Guidance

Practice guide 3: cautions against first registration

Updated 8 April 2019

Applies to England and Wales

Please note that HM Land Registry’s practice guides are aimed primarily at solicitors and other conveyancers. They often deal with complex matters and use legal terms.

1. Introduction

A caution against first registration is a form of protection for interests affecting unregistered land. Its effect is to require HM Land Registry to give the person who has applied for the caution – the cautioner – notice of an application for first registration of the legal estate which the cautioner claims is affected by an interest to which they are entitled (and of an application for first registration of certain other estates).

HM Land Registry keeps a register of cautions against first registration, with an individual caution register (and caution title number) for each caution. Each individual caution register consists of:

• the caution property register
• the cautioner’s register

The caution property register contains:

• a description of the legal estate to which the caution relates – in other words, the legal estate which the applicant claims to own or in which they claim to have an interest
• a description of the land affected
• a statement of the cautioner’s claim taken from either a statutory declaration or a conveyancer’s certificate
• a description of any land removed from the caution extent
• if appropriate, an entry stating that the caution was originally lodged under section 53 of the Land Registration Act 1925

The cautioner’s register contains:

• the name of the cautioner together with an address or addresses for service of notice
• the names of any persons who have consented to the lodging of the caution under rule 47 of the Land Registration Rules 2003

2. Registering a caution against first registration

2.1 Who may apply

The effect of section 15 of the Land Registration Act 2002 is that any person who claims to be the owner of (one of the following legal estates):

• an estate in land
• a rentcharge
• a franchise
• a profit a prendre in gross

or to be entitled to an interest affecting one of these legal estates, may lodge a caution against the first registration of title to that estate. These legal estates are referred to as “qualifying estates” in the part of the Land Registration Act 2002 that deals with cautions. The right to lodge a caution against first registration is exercisable by application.

Critically, however, the owner of a freehold estate in land (including a freehold acquired by adverse possession), or a leasehold estate in land granted for a term of which more than 7 years are unexpired, cannot apply for a caution against first registration. A caution is not permitted in these situations because of the prohibition in section 15(3) of the Land Registration Act 2002. The correct form of protection for an owner of such an estate in land is to apply for first registration of their title.

It follows that the trustee in bankruptcy of the sole owner of a legal estate in land cannot apply for a caution against first registration. The legal estate will have vested in them.

It is not possible to provide a comprehensive list of all the interests that can be protected by a caution – these interests are referred to in this practice guide as “cautionable interests”. As a general guide, any matter that can be registered as a land charge, whether or not it has been so registered, is a cautionable interest. This would include an estate contract, an option, an equitable charge, a restrictive covenant, a pending land action within the meaning of Land Charges Act 1972 and a charging order. In addition, such property rights as an easement, whether legal or equitable (including prescriptive easements), and a beneficial interest under a trust of land are cautionable interests.

On the other hand, an application cannot be made by virtue of being a residuary beneficiary, unless the estate has been fully administered and the net residue ascertained: such a beneficiary has no proprietary interest. We will accept an application from a specific devisee, although you should note section 77 of the Land Registration Act 2002, below.

Where compulsory first registration has been triggered and first registration is not applied for within the prescribed period (2 months unless for a particular application a later date is specified in an order by the registrar), then if the trigger was a transfer, the legal title will revert to the transferor who will hold the freehold on trust for the transferee; if the trigger was the grant of a lease, the grantee will merely have an estate contract (section 7(2) of the Land Registration Act 2002). It therefore appears that the transferee or grantee could, at that stage, lodge a caution: they will have an interest affecting a freehold or leasehold estate in land, rather than ownership of the estate. Obviously, however, this will not give them a legal estate, so is not a satisfactory alternative to registration.

Note that a person must not exercise the right to lodge a caution without reasonable cause; they owe this duty to anyone who suffers damage in consequence of its breach: section 77 of the Land Registration Act 2002. So a person adversely affected may bring an action for damages.

2.2 Form of application

You must use form CT1 to apply to register a caution against first registration. This is also available from law stationers.

Panel 1: Enter the authority to whom council tax or business rates would normally be paid in respect of the property.

Panel 2: Give the address, including the postcode, of the land to which the caution relates. If there is not an address, a general description such as “land on the north side of London Road, Whiteoaks” will suffice.

