Michelle O’Shea, Michelle O’Shea & Co: I
have a client who is the original lessee to a 1984 Lease of a garage. The Lease
was granted for 99 years and client has the original Lease. However, it appears
that this was never submitted to the Land Registry for registration and the
freeholder is now different to the freeholder at the time of grant of the
Lease. I am minded to submit the Lease for registration now in the hope that
the Land Registry will process the registration. Am I likely to have to provide
anything other than a certified copy of the original Lease?
Adam: It is unclear whether the freehold was
registered at the date of the grant of the lease.
If the freehold was registered in 1984, a subsequent
purchaser for valuable consideration may have taken free of it (s29 Land
Registration Act 2002). If so, we could not register the lease. If there has
been a transfer for value since the grant of the lease, you will need to
provide evidence to show how the tenant’s interest was protected (within the
meaning of s29) at the relevant time. Often this will require evidence such as
a statutory declaration or statement of truth confirming the applicant was in
actual occupation (or the lease otherwise comprised an overriding interest) at
the relevant time(s).
If the freehold was unregistered in 1984, whether the lease
required registration will depend on the location of the property. HMLR
introduced compulsory registration on a regional basis. Section 8 of practice
guide 1: first registrations contains a list of when various areas became subject to compulsory
registration.
If the lease was subject to compulsory registration but was
not so registered, it will be void (s123(1) Land Registration Act 1925).
However, if there is good reason to do so, HMLR has discretionary power to
extend the period for registration (s6(5) Land Registration Act 2002). If this
is the case, you should supply a covering letter with your application
explaining the reasons for the failure to register to assist us in deciding
whether to exercise the statutory discretion.
If the freehold remains unregistered and the applicant
requires absolute leasehold title, they must provide evidence of the landlord’s
title with their application. If you cannot, we can only award good leasehold
title.
If the freehold has subsequently been registered, then the applicant for
first registration should have provided HM Land Registry with the counterpart lease signed
by the tenant. If they did, we will have noted it on the register. If such a
note remains on the register, it will protect the priority of the lease for the
purposes of s29 Land Registration Act 2002. If so, we will not need evidence
that the lease bound subsequent purchasers. If there is no such note and there
have been dispositions of the registered estate for valuable consideration,
then we may need the evidence mentioned above to ensure the lease bound the
later owner.Anonymous: We have a situation whereby an English property
(Property) is held by a sole Nominee company (incorporated in Jersey) on trust
for another overseas company. Our client bank is looking to take security (by
way of legal mortgage) over the Property.
On registration of the legal mortgage (from a practical point
of view) what would the Land Registry need to see in order for a Form A
restriction to be overreached, and for the legal mortgage to be registered
against the title to the Property (given that the Property is held by a sole
trustee, which cannot be a "trust corporation", as it is a
Jersey-based company)? Note we would not be looking for the Form A restriction
to be removed.
Adam: The proprietor must either:
appoint a new trustee to act jointly to give a
valid receipt for the capital money; or
deduce the equitable title to show that, despite
the terms of the restriction, the trust of land has come to an end
and the registered proprietor can deal with the land including using
the title to secure a legal charge.Anonymous: As a business we try to look at trends as
well as the statistics in Requisitions we are being sent in a view to lower the
number of Requisitions. Why are Requisitions that turn out to be a HMLR error
still included? For example I had one instance of a 4 point requisition and
each query should not have been asked the information was already provided.
Once pointed out the case handler completed the case. HMLR make errors too, we
are all human yet HMLR errors are also included in our company stats, as
technically a requisition was issued even if it wouldn't have been if the whole
case was looked into and more attention to detail was taken.
Is there are way to make this stop? As currently the figures
don't differentiate.
Adam: No, I’m afraid it isn’t possible to remove incorrectly
raised requisitions from this data. We do explain in the currently published
data that it will include some requisitions that should not have been raised.
Also, we acknowledge that we need to play our part in minimising the number of
times we send requisitions that don’t need to be raised. To that end, we are
conducting regular checks and feeding back to colleagues as needed where there
are lessons to be learned while at the same time looking to our customers to
play their part in reducing the 600,000 avoidable requisitions that we send
every year.
We were sorry to hear of the case
where we raised four requisitions incorrectly in one application. We hope that
is an isolated occurrence, but if not we’d be happy to engage with you directly
to investigate what’s going wrong.
