Appointment of rights of common

It was established practice under common law that, when the property to which appurtenant rights were attached was divided, through sale or gift, the rights would be apportioned pro rata. Prior to 1965, levancy and couchancy allowed for some deviation from this rule to reflect the quality of the land.

Following the quantification of appurtenant rights under the Commons Registration Act 1965, it was argued by some that, upon division, the rights could be apportioned as the vendor of the property to which they were attached wished and this happened in many instances. However, if the register is silent then pro rata apportionment will be applied.

The Commons Act 2006 (section 9) resolved the uncertainty arising from the 1965 Act and requires that common rights must be apportioned pro rata with effect from 29 June 2005. The apportionment cannot be recorded in the rights section of the register although vendors or purchasers can make a voluntary declaration of entitlement which will be recorded in a new column in the registers. Such a declaration has the benefit of keeping the register up to date rather than it simply being a record of a particular point in time.