Land Registry Practice Guide 1 Sept 2009

Land Registration Act 2002 Scope of this guide First registrations This guide deals with the procedure to be followed when applying for Update – This edition of the guide replaces the April 2009 edition. first registration of unregistered Amendments have been made as a result of the Land Registration estates in land. It does not deal (Amendment) Rules 2009 and the Companies Act 2006 coming into with the effects of registration or force on 1 October 2009. the characteristics of the various classes of title with which land may be registered. It is aimed at conveyancers and you should interpret references to ‘you’ accordingly. Land Registry staff will also refer to it.

Contact details You can obtain copies of this and all our other guides free from any Land Registry office, and view or download them from our website in English and Welsh.

This publication can be made available in alternative formats on request. If you or any of your colleagues require an alternative format please contact Customer Service at Land Registry Head Office.

You can find details of Land Registry offices, telephone numbers and opening times on our website. Telephone numbers are also listed under ‘Land Registry’ in the Phone Book. www.landregistry.gov.uk

1 Land Registry Practice Guide 1 Sept 2009

2 Land Registry Practice Guide 1 Sept 2009 First registrations

1 Abbreviations and terms used 5

2 Introduction 5 2.1 What interests may be registered? 5 2.1.1 Estates in land 5 2.1.2 Manors 6 2.2 The advantages of land registration 6

3 Compulsory applications for first registration 6 3.1 On a transfer of a freehold estate in land 6 3.2 On a transfer of an existing leasehold estate in land 7 3.3 On the grant of a new leasehold estate in land 7 3.4 On a first legal mortgage 8 3.5 Cases in which compulsory registration does not apply 8

4 Voluntary applications for first registration 8 4.1 Registration in advance of a dealing 8 4.2 Registration of substantial holdings of unregistered land 8

5 Lodging applications for first registration 9 5.1 Who can apply? 9 5.2 Form of application 9 5.3 Completion of the application form FR1 9 5.4 Documents that must accompany form FR1 14 5.4.1 Form DL 14 5.4.2 Plan 14 5.4.3 Lease 14 5.4.4 Title deeds 15 5.4.5 Land Charges searches 16 5.4.6 Certificate of registration of company charge 17 5.4.7 Charitable, ecclesiastical and public trusts 17 5.4.8 Constitution of a corporation 17 5.4.9 Social landlords 17 5.4.10 Application for a restriction and use of form RX1 17 5.4.11 The appropriate stamp duty land tax (SDLT) certificate 18 5.4.12 Form DI 19 5.4.13 Form EX1 19 5.4.14 Form AP1 19 5.5 Land Registry fees 19 5.6 Submitting your application 20 5.7 Time limit 20

6 The examination process and classes of title 20 6.1 Examination of title 20 6.2 Evidence of title where the deeds have been lost or destroyed 21 6.3 Classes of title 22 6.3.1 Absolute freehold title 22 6.3.2 Absolute leasehold and good leasehold titles 22 6.3.3 Qualified titles 23 6.3.4 Possessory titles 24 6.4 Titles based on assents 24 6.5 Title to appurtenant easements 24 6.6 Land charges void for non-registration at the Land Charges Department 25 6.7 Land that has been in the same ownership for a considerable time 26 6.8 First registration based on dispositions by the Crown and the Duchies of Lancaster and Cornwall 26

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6.8.1 Foreshore 26 6.8.2 Escheat 27 6.9 Purchases by tenants of public housing, purchases of housing estates etc and repurchases of defective housing 27 6.9.1 Right to bu y/right to a shared ownership lease 27 6.9.2 Preserved right to buy 27 6.9.3 Disposal subject to preserved right to buy/voluntary disposal with consent of the Secretary of State/disposal by Housing Action Trust or the Development Board for Rural Wales 27 6.9.4 Repurchases of defective housing 27 6.10 Short titles 28 6.11 Enquiries in advance of an application 28

7 Forms of transfer inducing first registration 28 7.1 Use of a Land Registry transfer or assent 28 7.2 Transfer and assent forms 28 7.3 Vesting of land in new trustees of an existing trust on the death of a sole or last surviving trustee 29

8 Dealings with land before first registration is completed 29 8.1 Dealing is a transfer 29 8.2 Dealing is the grant of a lease 30 8.3 Charges 30 8.3.1 First legal mortgage 30 8.3.2 Puisne mortgage (second charge) by the estate owner of unregistered land 30 8.4 Other dealings 31 8.5 Reservation on a sale of a part 31 8.6 Dealings with land in the course of registration 31

9 Enquiries and comments 31

Land Registry advisory policy 32

4 Land Registry Practice Guide 1 Sept 2009 1 Abbreviations and terms used

In this guide: ‘LRA 1925’ means the Land Registration Act 1925; ‘LRA 2002’ means the Land Registration Act 2002; ‘LRR 2003’ means the Land Registration Rules 2003; ‘CA 2006’ means the Companies Act 2006; ‘Fee Order’ means the current Land Registration Fee Order; ‘conveyancer’ means a solicitor, a licensed conveyancer within the meaning of s.11(2), Administration of Justice Act 1985, a Fellow of the Institute of Legal Executives, a barrister, a duly certificated notary public, or a registered European lawyer (as defined) (r.217(1), LRR 2003). Where appropriate they include in-house conveyancers as well as those in private practice.

The meaning of ‘transfer’ is dependent on the context. It may or may not include an assent, an assignment, a conveyance or a lease.

You should also note that ‘land’ as defined by s.132, LRA 2002 includes: — buildings and other structures — land covered with water — mines and minerals, whether or not held with the surface 1. 2 Introduction

2.1 What interests may be registered? S.2, LRA 2002 makes provision for the registration of title to: — estates in land — rentcharges — franchises — profits a prendre in gross.

This guide deals only with the first registration of unregistered freehold and leasehold estates in land. While much of it will be relevant to the first registration of franchises, profits a prendre in gross and rentcharges, it does not deal with the particular issues that arise in registering those interests. See Practice Guide 16 – Profits and Practice Guide 18 – Franchises for more detailed information.

Nor does this guide deal with: — applications based on adverse possession. See Practice Guide 5 – Adverse possession of unregistered land and transitional provisions for registered land in the Land Registration Act 2002, or — the creation of new leases out of registered titles. Under s.27(2)(b), LRA 2002 these are treated as dealings, not as first registrations. See Practice Guide 25 – Leases – when to register.

2.1.1 Estates in land Only estates that can exist at law, that is a fee simple absolute in possession or a term of years absolute, can be registered under the LRA 2002.

Because of the provisions of s.27(2)(b), LRA 2002 in respect of the granting of leases out of registered titles, this guide refers only to the registration of leasehold estates: — granted out of an unregistered estate — granted out of a registered estate before 13 October 2003 that were unregistrable at that time, but are now registrable. 1 But see s.4(9), LRA 2002, which excludes mines and minerals held apart from the surface from compulsory registration. Some of these estates, however, are not subject to compulsory registration. 5 Land Registry Practice Guide 1 Sept 2009

See section 3 Compulsory applications for first registration for information about applications where registration of title is compulsory.

See section 4 Voluntary applications for first registration for information about applications where registration of title is voluntary.

2.1.2 Manors It is no longer possible to register title to the lordship of a manor. Under the LRA 1925 this could be done voluntarily, though it was never compulsory. Where the title to a manor is already registered the proprietor may apply for it to be removed from the register (s.119, LRA 2002).

Many manorial titles include no physical land. Sometimes, however, land may still be attached to a manor and title to it may pass on a transfer of the manor. The compulsory registration provisions of the LRA 1925 did not apply to land that was part of a manor and included in the sale of a manor as such (s.123(3)(c), LRA 1925 (repealed)). There is no such exception in the LRA 2002. Therefore, if a manor includes physical parcels of land, the title to the land concerned must be registered following a transfer, mortgage or lease of a kind that triggers first registration. The lordship of the manor itself cannot be registered.

2.2 The advantages of land registration Registration under the LRA 2002 supports home and property ownership and the secured credit market by: — providing state-backed registration, giving greater security of title — providing greater protection against the possibility of losing title by adverse possession — indemnifying the proprietors under s.103 and Schedule 8, LRA 2002 against any loss if they are deprived of their state-backed title (see ss.11 and 12, LRA 2002) on a rectification of the register under s.65 and Schedule 4, LRA 2002 — introducing certainty and simplicity into conveyancing — setting out, or referring in the register to, all the rights that benefit and affect the title other than certain overriding interests — showing the general extent of the land in each title by means of a title plan — ensuring that capital can circulate freely in the economy by making land readily available as security — making large holdings of land and portfolios of charges readily marketable. 3 Compulsory applications for first registration

S.4, LRA 2002 specifies the events that trigger compulsory registration. S.4(1), LRA 2002 calls this the ‘requirement of registration’. Although we will express a view, on request, as to whether s.4, LRA 2002 applies to a particular type of transaction, you should bear in mind that a definitive interpretation of the section can only be given by the court.

S.80, LRA 2002 provides for compulsory registration of grants by Her Majesty out of demesne land. For further information see section 6.8 First registration based on dispositions by the Crown and the Duchies of Lancaster and Cornwall .

