
By Ekua Eguakun( Private Legal Practitioner).