Panel 3: The extent of the land to which the caution relates must be shown on an attached plan or reference must be made to the address given in panel 2: the second option is only available where an address has been given in panel 2 and the land is fenced or has similar boundary features. Whichever option is taken, the extent must be clearly identifiable on the current edition of the Ordnance Survey map (rule 42 of the Land Registration Rules 2003). We shall reject the application if we cannot identify the extent of the land.

Panel 4: Enter the fee payable in accordance with the current Land Registration Fee Order; see HM Land Registry: Registration Services fees.

Panel 5: Give the name of the cautioner – not any conveyancer lodging the application on their behalf. The cautioner must be a legal person, such as an individual or a corporate body. However, although a partnership is not a legal person, a caution in a firm’s name may be lodged. Where the cautioner is a company you must include the company’s registered number.

Panel 6: Complete with the details of the person sending the application – usually a conveyancer.

Panel 7: Specify the qualifying estate – which will be the freehold, a particular lease, a rentcharge, a franchise, or a profit a prendre in gross. In all cases except where the estate is a freehold estate in land, enter full details of the estate, including the date, nature and parties of the instrument by which the estate was created, if known. Also, where the estate is a lease, provide the length of the term; where the estate is a rentcharge, provide the amount; where the estate is a franchise or profit, provide the nature of the franchise or profit.

Where there is to be more than one qualifying estate, you need to make separate applications in form CT1, and pay a fee for each of the estates.

A person with a legal lease with 7 years or less still to run could give as the qualifying estate either the reversionary estate or their leasehold estate. As the concern is likely to be about the registration of the reversionary estate, it would seem more appropriate to specify that estate as the qualifying estate (athough, as explained in The effect of a caution against first registration, HM Land Registry should give notice to this cautioner of any application for first registration of title to the reversion even if the qualifying estate is the cautioner’s leasehold estate).

Panel 8: Each cautioner may give up to 3 addresses for service, one of which must be a postal address but does not have to be within the UK. The others may be a combination of postal addresses, whether or not in the UK, box numbers at a UK document exchange (DX) or electronic addresses. (Rule 198 of the Land Registration Rules 2003.)

Panel 9: Identify the person making the statement of truth.

Complete the appropriate box depending on whether the statement is made by or on behalf of the cautioner, or by a conveyancer acting for the cautioner. Only one of the boxes should be completed.

When completing the box, include the full name of the person making the statement of truth.

Panel 10: Complete the statement of truth briefly by stating the nature of the cautioner’s interest in the qualifying estate as identified in panel 7. For example:

• “the person having the benefit of an option to purchase the property pursuant to an Agreement made between … and dated …”
• “claimant in an action in the Chancery Division of the High Court of Justice, A. v. B., Case No.… in which the claimant claims title to (or an interest in) the land”
• “equitable mortgagee under a charge made by …. in favour of … dated ….”
• “the person with the benefit of a right of way over the land to which the caution relates [granted in a Deed of Grant made between … and dated … ]”

It will normally be possible to state the nature of the cautioner’s interest in just one or two lines. Note that what is written in this panel will be used verbatim in the register.

The person making the statement – whether that is the cautioner, someone making the statement on behalf of the cautioner or a conveyancer acting for the cautioner – must sign it at the bottom of the panel and print their full name and add the date.

No documents in support of the statement of truth are to be attached to the form CT1 or otherwise lodged. The nature of the cautioner’s interest must be set out in the statement itself; it must not be necessary to refer to other documents for this information. For example, a statement to the effect that the cautioner is interested in the estate as ‘set out in the attached document’ or ‘set out in correspondence with HM Land Registry’ is not acceptable and the application will be rejected.

Panel 11: The applicant or their conveyancer must sign and date the form (even if they have signed and dated panel 10).

Panel 12: The names and signatures of anyone consenting to the lodging of the caution must be entered here.

Note: A person who has consented in writing, in panel 12 or in another document produced to the registrar, may not subsequently apply to cancel the caution under section 18(1) of the Land Registration Act 2002 unless one of the exceptions under rule 46 of the Land Registration Rules 2003 applies.