3.1 On a transfer of a freehold estate in land Registration is compulsory on a transfer of an unregistered freehold estate in land:

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— for valuable or other consideration (s.4(1)(a)(i), LRA 2002) including a transfer of property with a negative value under s.4(6), LRA 2002 — by way of gift (s.4(1)(a)(i), LRA 2002) including for the purposes of constituting a trust under which the settlor does not retain the whole of the beneficial interest, or uniting the bare legal title and the beneficial interest in property held under a trust under which the settlor did not, on constitution, retain the whole beneficial interest (see s.4(7), LRA 2002) — in pursuance of an order of any court (s.4(1)(a)(i), LRA 2002) — by means of an assent (s.4(1)(a)(ii), LRA 2002) including a vesting assent as defined in s.4(9), LRA 2002 — giving effect to a partition of land subject to a trust of land (s.4(1)(a)(iii), LRA 2002) — by a deed that appoints, or by virtue of s.83, Charities Act 1993 has effect as if it appointed, a new trustee or is made in consequence of the appointment of a new trustee (s.4(1)(aa)(i), LRA 2002) — by a vesting order under s.44, Trustee Act 1925 that is consequential on the appointment of a new trustee (s.4(1)(aa)(ii), LRA 2002), or — in circumstances where s.171A, Housing Act 1985 applies (s.4(1)(b), LRA 2002) (disposal by landlord that leads to a person no longer being a secure tenant).

3.2 On a transfer of an existing leasehold estate in land Registration is compulsory on transfers of an unregistered leasehold estate in land with more than seven years to run at the time of the transfer (see s.4(2)(b), LRA 2002): — for valuable or other consideration (including a transfer of property with a negative value) — by way of gift (including for the purposes mentioned in section 3.1 On a transfer of a freehold estate in land ) — in pursuance of an order of any court — by means of an assent (including a vesting assent) — by a deed giving effect to a partition of land subject to a trust of land — by a deed that appoints a new trustee (in the circumstances referred to in section 3.1 On a transfer of a freehold estate in land ), or — by a vesting order under s.44, Trustee Act 1925 that is consequential on the appointment of a new trustee.

Registration is also compulsory on the transfer of any unregistered leasehold estate in land, for however short a term, in circumstances where s.171A, Housing Act 1985 applies (disposal by landlord that leads to a person no longer being a secure tenant).

3.3 On the grant of a new leasehold estate in land Compulsory registration applies to grants both out of unregistered freehold estates and out of unregistered leasehold estates, that at the time of the grant have more than seven years to run. The lease granted must be either: — for a term of more than seven years from the date of the grant (s.4(1)(c)(i), LRA 2002), and — for valuable or other consideration (including a lease of property with a negative value), by way of gift (including for the purposes mentioned in section 3.1 On a transfer of a freehold estate in land ) or in pursuance of an order of the court or : — for a term of years absolute to take effect in possession after a period of three months from the date of the grant (s.4(1)(d), LRA 2002).

Compulsory registration also applies to the grant out of any unregistered title of any lease for however short a term: — in pursuance of Part 5, Housing Act 1985 (right to buy) (s.4(1)(e), LRA 2002) — in circumstances where s.171A, Housing Act 1985 applies (disposal by landlord that leads to a person no longer being a secure tenant). 7 Land Registry Practice Guide 1 Sept 2009

3.4 On a first legal mortgage Compulsory registration also applies on the creation by the owner of an estate in unregistered land of a protected first legal mortgage (s.4(1)(g), LRA 2002) unless it is a mortgage of a lease with no more than seven years to run. A protected first legal mortgage is one that, on creation, ranks in priority ahead of other mortgages affecting the mortgaged estate.

3.5 Cases in which compulsory registration does not apply Nothing in the LRA 2002 makes it compulsory to register title to: — incorporeal hereditaments (such as rentcharges, profits and franchises), or — mines and minerals held apart from the surface (see s.4(9), LRA 2002).

Registration of the above is voluntary. Incorporeal hereditaments other than franchises, profits a prendre in gross and rentcharges can only be registered as appurtenant to registered land. Some additional leasehold interests can also be registered voluntarily. These are explained in more detail in section 4 Voluntary applications for first registration . 4 Voluntary applications for first registration

S.3, LRA 2002 applies to any unregistered legal estate that is an interest of: — a freehold or leasehold estate in land — a rentcharge — a franchise — a profit a prendre in gross.

With two exceptions, a leasehold estate can only be registered voluntarily if more than seven years of the term are unexpired (s.3(3), LRA 2002).

The exceptions are: — a lease under which possession is discontinuous (such as a timeshare lease) can be registered however short the term (s.3(4), LRA 2002) — where a lessee holds a lease in possession and has been granted another lease of the same land to take effect in possession within one month of the expiry of the first lease, the two leases are treated as creating a single continuous term for the purposes of s.3, LRA 2002. Both can be registered if the combined term exceeds seven years (see s.3(7), LRA 2002).

4.1 Registration in advance of a dealing Voluntary application for first registration may be particularly useful where a prospective purchaser or mortgagee may have doubts about accepting the title. This may happen where, for example, the title deeds have been lost or destroyed, or are for some reason unavailable to the estate owner. Although we may not grant an absolute title, the title may still be acceptable to purchasers and mortgagees, particularly if supported by a title indemnity insurance policy.

You must apply in form FR1 in the usual way (see section 5.2 Form of application ).

For further information on applications where the title deeds have been lost or destroyed, see Practice Guide 2 – First registration of title where deeds have been lost or destroyed .

4.2 Registration of substantial holdings of unregistered land Substantial land owners may well find it convenient to register their entire holdings.

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Any land owner contemplating voluntary registration of a large holding of unregistered land or more than 20 individual first registrations should contact the Register Development Team on 0800 432 0432 or email: [email protected]

If you require further information about applications affecting a number of properties, see Practice Guide 32 – Bulk applications affecting one or more Land Registry office . 5 Lodging applications for first registration

5.1 Who can apply? When registration is compulsory, the estate owner (transferee or grantee) or their successor in title must make the application (s.6(1), LRA 2002).

However, a mortgagee under a mortgage falling within s.4(1)(g), LRA 2002 (ie one that triggers compulsory first registration) may make an application in the name of the mortgagor for the estate charged by the mortgage to be registered whether or not the mortgagor consents (r.21, LRR 2003).

Where there is a requirement of registration, the application must be made within two months (ss.6(1) and (4), LRA 2002). See section 5.7 Time limit .

Under s.3(2), LRA 2002 a person may apply voluntarily to be registered as the proprietor of an unregistered legal estate if: — the estate is vested in them, or — they are entitled to require the estate to be vested in them.

The following persons cannot apply. — A person with a leasehold estate vested in them, as a mortgagee where there is a subsisting right of redemption under s.3(5), LRA 2002. — A person whose entitlement is as a person who has contracted to buy under a contract under s.3(6), LRA 2002.

S.6, LRA 2002 does not apply to voluntary first registrations as there is no duty to apply for registration.

5.2 Form of application Your application must be made in form FR1, which is available from law stationers or can be downloaded from our website free of charge. As with all forms, you may reproduce it electronically if preferred.

5.3 Completion of the application form FR1

Panel 1 – Local authority serving the property Enter the local authority to which council tax or business rates are paid in respect of the property. This will be either a unitary authority, metropolitan and London boroughs, or, in 'two-tier' areas, the district council area.

Panel 2 – Address or other description of the estate to be registered Give the postal address including postcode, if any. We will generally enter the address in the register from the Post Office address file, so it may differ slightly from the address you enter here. If there is no postal address a general description such as ‘land on the north side of London Road, Whiteoaks’ will suffice.

Panel 3 – Extent to be registered You must provide sufficient details to enable us to identify clearly the extent of the land to be registered on the Ordnance Survey map (r.24(1)(a), LRR 2003). If we cannot establish the extent sufficiently for it to be indexed, we will reject your application. 9 Land Registry Practice Guide 1 Sept 2009

You have three options when completing this panel.

— Ad hoc plan This option must be used where you supply a plan on its own to identify the property. The plan or plans must be prepared to a suitable scale, preferably based on the Ordnance Survey map. Put an ‘X’ in the first box and complete the statement appropriately.

You cannot use the postal address option when registering a flat, maisonette, cellar or common parts within a building, or where a property comprises different extents at different levels. In these cases, you must supply a plan of the surface on, under or over which the land to be registered lies, and sufficient information to define the vertical and horizontal extents of the land (see r.26, LRR 2003). The plan can be either an ad hoc plan or a deed plan.

Similarly, a plan will always be needed if there are outbuildings or a parking area or bin space that cannot be clearly identified by description.

— Plan in title deeds Where the title deeds contain a satisfactory plan of the land to be registered, put an ‘X’ in the second box and state the nature and date of the deed that contains the plan (for example ‘conveyance dated 21 April 1926’).

This option should be used only where the deed plan is well drawn to an adequate scale and it is quite clear that the position of the boundaries has not changed since the plan was prepared.

— Postal address or other description Where the land can be fully identified from the description in panel 2 of the form you can put an ‘X’ in the last box. This should be possible where the property or each of the properties, if more than one, is either: — completely enclosed and the whole enclosure is readily identifiable on the Ordnance Survey map from the postal address given, or — identical to the land in another title, such as a registered lease where the application relates to the reversion. The title number should be included in panel 2, for example ‘registered leasehold under title number AA123456’.

If registering mines and minerals owned separately from the surface you must provide under r.25, LRR 2003: — a plan of the surface under which the mines and minerals lie — any other sufficient details by plan or otherwise so that the mines and minerals can be identified clearly — full details of rights incidental to the working of the mines and minerals.

Panel 4 – Class of title applied for — General observations If you are applying for only a possessory title or good leasehold title, enter ‘X’ in the relevant box in panel 4. Otherwise, enter ‘X’ against absolute freehold or absolute leasehold as the case may require. The registrar will then grant the best class of title that the circumstances permit.

