SIMON
FACT SHEET NUMBER 7
REGISTRATION OF FISHING RIGHTS
1. INTRODUCTION
A
bit of background on English property law is necessary by way of introduction:-
A person who owns land abutting a river or lake may also own the bed of
that river or lake. That will be
the case where both banks of a river are owned or all the land surrounding a
lake is owned. Sometimes it will be
the case when only one bank is owned.
More often ownership of the bed only arises under the riparian
presumption. This presumption
is that an adjoining owner is presumed to own one-half of the bed of the river
or lake abutting unless that presumption is rebutted. See also Fact
Sheet 9 - Water Law.
Whether ownership derives from a root of title or from the rebuttable
presumption, certain riparian rights attach to such ownership. Included is the right of fishing.
The right of fishing is known in law as a profit a prendre. In simple terms it is a right to do
something (in this case fishing) and take something away (in this case fish)
from another person’s land.
When a landowner grants fishing rights there are two phrases that are
commonly used in defining the grant.
First you may see the phrase “all that sole exclusive and several
fishery”. Secondly you may
see the phrase “the right to fish in and take and carry away fish”.
The difference between these two phrases is that the first operates to
grant a “several fishery” whereas the second merely grants a right
to fish. There is a presumption
that where there is a grant of a several fishery not only the fishing rights
vest but also the bed of the river.
In the other case only the rights vest.
Most grants of fishing rights will include ancillary rights, such as
rights of way to the fishery and along the banks for fishing, to clear banks of
vegetation and for parking.
Whilst most fishing rights derive from a deed granting the rights, it is
also possible to establish a lawful right to fish by long usage. Such use must be for in excess of twenty
years. It must be “as of
right”. This means it must
not have been with the true owner’s consent. The rights must have been exercised
openly and without force.
Since
the passing of the Land Registration Act 2002 it has been possible to register
fishing rights at the Land Registry.
Registration of fishing rights gives you:-
·
A guaranteed
title document
·
Clarity as
against adjacent landowners
·
Certainty if you
have to claim compensation for damage to your fishery
·
Simpler
procedures for transferring the fishing rights
2. REGISTRATION
PROCEDURE
Now
that the Land Registry has a track record in dealing with registration of
fishing rights the process is much more straightforward.
Applications for registration of fishing rights are made to the Land
Registry in
The Land Registry has prescribed forms that have to be completed. These are lodged together with documents
showing the root of title of the original owner and also from the original
grantees to the current trustees or other owners. Specified searches are carried out. A certificate of value is supplied
(which determines the Land Registry scale fee payable) and an accurate plan has
to be submitted.
Where there is a grant of a several fishery the Land Registry should
register you as proprietor of the bed of the river. However in some cases the original
grant is expressed to be a several fishery, but the owner relied on the
riparian presumption when making that grant. Sometimes in these cases the Land
Registry will only register rights as the original owner is not registered
itself as owner of the bed.
Otherwise a profit a prendre of fishing rights will be registered. In either case it means you will have a
secure registered title to the fishing.
In all cases details of the original conveyance will appear on the title
document and a copy of that document will have been retained and scanned by the
Land Registry, so that it can provide evidence of any ancillary rights granted
along with the fishing rights.
Details of the same deed will also appear on the parent freehold title
document. Any subsequent search of
land subject to the fishing rights will reveal that the registered fishing
rights affect that land.
Where the title claimed is based on long occupation the application to
register may be one of two types.
If evidence can be established that the bed of the river has been
occupied by, e.g., one or more of gravel removal, construction of groynes, weed
control or wading, it may be possible to apply to be registered as owner of the
bed of the river on the basis of adverse possession. This requires not less than twelve years
uninterrupted ownership. More
likely however is that the application would be based on occupation of the
fishing rights. In which case
evidence by statutory declaration of the use of the rights without permission,
force or secrecy for a twenty year period needs to be established.
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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.
Simon Jackson
Solicitors
The Office
Tyn Celyn
Llansilin
Oswestry
SY10 7JW
Tel: 01691 791439
Fax: 01691
791583
e-mail: srbj@btconnect.com