2.3 The effect of a caution against first registration

A caution “has no effect on the validity or priority of any interest of the cautioner” in the qualifying estate (section 16(3) of the Land Registration Act 2002). Instead, its effect is that the registrar is required to give the cautioner notice of, and of their right to object to, any application made for first registration that “relates to” the qualifying estate (section 16(1) of the Land Registration Act 2002).

Note that HM Land Registry will serve notice on a cautioner on receipt of any application for first registration of the qualifying estate or on receipt of an application for first registration of a superior or inferior estate to the qualifying estate. For example, when the qualifying estate is a leasehold estate, notice will be served on receipt of an application to register a freehold estate. However, notice will not be served if it is clear that the registrar is registering an estate granted out of a registered inferior estate. For example, again when the qualifying estate is a leasehold estate, notice will not be served on an application to register a lease or profit a prendre in gross out of what is now a registered underlease. Notice will not be served if the application is for first registration of a relating franchise unless the qualifying estate is a franchise relating to the same subject matter – for example, they both concern rights to hold markets.

Often the objection will not be to the applicant for first registration being registered as proprietor, but rather to registration without an entry being made at the same time in respect of the interest claimed by the cautioner. So, for example, the cautioner may want to ensure that a right of way is the subject of a notice in the new registered title. However, the interest claimed does not have to be one that is capable of protection in the register when title to the qualifying estate is registered – for example, a lease for a term of one year would be a cautionable interest.

2.4 Cautions and dealings with land before first registration is completed

Sometimes, an unregistered estate in land that has become subject to compulsory first registration because of a transfer needs to be dealt with again before the transferee (transferee A) has applied for registration. In such circumstances the Land Registration Act 2002 will apply to the later dealing or dealings as if the estate were already registered (rule 38 of the Land Registration Rules 2003).

The person to whom the estate is transferred (transferee B) or to whom a lease or charge is granted, should require that transferee A applies for first registration under section 6(1) of the Land Registration Act 2002, and should lodge their own application (in form AP1) at the same time or later. Transferee B has an alternative, which is simply to apply for first registration themselves. This is because section 6(1) of the Land Registration Act 2002 allows the application to be made by the successor in title of the estate owner who first became liable to make it. Similarly, where transferee A has granted a charge which is a first mortgage, the mortgagee also has an alternative, which is to apply for registration of the land in the name of the mortgagor and for their mortgage to be registered as a charge (section 6(6) of the Land Registration Act 2002 and rule 21 of the Land Registration Rules 2003). In the meantime, it would seem that none of them – whether it is transferee B, a lessee or chargee – can apply for a caution against first registration, as they will each own a legal estate.

However, if there is no first registration, then at the end of the prescribed period for registration transferee B, the lessee and the chargee would appear to lose their legal title in the same way as transferee A loses his or her title. Transferee B may hold the beneficial interest in the unregistered estate in land that would otherwise be held by transferee A as a result of section 7(2)(a) of the Land Registration Act 2002. It would seem that the lessee’s or chargee’s interest can only be one affecting transferee A’s (or transferee B’s) beneficial interest. Although there is scope for argument as to the entitlement of transferee B, the lessee and the chargee to lodge a caution against first registration, we accept applications for cautions in these circumstances.

If an unregistered estate in land has become subject to compulsory first registration because of the grant of a lease, the tenant may, like a transferee, deal with the lease before it has been registered. The position would appear to mirror that where the trigger is a transfer, except that if there has not been first registration by the end of the prescribed period for registration, an assignee (the equivalent to transferee B) would, like a (sub)lessee or chargee, seem only to have an interest affecting the assignor’s estate contract arising out of section 7(2)(b) of the Land Registration Act 2002. Again, although the correct legal position is unclear, we accept applications for cautions in these circumstances.

This complexity and uncertainty means that failure to apply for first registration of an estate in accordance with the duty under section 6 of the Land Registration Act 2002 carries potentially serious risks for those who purchase the property or take an interest in it, and may cause delay and difficulties on subsequent dealings. So, we strongly advise that the necessary application for first registration is made in a timely fashion.

3. Cancelling a caution against first registration

An application can be made to have a caution title cancelled, effectively clearing the way for substantive registration.

