Manchester Conveyancing Solicitors | Ford Banks Irwin Solicitors - The Property Lawyers in Manchester for Transfer / Lease of Business Premises
Please note: Not to be used or relied upon without legal advice. These notes are for illustration purposes ONLY
continued from page 7 . . .
Registering a caution against First Registration
Who may apply
The following may instruct Conveyancing Solicitors and Property Lawyers to apply for a caution against first registration:
- Her Majesty in respect of demesne Land
- Any person who claims to be entitled to an interest affecting a qualifying estate
A person should not instruct Conveyancing Solicitors and Property Lawyers to lodge a caution without reasonable cause. If they do, they owe a duty to anyone who suffers damage, and the person adversely affected may bring an action for damages (section 77 Land Registration Act 2002).
A cautioner against first registration is entitled to notice of any application made for the registration of that estate that may affect their interest (section 16 Land Registration Act 2002).
Please note that the Land Registry says that the owner of a freehold estate in Land or a Leasehold estate in Land granted for a term of which more than seven years are unexpired cannot apply for a caution against first registration. A caution is not permitted in these situations because of the prohibition under section 15(3) Land Registration Act 2002. The correct form of protection for an owner of an estate in Property is to apply for substantive first registration. This includes an estate that has been acquired through adverse possession.
Points to note
- The prohibition under section 15(3) Land Registration Act 2002 came into force at midnight on 12th October 2005. Before then it was possible for a Property owner to protect their claim to ownership of such an estate by a caution against first registration, because the prohibition was deferred for two years by paragraph 14 to schedule 12, Land Registration Act 2002.
- any caution against first registration in respect of such an estate registered since 13 October 2003 ceased to have effect at midnight on 12th October 2005 by virtue of paragraph 14(2) of schedule 12 Land Registration Act 2002, except where an application for first registration in respect of that estate was made before this date.
- owners of estates protected by a caution that has ceased to have effect may wish to consider substantively registering their estate.
- cautions against first registration registered under section 53 Land Registration Act 1925 continue to be effective until such time as they are cancelled, withdrawn or the respective estate in the Land is registered. This is because the prohibition under section 15(3) Land Registration Act 2002 does not apply retrospectively. However, in other respects, cautions registered under section 53 Land Registration Act 1925 are treated in the same way as cautions registered under section 15 Land Registration Act 2002 (paragraph 1 of schedule 12 Land Registration Act 2002).
- the prohibition in section 15(3) Land Registration Act 2002 does not apply to demesne Land until midnight on 12th October 2013 (with provision to extend this period further) (paragraph 15 of schedule 12 LRA 002). The right to lodge a caution in respect of demesne Land will apply as if the demesne Land were held by Her Majesty as freehold (section 81 Land Registration Act 2002).
Dealings with Property 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 Land Registration Act 2002 will apply to the later dealing, or dealings as if the Property were already registered under rule 38 Land Registration Rules 2003. To protect the interest of a disponee, a caution against first registration may only be applied for in certain circumstances.
Where the dealing is a transfer
Conveyancing Solicitors and Property Lawyers for the Transferees have a choice. They can either:
- insist that a transferor who is required to apply for first registration under section 6(1) LRA 2002 does so, and then lodge their own application (in form AP1) at the same time or later
- apply for first registration themselves, which they are entitled to do because section 6(1) Land Registration Act 2002 allows the application to be made by the successor in title of the Property owner who first became liable to make it.
- the transferee may not instruct Conveyancing Solicitors and Property Lawyers to apply for a caution against first registration.
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
. . . continued on page 9 (Manchester Conveyancing Solicitors Property Lawyers for Transfer or Lease of Business Premises 9)
Please telephone Paul on 0161 866 8999 if you require any further information.
Ford Banks Irwin Solicitors
50 Stothard Road
Stretford
Manchester
M32 9HB
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