Sub-division of the Land in a Folio
A registered owner of a holding of land may request that part of that land be registered in a new folio in his own name. This request may be made in a letter signed by the registered owner or his solicitor, which should refer to an attached map (ideally a copy of the Registry map) accurately identifying the portion which is to be sub-divided. Very often such sub-divisions are sought because the registered owner intends to create a mortgage over part of the property in the folio. In these circumstances mortgagees often insist that the land in the new folio should enjoy easements over the land in the “parent” folio. However, it is important to remember that a person cannot grant himself an easement over his own property. This problem may be overcome by inserting a clause in the mortgage deed granting the mortgagee power, in the event of it exercising its power of sale, to create easements over the land in the “parent” folio (see Precedent 8.C).
PRECEDENT 8.C
ADDITIONAL CLAUSES TO BE INSERTED IN A CHARGE DEED CONFERRING POWER FOR THE LENDER TO GRANT EASEMENTS OVER THE LAND OF THE BORROWER
(a) The borrower hereby grants unto the (Lender) full power and authority as part of its security to grant and transfer in due exercise of its power of sale along with the land hereby charged and as easements appurtenant thereto exercisable over the land remaining in the above folio all the rights set out in the Schedule hereto and for this purpose the borrower hereby irrevocably appoints the (Lender) to be his lawful attorney.
(b) The borrower hereby covenants with the (Lender) not to transfer or otherwise part with possession of all or part of the land remaining in the above folio without the consent of the (Lender) and, in the event of the (Lender) consenting to such a transfer, to reserve thereout as easements appurtenant to the land hereby charged the said rights set out in the Schedule hereto.
(c) The borrower hereby assents to registration of the said power and the said covenant in favour of the (Lender) as burdens affecting the land remaining in the above folio and further assents to registration of an entry on the folio inhibiting all dealings with the land remaining in the folio except with the consent of the (Lender).
(Insert a schedule detailing the relevant easements.)