3.1 Who may apply

Either the owner of the qualifying estate, or the owner of a legal estate derived out of that estate (such as a lessee or charge), may apply to cancel the caution title (section 18(1) of the Land Registration Act 2002 and rule 45 of the Land Registration Rules 2003).

A person who has consented to a caution, or a person who derives title under operation of law from a person who consented, cannot apply to cancel it unless either:

• the relevant interest has come to an end
• they claim that the consent was induced by fraud, misrepresentation, mistake or undue influence, or given under duress

(section 18(2) of the Land Registration Act 2002 and rule 46 of the Land Registration Rules 2003).

3.2 Form of application

You must use form CCT when applying for cancellation of a caution title. This is also available from law stationers.

There is no fee for this application.

If the application is to cancel part only of the caution title, sufficient particulars by plan, or otherwise, to allow identification of the extent on the Ordnance Survey map must accompany your application (rule 44(2) of the Land Registration Rules 2003). This is covered in panel 8 of the form.

Complete panel 9 to demonstrate how the applicant for cancellation is entitled to apply. The evidence referred to in this panel must be in documentary form demonstrating title, in line with the provisions of section 44 of the Law of Property Act 1925. If this is not possible, for example if it is claimed the documentary title is lost, then you should set out the circumstances in full so that the matter can be considered.

If you answer ‘Yes’ to panel 10, you must supply the necessary evidence as specified in this panel. We will need only certified copies of deeds or documents you send us with applications. Once we have made a scanned copy of the documents you send to us, they will be destroyed. This applies to both originals and certified copies.

3.3 What happens once the application is made

Provided the application is in order, we will serve notice on the cautioner, and the application will be held in abeyance for the prescribed notice period, in which time the cautioner may exercise their right to object to the application (section 18(3) of the Land Registration Act 2002). Only the cautioner can object (section 73(2) of the Land Registration Act 2002). The prescribed notice period is 15 working days or such longer period as the registrar may allow following a request by the cautioner (rule 53 of the Land Registration Rules 2003).

If the cautioner has not exercised their right to object before the expiry of the prescribed notice period, the caution title will be cancelled (section 18(4) of the Land Registration Act 2002).

If the cautioner does object to the application, we will contact the applicant with the details. The registrar may not determine the application until the objection has been disposed of (section 73(4) of the Land Registration Act 2002).

3.4 Completion

Where the application is successful we will notify you that we have completed it and cancelled the caution title (or part of it). Where part only of the caution title is cancelled we will enclose up-to-date copies of the caution register and plan.

At the same time we will invite the estate owner to apply for first registration of the estate.

4. Withdrawing a caution against first registration

4.1 Who may apply

The cautioner may apply to withdraw their caution at any time (section 17 of the Land Registration Act 2002). Typically this may be because:

• they no longer hold the interest in the estate to which the caution relates
• they are satisfied their interest is adequately protected in some other way
• an application for first registration is being made and they do not wish to impede it
• they are applying for substantive registration themselves

4.2 Form of application

You must use form WCT when applying to withdraw a caution. This is also available from law stationers.

There is no fee for this application.

Only the cautioner may apply to withdraw the caution. If the cautioner has died, the personal representatives must first apply to be registered in place of the cautioner under rule 51 of the Land Registration Rules 2003. They can subsequently apply for withdrawal of the caution in the capacity of cautioner.

If part only of the caution title is being withdrawn the second option in panel 8 will apply and you must supply details, by plan or otherwise, to enable the extent of that part to be clearly identified on the Ordnance Survey map.

4.3 What happens once the application is made

We will not normally serve notice of the application on the cautioner:

• where it has been lodged by a conveyancer, or
• where it accompanies an application for first registration and the cautioner is being registered as proprietor by reason of the first registration application. This applies whether or not a conveyancer lodged the application

However, we will always serve notice on the cautioner:

• where the application, not being accompanied by an application for first registration, has not been lodged by a conveyancer, or
• in any other case where the registrar deems it necessary or desirable

(rule 17 of the Land Registration Rules 2003).

If notice is served, we will allow the prescribed notice period under rule 197 of the Land Registration Rules 2003 for the cautioner to object to the application. If we receive an objection to the application from the cautioner we will contact you with the details. The registrar may not determine the application until the objection has been disposed of (section 73(5) of the Land Registration Act 2002).

