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Welcome to issue 35 of Practice and Process. The wait is over for the answers to our New Year land registration quiz. How well did you do?

Stuart Gilchrist, Plotholders Land Management Group: In a tenants in common situation we are aware that the survivor has to appoint a trustee to replace the deceased joint owner. In a current case, parents were owners and father has died. Mother had an LPA for father, but she has appointed son and daughter as joint LPAs for herself. The executors for father are all three of them. The disposal of the land plot is not specifically stated in father's will. Is it sufficient if the TR1 in Panel 11 to simply state "So that the transferor can give a good receipt for the purchase price, I, Joanne S........... in exercise of her statutory power as attorney for Anne S........ appoints Jason S............to be a trustee of the property with Anne S............ in place of David S.............."

The names in Panels 4 and 12 would be "Joanne S as LPA for Anne S......... and Jason S........... as Trustee.

Does the fact that both children are LPAs for mother preclude the above declaration, and would this mean the new trustee would have to be a different party altogether?

I imagine that the TR1 would need to be accompanied by the LPA for mother and the death certificate, but would the will be also required? Would HMLR require anything further?

Adam: A sole surviving registered owner does indeed have the option to appoint a new trustee to act with them when transferring land or property registered with a form A/joint ownership restriction. Section 6 of our practice guide 21: using our forms for complex and more unusual transactions offers guidance on the options that exist.

The attorney or attorneys of a sole trustee, in this case the mother either acting personally or by her attorneys (1 or both), cannot give a valid receipt for capital monies and cannot overreach the beneficial interests under the trust. As such an additional trustee must be appointed to act jointly to give a valid receipt for the purchase money If the attorneys are appointed jointly and severally it may be possible for 1 attorney to appoint the additional attorney as a trustee using the wording proposed but you should consider if the terms of the trust contain any prohibition against this and whether the donor had a beneficial interest in the property (see further comments below). If the attorneys are appointed jointly only, consideration must be given as to the appointment of an independent trustee.

Panel 4 of the transfer should be drawn in the names of the legal estate owner and the trustee and should not reference an attorney. The execution clause 12 of the transfer should be worded to reflect the execution of the deed by the legal estate owner by their attorney and to contain the execution by the trustee.

The wording of appointment you are proposing to include in panel 11 is acceptable, provided that the attorney has the power to act severally.

We would, as you state, require certified copies of the mother's LPA and the father’s death certificate. We would not require the will. Form AP1 (or FR1 for unregistered land) would need to be completed with evidence of identity for all parties including the mother. You should also consider any additional restrictions, notices or charges that affect the registered title in the usual manner.

Where the registered legal estate is held as a trustee, a lasting power of attorney dated after 29 February 2000 may be used in relation to trust property if, at the time it is used, the donor of the power owns a beneficial interest in that property, unless contrary intention is shown in the power (section 1(1) of the Trustee Delegation Act 1999).

A written statement by the attorney given within three months of the date of the document confirming that the donor had a beneficial interest in the property is, in favour of a purchaser, conclusive evidence that the power could be used (section 2(2) of the Trustee Delegation Act 1999).

The most convenient place for the attorney to make this written statement will be in the disposition itself. The attorney may include a statement on the following lines in the additional provisions panel of a TR1 or other prescribed form, or in the body of a lease or charge:

‘(Name of attorney) confirms that (donor of the power) has a beneficial interest in the property at the date of this (transfer, charge and so on)’

Alternatively, the attorney may adapt the attestation clause as follows:

‘Signed as a deed by (name of donor of the power), who has a beneficial interest in the property at the date of this (transfer, charge and so on), acting by their attorney (name of attorney) in the presence of …’

Or the attorney may expand the words of signature as follows:

‘John Smith by his attorney Jane Brown who confirms that the donor has a beneficial interest in the property at the date hereof.’

The written statement can be made separately if it is dated within three months of the date of the document.

Anonymous: Where a title perimeter is defined on first registration as being the edge or centre of a watercourse does the perimeter 'move' when the watercourse changes position naturally? Title holder 'A' recently learnt that the title perimeter, which had been accepted as the centre of a watercourse since first registration on mapping from the 1960s was now located up to 3 metres onto the land used by 'A' due to the natural movement of the water and Title holder 'B' (originally owning to the centre of the ditch) now had the complete watercourse and land on both banks.

Adam: Registered information rarely includes sufficient descriptions to enable you to establish the precise position of a legal boundary.

If properties are separated by a natural, non-tidal river or stream, the legal presumption is that the boundary follows the centreline of the water (referred to as ad medium filum aquae). This means each property owner owns up to half of the bed of the stream.

If the course of a stream gradually changes over time due to natural causes (such as erosion or sediment deposition), then the position of the boundary will also change accordingly.

In cases where there is a sudden and permanent change in a stream's course (whether caused by natural events like flooding or human intervention), this does not alter where the legal boundary lies. The boundary remains along what was previously considered as its centreline.

Changes caused by human activity do not lead to an alteration in boundaries unless explicitly agreed upon or determined through legal processes.

Please refer to our practice guide 40, supplement 3: HM Land Registry plans: boundaries for guidance.

Anonymous: I am looking for a historical DJP that would have been submitted to HMLR in 1999 when a proprietor was removed from the title following her death. We have been able to order historical office copies but we cannot find the documents submitted to HMLR to make the change of office copies.

Adam: Historical editions of the register/title plan are available using form HC1.

Official copies of deeds/documents submitted as part of an application are available using form OC2.

If you are unsure as to what historical information we hold then please use our Contact form to submit specific details including the title number. Our support team can then check our paper/electronic records and respond as appropriate.

If we have a DJP form on file, we will confirm and you can submit an OC2 request; otherwise, the support team will confirm we don’t have a copy on file.