You should note that we might not be able to grant the class of title that you apply for.

— Mixed freehold and leasehold Occasionally, due to inadequate descriptions in old deeds, freehold and leasehold land may have become indistinguishable. In such a case you should apply for absolute freehold title. The title will probably be registered 10 Land Registry Practice Guide 1 Sept 2009

as an absolute freehold title, but with a note on the register stating that the part of the land (if any) that is leasehold is registered with good leasehold title only.

— Former leasehold enlarged to freehold Absolute freehold title may also be applied for where a term of years has been enlarged into a fee simple under s.153(8), Law of Property Act 1925 or s.65(4), Conveyancing and Law of Property Act 1881. If the evidence supplied is satisfactory, we will make an entry in the register to reflect the appropriate legislation under which enlargement has occurred.

If the registrar is not satisfied with the evidence of enlargement, the freehold title will not be registered.

Panel 5 – Application, priority and fees — Merger of registered and unregistered leases Where a lease registered in the name of the estate owner is to merge in the immediate reversion, panel 5 should include an application to close the leasehold title on merger. You must also enclose a completed form AP1 with your application, quoting the merging title. If the leasehold title is charged you must lodge any form(s) DS1/DS2 or deed(s) of substituted security that are appropriate, or request the lender to discharge the mortgage electronically. Currently no additional fee is payable.

Where an unregistered lease belonging to the estate owner is to merge in the immediate reversion, panel 4 should include an application for the merger. See the Fee Order for the fee payable.

— Easements and other rights Easements and other rights referred to in the latest transfer will normally be included in the title, without specific application, if the registrar is satisfied that they benefit the estate being registered.

If the property has the benefit of rights not granted by deed you should apply specifically if you want them to be included in the title (see r.33(1)(b), LRR 2003). You must give details of the rights claimed, and prove their existence by appropriate statutory declarations.

— Other applications and their priority All charges to be registered and any action you are applying for (such as amalgamation with an existing registered title) should be listed in panel 5 in their intended order of priority, and any appropriate documents should accompany the application.

Where you are applying for any action with a specified application form, such as a restriction (form RX1) or designation as an exempt commercial information document (form EX1), you must also include that form, duly completed.

For information on completing the sub-section headed ‘Fee payment method’ , see section 5.5 Land Registry fees .

Panel 6 – The applicant The name(s) of the people applying to be registered as proprietors should be given here. Where a conveyancer lodges the application, the names of the clients not the firm should be given here. If the applicant is a company or limited liability partnership the second part of the panel will need to be completed.

For corporate bodies that are not registered under the CA 2006 in the UK,

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see also section 5.4.8 Constitution of a corporation .

Panel 7 – The applicant is sent to Land Registry by Fill in the particulars of your firm. If you are a layperson, add your own details here. You must provide either a postal or DX address for correspondence. Only give an email address here if you are happy for us to contact you this way.

Panel 8 – Address(es) for service of each proprietor of the estate This information will be entered in the proprietorship register. You may give up to three addresses for service for each applicant.

One address for each applicant must be a postal address, whether or not in the United Kingdom (r.198(3), LRR 2003).

The others may be a different postal address, a UK document exchange address or an electronic (email) address (r.198(4) and (7), LRR 2003). There is no need to give more than one address for each applicant.

Panel 9 – Where the applicant is more than one person Where there are joint estate owners, you must select one of the options in panel 9 by placing ‘X’ in the appropriate box.

If they are neither equitable joint tenants nor tenants in common in equal shares, select the last box and complete the statement as necessary.

The purpose of this is not to give the registrar notice of the trusts under which the land is held (under s.44(1), LRA 2002), but simply to enable us to enter a Form A restriction (see r.95(2)(a), LRR 2003). We must enter this restriction whenever we register two or more persons as proprietors of an estate in land, unless the survivor of the proprietors will be able to give a valid receipt for capital money arising on a disposition. As a rule, the survivor can only give a valid receipt where the proprietors are equitable joint tenants or the personal representatives of an absolute owner.

Panel 10 – Name and address(es) for service for the proprietor of any charge All charges and mortgages to be registered should have been listed in panel 5.

Unless the charge carries a Land Registry MD reference (which can usually be found at the foot of the first page of the charge), you must give in panel 10: — the full name of the chargee — its registered number if it is a company or a limited liability partnership registered in the UK under the CA 2006 — the territory of incorporation and registered number in the UK (if any) if it is an overseas corporation — up to three addresses for service, as explained under panel 8.

Where the charge is to a bank, please provide the relevant branch or securities centre address and sort code.

If the charge has been transferred since it was created, you must give this information and provide evidence of the transfer, even if it bears an MD reference.

Where the charge has no MD reference and the chargee is a corporate body that is not registered in the UK under the CA 2006, see section 5.4.8 Constitution of a corporation .

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Panel 11 – Disclosable overriding interests Schedule 1, LRA 2002 lists the interests that override first registration. You should also refer to paragraphs 7 to 13 of Schedule 12, LRA 2002 for transitional arrangements relating to overriding interests.

With certain exceptions, you must disclose overriding interests that affect the estate being registered, and that the applicant actually knows about (see s.71, LRA 2002). The exceptions are set out in r.28(2), LRR 2003. In particular, you do not need to disclose any interest that is apparent from the deeds and documents of title lodged with your application.

In this panel, you must state whether there are any disclosable overriding interests, by placing an ‘X’ in the appropriate box. If there are any, you must list them on form DI, and lodge it with your application.

We may enter a notice in the register of any interest that you disclose.

Further information on overriding interests is contained in Practice Guide 15 – Overriding interests and their disclosure.

Panel 12 – Certificate as to other interests Generally there will be no rights, interests or claims known to the applicant other than those disclosed in the title documents or forms lodged. In this case place an ‘X’ in the first box in panel 12. If a certified copy of the instrument creating a right or interest is lodged, the right or interest will be treated as disclosed in the title documents and you do not need to mention it here. Nor do you need to disclose again any interest you have listed on form DI.

If there are any other undisclosed interests, rights or claims known to the applicant, place an ‘X’ in the second box and complete the statement with whatever particulars are available. Any affecting land charges not covered in the deeds should be listed here.

Examples of third party rights, interests and claims that can affect the property are set out below. In this context, ‘land charges’ means puisne mortgages, equitable charges, estate contracts, restrictive covenants, equitable easements and other charges on, or obligations affecting, land falling in one of the classes listed in s.2, Land Charges Act 1972.

As explained in section 5.1 Who can apply? the applicant is generally the estate owner, but in certain circumstances others have the right to apply. When you are instructed by more than one party, for example the estate owners and the first mortgagees, include any rights, interests and claims known to any of them.

— Leases and tenancies You must tell us here of any lease to which the land is subject for which you are unable to provide documentary evidence, and that is not an overriding interest. Please give details if you are aware of any options contained in these leases.

Even though the leases are not overriding interests, there is no objection to your listing them on form DI if it would be convenient to do so.

You should also tell us about any options contained in leases that are not capable of being noted (see s.33, LRA 2002) where the option has not been disclosed in the title deeds or on form DI under paragraph 2 of Schedule 1, LRA 2002.

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— Land charges registered at the Land Charges Department See section 5.4.5 Land Charges searches .

— Land charges created by the applicant (or a predecessor in title where the applicant is not a purchaser for value) Land charges of this kind will be binding on the proprietor whether or not they have been registered at the Land Charges Department.

— Rights acquired, or in course of being acquired, under the Limitation Act 1980 If squatters occupy any part of the property details must be given here, unless the squatters’ interest has been disclosed on form DI under r.28(1), LRR 2003. We will not complete registration until the claims of the squatters have been investigated.

— Claims Give particulars of any claims that may result in an objection to the application or should be noted in the register (unless disclosed on form DI). If possible, provide the name and address of the person making the claim.

Panel 13 – Examination of title Place an ‘X’ in the box if the applicant’s title, including the title to any beneficial rights, has not been examined in the usual way prior to the application. If it has, you should leave panel 13 as it is. By signing panel 17 you will certify that it is correct. This enables the registrar, if thought fit, to have regard to prior examination by a conveyancer when they examine the title (see r.29, LRR 2003).

Panels 14-16 – Confirmation of identity To protect ourselves and our customers from identity fraud, we require completion of these panels when you are registering a transfer, lease or charge. If these are not completed, then we may reject the application.

In panel 14 you should cross the appropriate panel depending on whether you are a conveyancer or not. Depending on the answer, complete panel 15 or 16 by listing the parties to the deeds and who acted for them. Evidence of identity for an unrepresented party must be supplied. See Practice Guide 67 – Evidence of identity – conveyancers or Public Guide 20 – Evidence of identity – non-conveyancers for further information.

Panel 17 – Signature of applicant or their conveyancer/Date You must sign and date the form. We will always reject any unsigned FR1.

5.4 Documents that must accompany form FR1

5.4.1 Form DL This form, in duplicate, must always accompany form FR1. In panel 1, give the address or other description of the property. In panel 2, list, in order, all the documents lodged in support of the application (see r.24(1)(d), LRR 2003).

5.4.2 Plan If you have placed an ‘X’ in the first box in panel 3 of form FR1, you must enclose a plan sufficient to enable the land to be clearly identified on the Ordnance Survey map (r.24(1)(a), LRR 2003). See section 5.3 Completion of the application form FR1 for information on completing this panel.

