Anonymous: I work for a highway authority and am not a legal representative, this question is just for my understanding.
The highway authority has already undertaken a drainage scheme on 3rd party private land to alleviate flooding from the highway to a private dwelling. The highway authority now requires an easement over the private 3rd party land to undertake future maintenance to desilt pipes and the cleaning of debris from catchpits.
However, the highway maintainable at public expense is unregistered at the point of entry for the proposed easement. Would the highway authority need to prove ownership to HMLR? How can this be achieved if the Highway Authority has no evidence of title, or a conveyance or a highway order even though the live highway has been in existence since according to the OS Maps before 1888.
Due to time constraints, how can the highway authority register the easement without having to undertake the first registration process?
Adam: It is not necessary to register the highway land in order to record the burden of an easement against a registered servient title. However in the event that you did seek voluntary first registration of the highway land, HM Land Registry does consider applications where title is based on statutory vesting such as S263 Highways Act 1980 and this may be something which you wish to explore further.Anonymous: I am acting for the executors on the sale of a house and garage that was also owned by their late parents. The garage was originally freehold, despite being located in a block with garages below and flats above. About four years ago, the deceased agreed to sell the freehold back to the landlord, in return for the grant of a 999 year lease. Both were completed and the TR1 of the freehold has been registered and the title number for the old freehold garage has been closed. The Lease was not registered. I am trying to locate the original part signed by the Landlord and can that then be registered straight into the names of the executors, or not as the granting of the Lease triggered compulsory registration and that was not done within two months of completion? If that is not an option, as it is now an equitable Lease can that be assigned to the Executors then the assignment registered?
Adam: You appear to suggest that you intend to apply for first registration of the 999-year lease of the garage and that the lease was compulsory registerable. If that is the case, you will need to refer to practice guide 1: first registrations before making any application.
In particular, section 4.1: who can apply sets out who can apply to be registered as proprietors, including executors. Section 4.7 provides information on time limits and the two-month period to which you refer, including the possible options available which will vary on the facts of the case.
You may also wish to refer to practice guide 25: leases – when to register for additional information on making applications to register leases.
Anonymous: If there is a Form A restriction on the title and both registered owners have died, what is the process to remove the restriction?
Adam: When all of the registered proprietors have died and the registered title is subject to a Form A restriction, the action to take will depend on how the personal representatives of the last surviving proprietor deal with the property.
If the property is to be transferred for money by the sole personal representative, the Form A restriction will prevent the registration of the transfer. The transferor may need to appoint an additional trustee to act with them give a valid receipt for the purchase money. Section 6 of practice guide 21: using our forms for complex and less straightforward transactions sets out the procedure for appointing trustees for this purpose. Alternatively, the personal representative can apply to cancel the restriction (see below). If the property is transferred for money to a third party by two or more personal representatives, the Form A restriction does not prevent the registration of that transfer, any interests protected by the restriction will be overreached and the restriction is automatically cancelled on registration of the transfer.
If the personal representative(s) transfer/assent the property to the beneficiaries, the Form A restriction will not prevent the registration of that transfer but it does not overreach any interests and the restriction will remain on the register in the absence of any application to cancel the restriction.
If the beneficial interests protected by the restriction have come to end and you wish to cancel the form A restriction ahead of any transfer, the personal representative(s) of the last surviving proprietor can apply to cancel the restriction in Form RX3 together with the appropriate supporting evidence. Section 8 of practice guide 6: devolution on the death of a registered proprietor contains further information on making the application. Anonymous: We have been instructed in a matter whereby a property is registered in the joint names of husband and wife as tenants in common. Husband has passed away and left his beneficial interest to his two sons. The sons have obtained probate and are both named as personal representatives. Wife lacks capacity and sons have an LPA (joint and several). Are the two sons able to register the property in accordance with husband's Will by way of them signing in their capacity as both personal representatives of husband/dad and attorneys of wife/mum? We frequently find that HMLR insist that an individual cannot sign a Transfer in more than one capacity, but only last week did process an application whereby a property was sold by an individual in both his own capacity as a registered proprietor and also in his capacity as attorney for the other registered proprietor. The constant inconsistency is getting confusing.
Adam: When there are two or more legal owners, and one dies, the property does not form part of the deceased persons estate. At HM Land Registry, we only record details of the legal ownership, and the legal ownership passes to the other surviving legal owners when one dies (in the example you give, the wife/mum would be the sole surviving legal owner).
This means that the executors of the deceased’s estate would not deal with the property in this scenario – only when the last surviving proprietor dies would their personal representatives deal with the property. Practice guide 6, section 4: death of a joint proprietor of a registered estate or of a charge or mortgage covers this in more detail.
The sons may of course act in their capacity as their mum’s attorneys to deal with the property as necessary, but they would not deal with the property in their capacity as their dad’s personal representatives, in the given scenario. Practice guide 9: powers of attorney and registered land may assist.
The matter of attorneys acting when a person is both a legal owner and an attorney for another legal owner can be complex, and the presence of certain restrictions in the register also need to be considered – practice guide 9, section 4: joint proprietors: receipts for capital money will assist. Anonymous: We are dealing with a matter where it appears the trustees under a discretionary will trust have been registered at the Land Registry as the legal owner some 15 years ago. The property was held as joint tenants and husband died 15 years ago so the surviving wife should instead have remained on the register with a form A restriction and a trustee restriction to protect the beneficial interests pursuant to the will trust etc. We would propose to apply to the LR to correct this by way of a transfer not for value from the trustees (one of which is the surviving wife) to the wife in her sole name with Form A and trustee restrictions instead. Would this be an appropriate route to remedy the matter?
Adam: If all the legal owners (all the registered proprietors) are in agreement, they can complete a transfer to a chosen party, whether for value or not. Any Form B restriction (or any other restriction that catches a transfer) will need to be complied with, but a Form A restriction does not catch transfers not for capital money.
If the transfer is not for monetary value, any existing Form A or Form B restrictions will remain on the register unless an application to remove them is made.
If other restrictions are to be applied for, please refer to practice guide 24: private trusts of land for guidance. Any new restriction required should be applied for in the usual way.
We can’t give specific advice for individual applications, however, and any application will need to be considered on its own merits when lodged for registration.
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