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Manchester Conveyancing Solicitors | Ford Banks Irwin Solicitors - The Property Lawyers in Manchester for Buying / Selling House / Flat / Apartment

Please note: Not to be used or relied upon without legal advice. These notes are for illustration purposes ONLY

. . . continued from page 13

Buying and Selling Property / Land

The examination process and classes of title

Classes of Title

Absolute freehold 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 (section 9(3) LRA 2002). See section: Qualified titles for applications where the examiner is not able to disregard such title defects.

An application based on a first mortgage of unregistered Property, 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.

Absolute Leasehold and Good Leasehold titles
Absolute Leasehold title will only be granted if:
- Land Registry are satisfied that the title to the estate is such as a willing Buyer could properly be advised by a competent professional adviser to accept, and
- Land Registry approve the lessor's title to grant the Lease (section 10(2) LRA 2002).

Land Registry must also approve the title to any intermediate leasehold title that exists. They will not normally grant an absolute title to the Lease being registered unless they 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 Land Registry 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 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 Land Registry practice, and for Leases registered since 19 June 2006, they 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, they 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 Land Registry 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. Land Registry will not check the terms of the head-Lease, nor whether any consent has been given by the correct person.

It is Land Registry's 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 section 99 Law of Property Act 1925 or expressly authorised by the Mortgage, Land Registry 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 alter 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 section 29 LRA 2002.
NB: This practice applies equally to legal Mortgages, 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.

(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)

. . . continued on page 15 (Manchester Conveyancing Solicitors Property Lawyers for Buying and Selling a House 15)

Please telephone Paul on 0161 866 8999 if you require any further information.

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