5.4.3 Lease Where the title is leasehold, you must lodge the original lease, if it is in the applicant’s control, and a certified copy (r.24(1)(b), LRR 2003). If the title is subject to any leases you should lodge the relevant counterpart lease. If 14 Land Registry Practice Guide 1 Sept 2009

you wish us to return the counterpart, please include a certified copy for Land Registry records (see r.203(4), LRR 2003).

5.4.4 Title deeds Send all the deeds and documents relating to the title that the applicant has or can oblige the holder to produce, including opinions of counsel, abstracts of title, copies of documents, contracts for sale, requisitions, replies, searches and other documents relating to the title. All these documents must be listed on form DL under r.24(1)(d), LRR 2003.

Where the application is based on a purchase for value and the title has been investigated in the usual way back to a good root at least 15 years old, you should resist the temptation to edit the deed package so as to send us only a recent root of title and subsequent conveyances. Though we may not need to see very old documents, particularly if they are fragile, deeds from the 19th and early 20th centuries often contain definitive details of covenants, easements and other matters that need to be entered in the register. They may also contain better plans than more recent deeds.

You will reduce the likelihood of our sending you requisitions by lodging a complete bundle of deeds, and the examiner will have a better opportunity to frame fully informative entries both as to the nature of any covenants or rights and the extent of the land affected.

Original deeds and documents need not be produced if they are not in the control of the applicant. Examples would be where: — they affect other land — they are held by a chargee under a subsisting charge entered into before the transfer to the estate owner (but note that, as we will have to register the charge, the chargee will usually have to consent to the application), or — their production would entail the applicant paying a fee to the holder.

In such cases, you should supply an abstract or certified copies of the relevant deeds. Abstracts should be marked by a conveyancer as examined against the original deeds. All particulars of wills, grants of probate or letters of administration, marriages, civil partnerships and deaths set out in the abstract of title as separate items should also be verified and marked accordingly.

If there is no good explanation for the absence of the original deeds, we may not be able to give an absolute title. If you require further information about missing deeds, refer to Practice Guide 2 – First registration of title where deeds have been lost or destroyed.

The evidence required in support of your application depends on the nature of the title and the class of title sought – see section 6 The examination process and classes of title .

Where the application is based on an assent, we will need to be satisfied that the assentee was the person entitled to have the legal estate transferred to them – see section 6.4 Titles based on assents .

Any original statutory declarations, statements of truth, certificates relating to stamp duty land tax, subsisting leases, subsisting charges, certificates relating to stamp duty land tax as required by s.79. Finance Act 2003 and the latest document of title (such as the transfer to the applicant) will be retained under r.203(4), LRR 2003 unless you lodge a certified copy.

Apart from this, we will return the pre-registration deeds after registration. Subject to the rights of any mortgagee that wishes to hold them, the estate owners are entitled to possession of them, and they ought not to be 15 Land Registry Practice Guide 1 Sept 2009

destroyed without their authority. There are several reasons why a customer may want to keep pre-registration deeds. — They often contain information that would not appear on the land register. For example details of trusts, wayleaves, licences, short leases, correspondence and old searches. — They may assist in future if the title comes into question or on alteration applications. — Recent court decisions have stated that only the deeds can establish the exact line of a boundary on a property registered with general boundaries.

Particularly with older properties, the deeds may have considerable historical interest. Local archives or record offices are usually happy to take unwanted deeds and documents, either as a gift or on loan. Documents deposited on loan are always available for consultation or withdrawal by the owner. The British Records Association (Records Preservation Section), care of Finsbury Library, 245 St John Street, London EC1V 4NB (Tel: 020 7833 0428, website: www.britishrecordsassociation.org.uk) can give advice and assistance on the deposit of documents in an appropriate archive.

5.4.5 Land Charges searches The registrar can make searches and enquiries, or direct the applicant to make them (r.30, LRR 2003). Other than that, there are no specific requirements in the LRR 2003 regarding searches against the estate owners or their predecessors in title.

You should lodge at least the following searches with the application. — A search against the sellers in the most recent transfer on sale, and also their predecessors in title back to the preceding conveyance on sale. — A search against the estate owners and their predecessors in title back to the last conveyance on sale, if the time that has elapsed since that conveyance is such that there is a possibility of entries having been made against their names, or if the applicants are not the estate owners (see section 5.1 Who can apply ? ).

Any earlier search certificates that are with the deeds should also be lodged.

The searches must be against the correct name of each estate owner and cover the whole period during which a charge could have been registered in that name. In the case of a deceased estate owner, the period should extend to the date that the personal representatives disposed of the property, or, if they have not yet done so, to the present. This is because charges may have been registered against the deceased’s name after their death, under ss.3(1A), 5(4A) or 6(2A), Land Charges Act 1972.

Remember that some county boundaries have changed over the years so you should search against any appropriate former county.

You must account for any entry appearing on the searches lodged. If it does not affect the land being registered, a conveyancer should certify that fact. Failing this, you should explain the entry in panel 12 of form FR1, and lodge the original, a certified copy or an examined abstract of the deed or document on which the entry is founded. If this is impossible, you should obtain an office copy of the entry from the Land Charges Department and lodge that, together with any further evidence of the protected interest.

If only an office copy of the entry is available, we are likely to make a protective entry in the register.

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5.4.6 Certificate of registration of company charge With a few exceptions 2, charges created by either a UK or an overseas company registered under the CA 2006 or by a limited liability partnership must be registered at the appropriate Companies Registry. See s.860 (for companies registered in England Wales and Northern Ireland), s.878 (for companies registered in Scotland) and s.1052 (for overseas companies registered in the UK) CA 2006. This should be done before you apply for registration of the title. The certificate of registration issued by the Companies Registry must accompany your application. If it does not, we will make an entry in the register stating that the charge is subject to the provisions of s.860, s.878 or s.1052, CA 2006, as appropriate (rr.111(2) and 111A(2), LRR 2003).

5.4.7 Charitable, ecclesiastical and public trusts Where a corporation or body of trustees holding on charitable, ecclesiastical or public trusts, other than for a non-exempt charity, applies to be registered as proprietor of a registered estate or charge, the application must be accompanied by the document creating the trust or a certified copy of it (see rr.182 and 214, LRR 2003).

There are additional requirements for charities. See Practice Guide 14 – Charities .

5.4.8 Constitution of a corporation If the applicant is a corporate body, but is not either: — a company registered in the UK under the CA 2006 — a limited liability partnership incorporated under the Limited Liability Partnerships Act 2000 or the Limited Liability Partnerships Act (Northern Ireland) 2002, or — the trustee of a public, ecclesiastical or charitable trust (other than a non-exempt charity) you must lodge evidence of the extent of its powers to hold and sell, mortgage, lease, and otherwise deal with land, and, in the case of a charge, to lend money on mortgage (see r.183(1), LRR 2003). The evidence must include the document(s) constituting the corporation, or a certified copy, and any further evidence the registrar may require (see rr.183(2) and 214, LRR 2003). If the evidence is in a language other than English or Welsh, you must supply a certified translation of it.

Alternatively a certificate in Form 7 (for a corporation incorporated outside the United Kingdom) may be given by a qualified lawyer practising in the territory of incorporation or in Form 8 (for a corporation incorporated within the United Kingdom) may be given by the applicant’s conveyancer.

5.4.9 Social landlords If the land is held by or in trust for a registered social landlord (see s.1, Housing Act 1996), or is grant-aided land held by or in trust for an unregistered housing association 3, the application must be accompanied by a certificate to that effec t4.

5.4.10 Application for a restriction and use of form RX1 2 The relevant exceptions are charges for any rent When registering a single individual or corporation as proprietor of a or other periodical sum issuing out of land, and registered estate, whether on a dealing or on first registration, the registrar charges taken on a property by way of substituted security in exchange for an existing will only enter a restriction in the following form (Form A) if it is applied for. property released from a trust deed that was itself duly registered as a charge under the CA 2006. “RESTRICTION: No disposition by a sole proprietor of the registered estate 3 For ‘housing association’ see s.1, Housing (except a trust corporation) under which capital money arises is to be Associations Act 1985. As to registration of housing associations see s.1, Housing Act 1996. registered unless authorised by an order of the court.” ‘Grant aided land’ is defined in Schedule 1 to that Act. 4 See r.183, LRR 2003. Nevertheless, such a restriction ought to be entered on registering a sole 5 See s.8, Trustees of Land and Appointment of trustee or nominee as proprietor of a registered estate, since such a Trustees Act 1996. person will normally be unable to give a valid receipt for capital money. 17 Land Registry Practice Guide 1 Sept 2009

Consequently, a sole or last surviving trustee of a trust of land who applies to be registered as proprietor must at the same time apply for a Form A restriction. This applies both on first registration and on registered dispositions (r.94(2), LRR 2003). The application must be made in form RX1 or in the additional provisions panel of a Land Registry form of transfer in favour of the applicant (see r.92(7)(a), LRR 2003).

Similarly, an applicant for first registration of a legal estate held on a trust of land where the powers of the trustees are limited 5 must apply for a restriction in Form B. This also applies where the legal estate is vested in the personal representatives of a sole or last surviving trustee. Application must be made in form RX1 or using a Land Registry form of transfer, as stated in the preceding paragraph.

Where the legal estate is held on charitable, ecclesiastical or public trusts, see section 5.4.7 Charitable, ecclesiastical and public trusts .

In other situations where you wish to apply for a restriction, you must use form RX1, unless excepted under r.92, LRR 2003. See Practice Guide 19 – Notices, restrictions and the protection of third party interests for additional information.