4.4 Completion

Where the application is successful we will notify you that we have completed it and the caution title is withdrawn. Where part only of the caution title has been withdrawn, we will enclose up-to-date copies of the caution register and plan.

5. Applying to alter the caution register

5.1 When the caution register may be altered

The registrar can alter the caution register:

• to correct a mistake
• to bring it up to date (section 21 of the Land Registration Act 2002)
• to give effect to an order of the court (section 20 of the Land Registration Act 2002)

5.2 Form of application

You must use form AP1 when applying to have the caution register altered. Written details of the alteration required, the grounds on which the application is made and any supporting documents must accompany the application (rule 50(1) of the Land Registration Rules 2003).

If the applicant claims that the whole of the interest has vested in them by operation of law they may apply for the register to be altered (rule 51(1) of the Land Registration Rules 2003). The registrar is only obliged to alter the cautions register to substitute another person for the cautioner if the whole of the relevant interest is vested in that other person by operation of law (rule 49(2) of the Land Registration Rules 2003). The appropriate evidence of devolution of title must accompany the application.

If the applicant claims that the whole of the interest has vested in them other than by operation of law (by assignment, for example), they may apply for the register to be altered (rule 50(1) of the Land Registration Rules 2003). The registrar has a discretion to alter the cautions register to substitute another person for the cautioner in such circumstances (rule 49(2) of the Land Registration Rules 2003). The appropriate evidence of devolution of title must therefore accompany the application.

A fee is payable in cases where a new cautioner is being registered in place of an existing cautioner. Other applications may attract a fee depending on the nature and scale of the alteration required. You should refer to HM Land Registry: Registration Services fees for further guidance.

We will need only certified copies of deeds or documents you send to us with HM Land Registry applications. Once we have made a scanned copy of the documents you send to us, they will be destroyed. This applies to both originals and certified copies.

5.3 Notices

Unless the registrar is satisfied that it is unnecessary, notice will be served on the cautioner giving details of any application to alter the caution register (rule 50(2) of the Land Registration Rules 2003). The cautioner may object to the alteration within the notice period prescribed under rule 197 of the Land Registration Rules 2003. Where the cautioner shown in the cautioner’s register is more than one person, then each such person may object to an application made under section 18 of the Land Registration Act 2002 (rule 52(2) of the Land Registration Rules 2003).

5.4 Completion

If the application is in order, and the cautioner has consented after the service of any notice that was deemed necessary, we will alter the register and notify you of completion. We will send you an up-to-date copy of the caution register and, where it has been changed, the plan.

6. Transitional provisions

Cautions against first registration registered under section 53 of the Land Registration Act 1925 continue to be effective until such time as they are cancelled, withdrawn, or the qualifying estate is registered. The prohibition under section 15(3) of the Land Registration Act 2002 does not apply retrospectively. However, in other respects, cautions registered under section 53 are treated in the same way as cautions registered under section 15 of the Land Registration Act 2002 (paragraph 16 of Schedule 12 to the Land Registration Act 2002).

The prohibition under section 15(3) of the Land Registration Act 2002 came into force at midnight on 12 October 2005. Before then, it was possible for an estate owner to protect their claim to ownership by a caution against first registration. However, any caution against first registration on the basis of claimed ownership of a legal estate registered after 13 October 2003 ceased to have effect at midnight on 12 October 2005. (Paragraph 14(1) and (2) of Schedule 12 to the Land Registration Act 2002.) Owners of estates protected by a caution which has ceased to have effect should consider making an application to substantively register their estate.

7. Demesne land

Where demesne land is involved:

• the right to lodge a caution operates as if His Majesty were the owner of a freehold estate in land (section 81 of the Land Registration Act 2002)
• the prohibition in section 15(3) of the Land Registration Act 2002 did not apply until midnight on 12 October 2013, but any caution lodged by virtue of this exemption then ceased to have effect (paragraph 15 of Schedule 12 to the Land Registration Act 2002)
• either His Majesty, or the owner of a legal estate affecting the demesne land, may apply for cancellation
• you may make appropriate modifications to form CCT in the event that the applicant for cancellation is His Majesty (rule 44(5) of the Land Registration Rules 2003)

8. Things to remember

We only provide factual information and impartial advice about our procedures. Read more about the advice we give.