5.4.11 The appropriate stamp duty land tax (SDLT) Certificate If the application is based upon or includes a land transaction that is affected by SDLT, the appropriate stamp duty land tax certificate or self- certificate relating to that transaction must accompany the application. Where the application includes a transfer that is not considered by HM Revenue & Customs (HMRC) to constitute a land transaction for SDLT purposes, an explanation should be provided, as Land Registry may reject any application that fails to include a certificate where one appears to be necessary.

SDLT applies to most transactions dated on and after 1 December 2003.

Land transactions fall into three categories, namely: — those requiring notification to HM Revenue & Customs (HMRC) and the completion of a land transaction return. HMRC will issue a land transaction return certificate as evidence that SDLT has been accounted for on the transaction notified in the return. You must submit the original certificate or submission receipt to Land Registry when registering the transaction — those transactions not requiring notification to HMRC where the transaction was completed on or after 12 March 2008 and comprises: — an acquisition (other than the grant, assignment or surrender of a lease) where the chargeable consideration for that acquisition (together with any linked transaction) is less than £40,000. This includes, for example, transfers of freehold land, deeds of gift and deeds of grant of easements. This covers the noting of interests as well as their substantive registration — the grant of a lease for seven years or more where: — the premium is less than £40,000 and — the annual rent is less than £1,000 — the assignment or surrender of a lease where: — the lease was originally granted for a term of seven years or more, and — the consideration for the assignment or surrender, other than any rent, is less than £40,000, and — the rent is less than £1,000

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— the grant, assignment or surrender of a lease for a term of less than seven years where the premium does not exceed the zero-rate threshold — those transactions that are exempt from SDLT or outside the scope of SDLT and do not require notification.

Under stamp duty arrangements, where a transfer for value is below the stamp duty threshold, the transfer and form L(A)451 are sent to Land Registry. This arrangement does not apply under SDLT. All land transactions liable to SDLT must be notified to HMRC unless they are one of the transactions described above and completed on and after 12 March 2008.

Advice on whether a particular transaction: — requires to be notified to HMRC on a land transaction return certificate — is exempt from SDLT (such as a legal charge) — falls outside the scope of SDLT can be obtained from the Stamp Taxes helpline on 0845 603 0135, open 08:30 to 17:00 Monday to Friday except public holidays.

HMRC’s Stamp Taxes website at www.hmrc.gov.uk/so also offers assistance.

5.4.12 Form DI You must use this form to reveal any disclosable overriding interests under r.28, LRR 2003 that are not apparent from the title deeds. This might include prescriptive rights and customary rights not recorded elsewhere. See Panel 12 – Disclosable overriding interests in section 5.3 Completion of the application form FR1 .

5.4.13 Form EX1 In some situations, where a document will be referred to in the register you may wish to have prejudicial information removed from that document. R.136(1), LRR 2003 provides for a request to be made by any person upon application.

If you wish to apply to the registrar to designate a document as an exempt information document, you must use form EX1 (r.136(2)(a), LRR 2003).

5.4.14 Form AP1 Separate applications are required in respect of registered and unregistered titles. Form AP1 is the application form for dealings with registered titles. Where the transfer or assent to the estate owner includes registered as well as unregistered titles, you must complete forms AP1 and FR1 and pay a separate Land Registry fee in respect of each.

Form AP1 may also be needed where there has been a dealing with the land prior to first registration. See section 8 Dealings with land before first registration is completed .

5.5 Land Registry fees See the Fee Order for the fees payable.

There are further details of the fee payable for applications to register large holdings of land in Practice Guide 33 – Large scale applications (calculation of fees) .

You must show the amount of the fee in panel 5 of form FR1 and, unless you have a prior authorised agreement with Land Registry to pay by direct debit, enclose a cheque for that amount, payable to ‘Land Registry’, with the application.

You should be aware that we change our fees from time to time to ensure that our costs are covered and that customers get the benefit of 19 Land Registry Practice Guide 1 Sept 2009

improvements in productivity. This results in a new Fee Order.

An updated ready reference guide is issued each time there is a new Fee Order. This guide contains enough information to enable you to calculate the fee payable in straightforward cases. You may also obtain details of the fee payable in particular cases from any Land Registry office. You should address any more complex queries in writing, explaining the full background to the transaction, to any Land Registry office.

The Fee Order can also be downloaded from Land Registry’s website at www.landregistry.gov.uk

5.6 Submitting your application You should send the application, accompanying documents and fee to the Land Registry office serving the area where the land is situated (r.15(3)(a), LRR 2003). If the land is in the areas of more than one Land Registry office, the application may be delivered to either or any of them.

A list of the administrative areas in England and Wales with their respective Land Registry offices is published in Practice Guide 51 – Areas served by Land Registry offices , available from any Land Registry office or from our website.

5.7 Time limit When first registration is compulsory (see section 3 Compulsory applications for first registration ), you must apply for it within two months of the date of completion of the transaction concerned (s.6(4), LRA 2002).

If you do not do so, the transaction becomes void as regards the transfer, grant or creation of a legal estate under s.7(1), LRA 2002. That means: — if the transaction was a transfer, conveyance or assent, the legal estate reverts to the transferor, who will hold it on a bare trust for the transferee — if the transaction was an appointment of a new trustee falling within s.4(1)(aa), LRA 2002, the legal estate reverts to the person in whom it was vested immediately before the transfer (see s.7(2)(aa), LRA 2002) — if the transaction was a lease or mortgage, it takes effect as if it were a contract for valuable consideration to grant the lease or mortgage concerned (see s.7(2), LRA 2002).

However, the registrar can make an order extending the two-month period, if satisfied on the application of any interested person that there is good reason for doing so under s.6(5), LRA 2002. If that occurs, the transferee, lessee or mortgagee recovers their legal estate, and is treated as having retained it all along (s.7(3), LRA 2002).

Any compulsory first registration application submitted after the two- month period has expired should therefore be accompanied by a request for an order under s.6(5), LRA 2002, and an explanation of the reason for the delay. 6 The examination process and classes of title

6.1 Examination of title In unregistered conveyancing, title is ultimately based on the estate owner’s right to be in possession of the land or to receive the rents and profits of it. Showing a full documentary title commencing with a good root of title that is at least 15 years old should normally establish this right. The appropriate class of title available to an applicant under ss.9(1) and

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10(1), LRA 2002 is primarily determined by the quality of documentary title lodged. A Land Registry examiner assesses the title deeds accompanying the application to determine if they prove a good holding title. The LRR 2003 provide that we may have regard to any prior examination of title by a conveyancer and to the nature of the property when considering the granting of title (r.29, LRR 2003).

To ensure that the best possible class of title is given to applicants, the LRR 2003 also provide for all the available deeds and documents relating to the title to be lodged (see r.24(1)(c), LRR 2003). If, therefore, any of the title deeds that should be in an applicant’s possession are not produced, you must properly account for their absence, especially where the grant of an absolute title might be prejudiced. Where a deed that is not essential to proving title is not lodged, Land Registry may make a protective entry, for example when it is known that the missing deed contains restrictive covenants.

Situations where relevant title deeds or documents are unavailable are covered in section 6.2 Evidence of title where the deeds have been lost or destroyed .

As to other situations where the applicant cannot show a 15-year documentary title prior to the deed inducing registration, see either section 6.7 Land that has been in the same ownership for a considerable time or section 6.10 Short titles .

As to the provision of certificates of title in lieu of other evidence, see section 6.9 Purchases by tenants of public housing, purchases of housing estates etc and repurchases of defective housing .

As to titles based on adverse possession, see Practice Guide 5 – Adverse possession of unregistered land and transitional provisions for registered land in the Land Registration Act 2002 .

The examiner may also make searches and enquiries under r.30(a), LRR 2003, or require the applicant to make any further searches or enquiries considered necessary under r.30(b), LRR 2003.

Land Registry may give notice of a first registration application to other persons under r.30(a), LRR 2003, and may also advertise it under r.30(c), LRR 2003. Advertisements are rare, but we will serve notice on third parties if we believe they may have grounds for objecting, for example on either: — the Highway Authority, if an application appears to include part of the highway, or — a person who has a caution against first registration of the estate concerned.

Any person may object to the application, whether or not we notify them of it (s.73, LRA 2002). We will notify the applicant of any objection and the title will not be registered until the objection has been withdrawn or disposed of. If necessary, the matter will be referred to the Adjudicator to HM Land Registry under s.73(7), LRA 2002.

Any purchaser or mortgagee should always make a prior search of the index map. This will reveal any caution against first registration, as well as revealing whether any part of the land is already registered.

6.2 Evidence of title where the deeds have been lost or destroyed The vendor’s ability to produce the title deeds of the property and the absence of any unexplained memoranda of sales off or other dealings with the land are important safeguards for a purchaser of unregistered land, and for the registrar on first registration. 21 Land Registry Practice Guide 1 Sept 2009

Where the applicants are unable to produce all the deeds that ought to be in their possession or control, the possibility of an undisclosed mortgage, of defective recollection by the applicant, or even of fraud, cannot be ruled out.

Because of this we take special precautions when registering land when it is claimed that all or some of the title deeds have been lost or destroyed. Particular attention will be given to: — the identity of the applicant — custody of the deeds at the time of their loss — the evidence of the loss or destruction and the circumstances in which it occurred — any available secondary evidence of the contents of the missing deeds — the possibility of restrictive covenants, easements or other incumbrances on the title.

For further information on class of title, protective entries and the undertakings we may require, see Practice Guide 2 – First registration of title where deeds have been lost or destroyed .

6.3 Classes of title

6.3.1 Absolute freehold title A person will be registered with absolute freehold title if we are satisfied that their title to the estate is:

“such as a willing buyer could properly be advised by a competent professional adviser to accept” (s.9(2), LRA 2002).

An application based on a purchase of unregistered land for value by the responsible estate owner (or a successor in title, see s.6(1), LRA 2002) supported by a proper documentary title commencing with a good root at least 15 years old at the date of the acquisition will normally result in the grant of an absolute title.

Land Registry may additionally disregard the fact that a title is technically flawed if the examiner is satisfied that any defect will not cause the holding under the title to be disturbed (s.9(3), LRA 2002). See section 6.3.3 Qualified titles for applications where the examiner is not able to disregard such title defects.

An application based on a first mortgage of unregistered land, supported by a proper documentary title commencing with a good root at least 15 years old at the date of the mortgage, will also normally result in the grant of an absolute title.

6.3.2 Absolute leasehold and good leasehold titles Absolute leasehold title will only be granted if: — we are satisfied that title to the estate is such as a willing buyer could properly be advised by a competent professional adviser to accept, and — we approve the lessor’s title to grant the lease (s.10(2), LRA 2002).

We must also approve the title to any intermediate leasehold title that exists. We will not normally grant an absolute title to the lease being registered unless we are satisfied on the evidence lodged either: — that it and any superior leases were validly granted, or — that the lease is binding on the current lessors and their mortgagees, if any, and that the current lessor’s title is capable of registration with absolute freehold or absolute leasehold title. Prior to 19 June 2006, it was our practice to grant only good leasehold title if: — the applicant for registration was unable to lodge a consent by a head- lessor if the lease to be registered was a sub-lease and the lessor’s 22 Land Registry Practice Guide 1 Sept 2009

own lease contained a limitation on alienation, or — if the lessor’s mortgagee had not consented to the grant of the lease.

Following a review of our practice, and for leases registered since 19 June 2006, we now grant absolute leasehold title on: — registration of a sub-lease where the consent of the head-lessor is not lodged. At the request of the Law Society that the issue of consent by the head-lessor be dealt with in the individual registers for sub-leases, we will make the following entry in the property register of the lessee’s title.

"The registrar has not seen any consent to the grant of this sub-lease that the superior lease, out of which it was granted, may have required."

NB: While we will not make this entry if the registrar sees a consent, the consent may not have been a sufficient consent in terms of the head-lease. We will not check the terms of the head-lease, nor whether any consent has been given by the correct person.

It is our view that while a sub-lease in breach of a prohibition or restriction in a head-lease is a valid lease that may be registered with absolute leasehold title, absolute title in respect of that sub-lease would not prevent the forfeiture of the head-lease and determination of the sub-lease, with closure of the sub-lease title.

— registration of a lease where the consent of any mortgagee is not lodged. If no evidence is lodged that the mortgagee consented to the granting of the lease, or that the lease is within s.99, Law of Property Act 1925 or expressly authorised by the mortgage, we will make the following entry in the property register of the lessee’s title.

“The title to the lease is, during the subsistence of the charge dated … in favour of … affecting the lessor’s title (and to the extent permitted by law, any charge replacing or varying this charge or any further charge in respect of all or part of the sum secured by this charge), subject to any rights that may have arisen by reason of the absence of chargee’s consent, unless the lease is authorised by section 99 of the Law of Property Act 1925.”

The purpose of this entry is to alert any potential purchasers to the possible vulnerability of the registered lease. It should also reduce the possibility of the mortgagee’s right effectively to determine the lease being lost as a result of s.29, LRA 2002.

NB: This practice applies equally to legal charges, floating charges and fixed equitable charges.

Good leasehold title is granted where the lessee’s right to assign the lease has been shown but the evidence is not such as to satisfy the registrar as to the two points above.

6.3.3 Qualified titles Qualified titles are rare. They cannot be applied for unless Land Registry has refused to grant a superior title. They may be granted if the registrar is of the opinion that the applicant’s title to the estate has been established only for a limited period or subject to certain reservations that cannot be disregarded (s.9(4), LRA 2002). An example would be where the title depended on a transaction that appeared to be in breach of trust. The title would then be qualified so as to preserve any interest of the beneficiaries of the trust.

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Where leasehold titles are concerned, we will grant qualified title if we think that either the applicant’s title to the estate, or the lessor’s title to the reversion, has been established only for a limited period subject to certain reservations that cannot be disregarded under s.10(5), LRA 2002.

6.3.4 Possessory titles Possessory title may be granted for freehold estates under s.9(5), LRA 2002 and leasehold estates under s.10(6), LRA 2002 if the registrar is of the opinion that: — the applicant is in actual possession of the land, or in receipt of the rents and profits of the land, by virtue of the estate, and — there is no other class of title with which they may be registered.

An estate owner with a limited or no documentary title may still be registered with possessory title.

6.4 Titles based on assents Under s.36(7), Administration of Estates Act 1925, a purchaser may accept an assent by a personal representative in respect of an unregistered legal estate as sufficient evidence that the assentee is the person entitled to have the legal estate conveyed to them, unless notice of a previous assent affecting that legal estate has been placed on or annexed to the probate or letters of administration. However, the registrar does not have the protection conferred by this provision on an application for first registration.

Any application for first registration based on an assent should, therefore, be accompanied by a copy of the will, or a statutory declaration showing that the estate owner became entitled on the intestacy of the deceased. If the position is affected by a deed of variation, deed of family arrangement or court order, a copy of that should also be lodged.

6.5 Title to appurtenant easements You must not only show title to land being registered but also to any appurtenant easements. We will normally make no entry of the benefit of easements unless we are satisfied as to the title to them. However, there is usually no need to show any earlier title to appurtenant easements that are created or transferred by the root deed.

Title to the easement must be shown even where the servient land is registered and the easement is noted in the register. This notice does not guarantee the validity of the easement (s.32(3), LRA 2002) and we cannot rely on it as evidence of title. Where the servient land is registered and the easement is not already noted in the register, we can still enter it as appurtenant on first registration if we are satisfied that it exists. However, we will normally need to note the burden of the easement on the servient title at the same time.

If the easement was granted on or after 13 October 2003 over land that was registered at the time, you will need to apply for registration of the easement on that title, using form AP1, before we can note the burden or enter the benefit (r.90, LRR 2003). In other cases, you do not need to make a specific application.

6 S.4(6), Land Charges Act 1972. For the position in relation to land charges of other categories In all cases where we propose to note the burden of the easement on the see the provisions of that section. servient title, we will serve notice on the registered proprietor, and 7 Ss.1(1)(c) and 2(c), Local Land Charges Act 1975. normally on any chargee, before doing so. However, you will need to 8 S.10(1), Local Land Charges Act 1975. supply evidence of the consent of any registered chargee whose charge 9 Paragraph 6 of Schedule 1, LRA 2002. If such covenants appear on the title they will be noted already existed when the easement was granted. You will also need to in the register. comply with any restriction, if the servient land was registered when the 10 Ss.1(1)(c) and 2(c), Local Land Charges Act 1975. easement was granted.

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6.6 Land charges void for non-registration at the Land Charges Department If you are claiming that a post-1925 restrictive covenant or other incumbrance is void for non-registration and therefore should not be noted in the register, raise the matter in a covering letter and supply the necessary evidence. Note that a restrictive covenant, that is unprotected by registration at the Land Charges Department, is nevertheless binding on the estate owner where there has been no intervening purchase for money or money’s worth of the legal estate affected by the covenan t6.

You should also note that the Land Charges Act 1972 does not apply to a land charge created by an instrument that conveys, grants or assigns an estate in land and affecting that estate, if the instrument was executed on or after 27 July 1971 and gives rise to compulsory first registration (s.14(3), Land Charges Act 1972). It follows that purchaser’s restrictive covenants, etc, in such an instrument are not void for non-registration at the Land Charges Department.

So where, for example, a purchaser’s restrictive covenant appears in a transfer on sale dated 4 August 1971 and has not been registered at the Land Charges Department, it is necessary to check the date on which first registration became compulsory. If the date is earlier than August 1971, the covenant is not void for non-registration.

For dates of compulsory first registration in each administrative area, see Practice Guide 51 – Areas served by Land Registry offices .

You should note the following points when preparing the evidence in support of a claim that a land charge has become void for non-registration at the Land Charges Department. — You must provide a clear Land Charges search certificate in the name(s) of the relevant estate owner(s), including any former names or variations. — Your search must cover the whole period of ownership of each of the estate owners to which it relates. Where an estate owner has died, it should also cover the period from the death to the next transfer for value. A search where the priority period expired before the date of a transfer, that it is claimed took effect free from the land charge, is clearly unacceptable. — The search must correctly state the county and any former counties. — Under the Land Charges Act 1925 (repealed), restrictive covenants in favour of a local authority could be registered either at the Land Charges Department or as local land charges (s.15(1), Land Charges Act 1925 (repealed)). Since 1 August 1977 the two categories are mutually exclusive, and restrictive covenants binding on successive owners of the land affected by reason of their being made for the benefit of land belonging to the local authority are no longer classed as local land charges. Therefore, if you apply to register land free from 11 When the interest acquired is an underlease, the class of title will depend on how the a restrictive covenant in favour of a local authority in a deed dated certificate in form PSD3 has been completed. before 1 August 1977, Land Registry will need to see a clear local land 12 See Part V, Housing Act 1985 and the Housing (Extension of Right to Buy) Order 1993. charge search as well as a clear land charges search. 13 See as to the preserved right to buy, s.154, — A restrictive covenant made with a local authority on or after 1 January Housing Act 1985 as applied by the Housing (Preservation of Right to Buy) Regulations 1993; 1926 and enforceable against a purchaser by virtue of a special as to disposals subject to the preserved right to statutory provision, rather than by virtue of the general law, is a local buy, paragraph 2(4) of Schedule 9A, Housing 7 8 Act 1985 as applied by those regulations; as to land charge and as such cannot be void for non-registration . It is an the repurchase of defective housing, paragraph overriding interest until protected on the registe r 9. The same applies to 17(2) of Schedule 20, Housing Act 1985, as to voluntary disposals, s.133(8), Housing Act a restrictive covenant made with a minister of the Crown or 1988; as to Housing Action Trust sales, s.81(9) government department on or after 1 August 1977 and enforceable and (11), Housing Act 1988; as to sales by the 10 Development Board for Rural Wales, ss.172-3, against a purchaser by virtue of a special statutory provision . Local Government and Housing Act 1989 and — If any of the land falls within the former North, East or West Ridings of New Towns (Transfer of Housing Stock) Regulations 1990. Yorkshire and the land charges search relied on is dated prior to 1 April 1976, the search may not reveal land charges registered at the 25 Land Registry Practice Guide 1 Sept 2009

relevant Yorkshire deeds registry (or if it is a search in the Yorkshire deeds registry land charges register, at the Land Charges Department). In this situation, you should make a further search at the Land Charges Department. — Any correspondence with the Land Charges Department must be lodged.

6.7 Land that has been in the same ownership for a considerable time Where land has not changed hands for centuries it may be impossible to deduce title in the normal way because the applicant has no satisfactory documents of title. In extreme cases there may be no record at all of the circumstances in which the land was acquired.

Applications where full documentary title cannot be produced are provided for by r.27, LRR 2003. You must lodge evidence: — satisfying the registrar that the applicant is either entitled or required to apply for first registration — where appropriate, accounting for the absence of documentary evidence of title.

In cases involving ancient possessions, where the deeds (if any) cannot be easily identified or do not clearly identify the land, you must lodge a statutory declaration in support of the application.

Information should also be provided as to whether or not the applicant is either in occupation of the land or receiving any rents and profits from it.

Individual arrangements for certificates of title may be considered for charities and other large landowners who can provide reliable information on title.

6.8 First registration based on dispositions by the Crown and the Duchies of Lancaster and Cornwall S.80, LRA 2002 lists those dispositions by the Crown that are subject to compulsory registration. For dispositions by the Royal Duchies, the normal provisions of s.4, LRA 2002 apply.

You should lodge applications based on dispositions by the Crown or Duchies in the normal way, using form FR1 and form DL in duplicate.

We will not normally expect you to have any deeds deducing title other than the grant by the Crown or the transfer by the Royal Duchy. If you do hold any affecting deeds and documents, however, you should include them with your application so that we can extract any matters affecting the title that need entry in the register.

You will need to supply land charges searches against the Crown Estate Commissioners, the Sovereign, the Duchy of Cornwall and/or the Duchy of Lancaster, as appropriate. For information about the special arrangements 11 When the interest acquired is an underlease, the class of title will depend on how the for ordering these searches, see Practice Guide 63 – Land Charges – certificate in form PSD3 has been completed. Applications for registration, official search, office copy and cancellation . 12 See Part V, Housing Act 1985 and the Housing (Extension of Right to Buy) Order 1993. 13 See as to the preserved right to buy, s.154, 6.8.1 Foreshore Housing Act 1985 as applied by the Housing (Preservation of Right to Buy) Regulations 1993; If the land you are applying to register comprises or includes foreshore, or as to disposals subject to the preserved right to abuts Crown foreshore, we will serve notice on the Crown Estate buy, paragraph 2(4) of Schedule 9A, Housing Act 1985 as applied by those regulations; as to Commissioners and, where appropriate, on the Royal Duchies and the Port the repurchase of defective housing, paragraph of London Authority (r.31(1), LRR 2003) before we complete the 17(2) of Schedule 20, Housing Act 1985, as to voluntary disposals, s.133(8), Housing Act registration. 1988; as to Housing Action Trust sales, s.81(9) and (11), Housing Act 1988; as to sales by the Development Board for Rural Wales, ss.172-3, You should lodge any agreement as to the operation of accretion and Local Government and Housing Act 1989 and diluvion, together with any necessary consents (r.123(1), LRR 2003), the New Towns (Transfer of Housing Stock) Regulations 1990. terms of which we shall enter in the register under s.61(2), LRA 2002.

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6.8.2 Escheat If you are applying to register an estate where a previous freehold estate has reverted to the Crown or Duchies on escheat, you should apply as normal using form FR1 and form DL in duplicate. The grant or transfer will recite the details of the escheat, including the title number, if the determined estate is registered. Subject to serving notice on the registered proprietor of the determined estate, we will register the applicant as proprietor of a new freehold estate and close the title of the determined estate. The new estate will be subject to all the incumbrances that previously affected the determined estate, unless you are able to lodge evidence to the contrary, such as a court order or evidence that they are unenforceable.

6.9 Purchases by tenants of public housing, purchases of housing estates etc and repurchases of defective housing Absolute, or in certain cases, good leasehold 11 title is granted without any examination of the vendor’s or lessor’s title in the case of purchases under the ‘right to buy’ scheme or its extension 12 , and in certain other cases for which statutory provision has been made 13 . In these cases a certificate of title will be provided in one of the following forms.

6.9.1 Right to buy/right to a shared ownership lease — PSD1 On conveyance of the freehold of a house. — PSD2 On the grant of a lease of a flat or a shared ownership lease of a house or flat where the landlord owns the freehold. — PSD3 On the grant of a lease of a house or flat where the landlord does not own the freehold. — PSD16 On conveyance of the freehold of a house to a secure public sector tenant even though the immediate landlord owns only a leasehold estate and not the freehold.

6.9.2 Preserved right to buy — PSD13 On the conveyance of the freehold of a house. — PSD14 On the grant of a lease of a flat where the landlord owns the freehold. — PSD15 On the grant of a lease of a house or flat where the landlord does not own the freehold.

6.9.3 Disposal subject to preserved right to buy/voluntary disposal with consent of the Secretary of State/disposal by Housing Action Trust or the Development Board for Rural Wales — PSD17 On the conveyance, lease or assignment of housing land or buildings. Further information on lodging these applications may be found in Practice Guide 47 – Transfers of public housing estates .

Where one of the above certificates is provided, you must ensure that the certificate is properly completed and signed. Land Charges Department searches are not required. The property will be registered subject only to the incumbrances mentioned in the certificate or in the deed inducing registration, and those created by the applicants.

6.9.4 Repurchases of defective housing — PSD11 Freehold dwelling. — PSD12 Leasehold dwelling.

Where one of these certificates, properly completed and signed, is provided by the applicant authority the property will be registered subject only to the incumbrances mentioned in the certificate and any incumbrances created by the applicant authority on or after the date of the certificate. Land Charges Department searches need not be lodged. 14 See ss.3 and 6, Law of Property (Miscellaneous Provisions) Act 1994.

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6.10 Short titles Sometimes a contract for sale provides for title to be deduced from a root deed less than 15 years old. Such a title might be offered where, for example, the vendor is a donee and holds no title deeds other than the deed of gift. Land Registry is unlikely to grant an absolute or good leasehold title in such circumstances.

6.11 Enquiries in advance of an application Enquiries about practice may be made at any time and at any Land Registry office. However, until the formal application is made, accompanied by the appropriate deeds and documents and the appropriate fee, Land Registry cannot express any opinion about a particular title.

Except where the registrar has additional requirements, the title should be prepared for first registration as if you were preparing it for examination by a purchaser. You should give full information on any points that a well- advised purchaser would raise requisitions about. The possibility that Land Registry may already know the title or part of it should be disregarded unless the vendor produces written evidence of a special arrangement. 7 Forms of transfer inducing first registration

7.1 Use of a Land Registry transfer or assent A conveyance of unregistered land must be made by deed, but the form of deed is largely immaterial, as long as it is clear and contains all the provisions that are necessary to give effect to what the parties have agreed. Hence, a conveyance (including one giving effect to a partition of unregistered land among the beneficiaries of a trust of land or one that is made in consequence of the appointment of a new trustee) or an assent that will lead to compulsory first registration can be made either in the traditional form, or by using the appropriate Land Registry form of transfer. The appropriate Land Registry form of transfer can also be used where a new trustee is being appointed and the unregistered land is being expressly transferred to the new and continuing trustees in the same deed. See Practice Guide 24 – Private trusts of land – 8.2 Appointment and discharge of trustees for more detailed information about the forms that can be used on the appointment of a new trustee.

A Land Registry transfer is particularly useful for a sale of land free from incumbrances. In other cases, since there is no title register, either the incumbrances must be mentioned in the transfer or the title guarantee must be modified 14 . A suitable modification would be:

“This transfer is made with full title guarantee but the covenant set out in section 3(1) of the Law of Property (Miscellaneous Provisions) Act 1994 does not extend to the incumbrances (other than monetary charges, if any) appearing on the title.”

7.2 Transfer and assent forms There are various forms for transfers and assents of whole and part titles. They may be used for transfers that will cause compulsory registration as well as transfers of registered land. The forms are:

Forms TR1, TR2 and TR5 Use these forms for transfers of the whole of the land in one or more titles. TR2 is for a transfer by a mortgagee in possession. TR5 is an alternative to TR1 for use when transferring a portfolio of titles (registered or unregistered).

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Forms TP1, TP2 and TR5 Use these forms for a transfer that comprises or includes part only of the land in a title, or where the transferor retains mines and minerals or transfers mines and minerals while retaining the surface land. TP2 is for a transfer by a mortgagee in possession. TR5 is an alternative to TP1 for use when transferring a portfolio of titles (registered or unregistered) that includes part titles.

Form AS1 Use this form for an assent of the whole of the land in one or more titles.

Form AS3 Use this form for an assent that comprises or includes part only of the land in a title.

Further details of how to use and complete Land Registry disposition forms may be found in Practice Guide 21 – Using transfer forms for less straightforward transactions and Practice Guide 46 – Land Registry forms .

7.3 Vesting of land in new trustees of an existing trust on the death of a sole or last surviving trustee Where land is held by personal representatives of a sole or last surviving trustee of a continuing trust of land, a conveyance, transfer or deed of appointment should be used to vest the land in the new trustees, all of which will, if dated on or after 6 April 2009, trigger compulsory registration. The use of an assent in these circumstances (whether in a Land Registry form or not) is incorrect. 8 Dealings with land before first registration is completed

Sometimes an unregistered estate that has become subject to compulsory first registration (because of a qualifying transfer, lease or mortgage) needs to be dealt with again before registration has been applied for.

This is possible, but the LRA 2002 will apply to the later dealing or dealings as if the estate were already registered under r.38, LRR 2003.

So Land Registry forms must, where applicable, be used for later dealings, and the registration requirements set out in s.27 and Schedule 2, LRA 2002 must be met.

You can apply to register the later dealing(s) either at the same time as the application for first registration or subsequently. You cannot apply before the first registration application has been made. If the first registration application is cancelled for any reason, any application to register the later dealings will also be cancelled.

The following sections explain how disponees who are in this position can apply for registration, and what they can do, if necessary, to protect their interests by other means.

8.1 Dealing is a transfer 15 This is the combined effect of s.27 and Transferees have a choice. They can either: paragraph 3 of Schedule 2, LRA 2002 and r.38, LRR 2003. — insist that a transferor who is required to apply for first registration 16 Care should be taken to register the mortgage under s.6(1), LRA 2002 does so, and then lodge their own application in the name of the estate owner. Where the transfer to the estate owner is one to which s.6, (in form AP1) at the same time or later, or LRA 2002 applies and the legal estate appears — apply for first registration themselves, which they are entitled to do to have reverted under s.7(1), LRA 2002 it will be advisable, in view of s.7(2), to register in because s.6(1), LRA 2002 allows the application to be made by the both names – the revertee’s and the mortgagor’s. successor in title of the estate owner who first became liable to make it.

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If the transferees are satisfied with the title offered, it will often be best for them to make the application themselves. They should apply in form FR1, showing themselves as the applicants in panel 6. See the current Land Registration Fee Order for the fee payable for first registration. You should note that where application is made using forms FR1 and AP1, separate scale fees are payable for each transaction.

If more than two months have elapsed between the event that triggered compulsory registration and the date of application, the transferee will be an ‘interested person’ who is entitled to apply to the registrar for an extension to the period for registration under s.6(5), LRA 2002.

Whichever method is adopted, a transfer that takes place after the requirement for first registration has arisen must be in the appropriate Land Registry form.

8.2 Dealing is the grant of a lease Lessees are not successors in title to their lessor’s reversionary estate, so they cannot apply to register it. If the lessor is required under s.6(1), LRA 2002 to apply for first registration of their estate, and the lease is of a kind that will need to be registered (see s.27(2)(b), LRA 2002), the intending lessee should insist that the lessor applies for first registration before the lease is completed.

Until the lessor’s estate is registered, the lease cannot be registered. The grant of the lease is a disposition that does not pass the legal estate until the registration requirements are met. Those requirements cannot be met until the lessor’s title has been registered, so that the lease can be noted as an incumbrance in its register 15 .

The lease cannot be registered voluntarily under s.3(2), LRA 2002 because there is no legal estate.

If the lessor does not apply to register their own title within the two-month period, the lessee cannot prevent the lessor’s legal estate, and their own, becoming void under s.7(1), LRA 2002.

In these circumstances the lessee may protect their interest by: — applying for a caution against first registration (s.15(3), LRA 2002 does not prevent this, as the lessee does not have a legal estate), and — registering a class C(iv) land charge.

8.3 Charges

8.3.1 First legal mortgage The mortgagee should ensure that the mortgagor applies for registration of the land in the name of the mortgagor and for its mortgage to be registered as a charge. If necessary, the mortgagee can make an application in the name of the mortgagor for the estate charged by the mortgage to be registered without the consent of the mortgagor (see s.6(6), LRA 2002 and r.21, LRR 2003).

8.3.2 Puisne mortgage (second charge) by the estate owner of unregistered land The mortgagee should obtain the necessary priority for its charge by making an official search at the Land Charges Department. If it is not in a position to ensure that an application for first registration of the land (and its own charge) is made within the priority period of its search, it should protect its interest by registering a class C(i) land charge 16 .

The mortgagee can also register a caution against first registration. Though the caution will not give it any priority against subsequent 30 Land Registry Practice Guide 1 Sept 2009

dealings, it will ensure that it is notified when an application for first registration is made, so that it can then apply to register the charge.

8.4 Other dealings If a transaction other than a transfer, lease or charge (such as the grant of an easement) is affected by r.38, LRR 2003, then: — we cannot register it, guarantee the benefit of it or note it (as appropriate) until application for first registration is received, and — it will then require a separate dealing application and fee (unless covered by an abatement).

It can be protected in the interim by a caution against first registration or, in some cases, such as where there is an equitable easement, by registration of a land charge.

8.5 Reservation of a sale of part Vendors who have reserved to themselves a legal easement generally need take no action as their interest will automatically be noted in the register on first registration of the servient land. If the rights are overlooked by the examiner they will continue to bind the registered proprietor as overriding interests. In a few instances, however, the overriding status of these rights may be lost on a subsequent transfer of the servient land.

8.6 Dealings with land in the course of registration We cannot supply an official copy of the register until the registration has been completed. A person dealing with the estate owner should therefore investigate the title as if the land were still unregistered.

You may secure priority for such a dealing by means of an official search. Use form OS1 for searches affecting the whole of the pending first registration and form OS2 for searches of part. Describe the search as ‘Pending first registration search’ in the relevant panel of the search form. The search will disclose, among other things, details of any applications or official searches with priority pending against the title. 9 Enquiries and comments

If you have a particular concern that is not covered by this guide, please contact Land Registry in advance of the transaction – see the Contact details panel on the front cover of this guide. If the transaction is particularly complex, it may be better if you make your enquiry in writing at the Land Registry office that will process your application.

If you have any comments or suggestions about our guides, please send them to:

Registration Change Group Land Registry Lincoln’s Inn Fields London WC2A 3PH (DX 1098 London/Chancery Lane)

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Information in this guide Land Registry The information in this publication is Remember for the purpose of providing general advisory policy guidance about Land Registry's — Have you lodged a fully procedures and policies. It is intended completed and signed form We offer advice to our customers only as a guide and does not cover FR1? through our publications and every situation that may arise. It also enquiry services and through the does not limit Land Registry's ability — Have you lodged all the day-to-day handling of applications. to use its discretion when appropriate documents of title and listed to do so, within the land registration these on form DL (in We provide factual information legislation. duplicate)? including official copies of registers, title plans and documents, searches — Can we precisely identify the and details of our forms and fees. extent of the land from either a plan or the postal address? We provide procedural advice to explain how the land registration — Have you enclosed the correct system works and how to make fee? applications correctly. This includes: — advice in advance of an — Have you enclosed any application, where this is appropriate Land Charges requested Department searches? — where an application is defective, advice as to the — Where the applicants are joint nature of the problem and what proprietors, have you indicated options, if any, are available to whether they are beneficial put it right joint tenants or tenants in — an approval service for estate common? layout plans and certain other land registration documents. — Have you supplied the address for service of the applicant for There are limits to the advice that entry in the register? we will provide. We will not provide legal advice. — Important: please check clerical details in all forms and deeds This means that: (especially charges and — we will not approve the mortgages) and pay particular evidence to be produced in attention to all dates, property support of a registration descriptions, title numbers and application before we receive full names of parties, especially the application where they appear in more — apart from procedural advice, than one deed. we will not advise on what action to take Please note that Land Registry may — we will not recommend a be unable to process applications professional adviser but can that are incomplete or defective explain how to find one. and your application will risk losing its priority if we have to return it to We provide advice only about real you – see Practice Guide 49 – cases, not about theoretical Return and rejection of applications circumstances. We will not express for registration . a view on questions where the law is complex or unclear except where the question arises on a live Peter Collis registration application. Chief Land Registrar

In providing this factual information © Crown copyright 2009 Land Registry and procedural advice we will: Not to be reproduced without permission from The Forms Unit, Land Registry (under the delegated — be impartial authority from the Controller of HMSO), Lincoln’s Inn — recognise that others may be Fields, London WC2A 3PH affected by what we say Designed and produced by: — avoid any conflict of interest. Land Registry, Head Office Corporate Publishing, Lincoln’s Inn Fields, London WC2A 3PH

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