Practice guide 25: leases - when to register

Q: 7. Preliminary service applications

7.1 First registration For further details see: practice guide 1: first registrations practice guide 10: official search of the index map Note: If you do not require indemnity provisions in respect of an index map search you could consider using MapSearch . This service is available free of charge for Business e-services customers who have portal access and provides immediate search results. 7.2 Lease out of a registered title For further details see: practice guide 11: inspection and applications for official copies practice guide 12: official searches Note: If you are lodging an official search of part affecting a discontinuous lease, ensure you include details of any particular time period as well as the property details, such as, ‘Apartment 6 for Week 27’.

Question 1

1. Introduction

Accepted Answer

The Land Registration Act 2002, together with the Land Registration Rules 2003, changes the categories of leases that are now either compulsorily or voluntarily registrable, and also the leases that we can note.

Not every leasehold estate is capable of being registered with its own title, but the Land Registration Act 2002 substantially extends the scope of title registration, for example, many more business leases will be subject to compulsory registration.

The information within this guide applies to:

leases dated on or after 13 October 2003
leases existing before 13 October 2003
assignments, transfers (on sale, by way of gift or by order of court) or assents, including vesting assents, dated on or after 13 October 2003, of existing leasehold estates having more than seven years of the term left to run
first legal mortgages dated on or after 13 October 2003
assignments and transfers dated on or after 6 April 2009 of existing unregistered leasehold estates having more than seven years of the term left to run
- giving effect to a partition of land subject to a trust of land
- by a deed that appoints, or by virtue of section 334 of the Charities Act 2011 has effect as if it appointed, a new trustee or is made in consequence of the appointment of a new trustee
- by a vesting order under section 44 of the Trustee Act 1925 that is consequential on the appointment of a new trustee.

See also practice guide 62: easements for details of the registration requirements in respect of easements granted in leases.

Question 2

2. How to apply the Land Registration Act 2002 and Land Registration Rules 2003: compulsory registration

Accepted Answer

Section 4 of the Land Registration Act 2002 specifically sets out the circumstances when an application for first registration must be made.

The estate owner, or their successor in title, must apply for first registration – see section 6(1) of the Land Registration Act 2002.

The period for registration is two months from the date of the deed inducing registration – see section 6(4) of the Land Registration Act 2002. However, an order can be made to extend the period of registration – see section 6(5) of the Land Registration Act 2002.

Section 27(2)(b) of the Land Registration Act 2002 specifically sets out the circumstances when leases out of a registered title must be registered.

Section 4(5A) of the Land Registration Act 2002 exempts relevant social housing tenancies from compulsory registration, regardless of term.

2.1 New leases granted for a term of more than seven years out of unregistered land

See section 4(1)(c) of the Land Registration Act 2002.

Leases granted for a term of more than seven years from the date of the grant, out of either an unregistered freehold or leasehold estates, will be compulsorily registrable provided they are either:

for valuable or other consideration – that under section 4(6) of the Land Registration Act 2002 includes estates that have a negative value
by way of a gift – section 4(7) of the Land Registration Act 2002 provides for
- grants for the purpose of setting up a trust, where the person setting up the trust, ‘the settlor’, does not retain the whole of the beneficial interest
- transfers of the legal title to the beneficial owners, where the settlor did not retain the whole of the beneficial interest when the trust was set up
pursuant to an order of any court

2.2 New leases for a term of more than seven years out of a registered title

See section 27(2)(b)(i) of the Land Registration Act 2002.

Leases granted out of existing registered titles, that are for a term of more than seven years from the date of the grant are compulsorily registrable.

2.3 Transfers or assignments of unregistered leases having more than seven years of the term unexpired

See sections 4(1)(a), 4(1)(aa) (as introduced by the Land Registration Act 2002 (Amendment) Order 2008) and 4(2)(b) of the Land Registration Act 2002.

Transfers or assignments of unregistered leases, that at the time of the transfers (or assignments) have more than seven years to run, are compulsorily registrable if they are made either:

for valuable or other consideration – that under section 4(6) of the Land Registration Act 2002 includes estates that have a negative value
by way of gift – section 4(7) of the Land Registration Act 2002 provides for
- transfers for the purpose of setting up a trust, where the person setting up the trust, ‘the settlor’, does not retain the whole of the beneficial interest
- transfers of the legal title to the beneficial owners, where the settlor did not retain the whole of the beneficial interest when the trust was set up
pursuant to an order of any court
by means of an assent – including a vesting assent
if dated on or after 6 April 2009
- to give effect to a partition of land subject to a trust of land
- by a deed that appoints, or by virtue of section 334 of the Charities Act 2011 has effect as if it appointed, a new trustee or that is made in consequence of the appointment of a new trustee
by a vesting order under section 44 of the Trustee Act 1925 that is consequential on the appointment of a new trustee

Note: Not all transfers or assignments attract compulsory registration.

The following are specific types of transfer or assignment that are not subject to compulsory registration

transfer by operation of law, such as, when a deceased’s property vests in their executors – see section 4(3) of the Land Registration Act 2002
- however, a transfer by operation of law that is within section 4(1)(aa) of the Land Registration Act 2002, such as, when property vests in a new trustee by an express vesting declaration, or one that is implied, under section 40 of the Trustee Act 1925 in a deed appointing a new trustee, is subject to compulsory registration
an assignment of a mortgage term, ie mortgage by demise – see section 4(4)(a) of the Land Registration Act 2002
an assignment or surrender of a lease to the owner of the immediate reversion where the term is to merge into that reversion – see section 4(4)(b) of the Land Registration Act 2002

2.4 Transfers or assignments of unregistered leases where section 171A of the Housing Act 1985 applies

See section 4(1)(b) of the Land Registration Act 2002.

All transfers of unregistered leases, irrespective of the length of the term of the lease, made pursuant to section 171A of the Housing Act 1985 (Preserved Right to Buy) are compulsorily registrable.

2.5 Transfers of any registered leases

See section 27(2)(a) of the Land Registration Act 2002.

Most transfers of registered leases, irrespective of the length of the term of the lease, are compulsorily registrable. However, the following transfers by operation of law are not required to be registered:

a transfer on the death or bankruptcy of an individual proprietor
a transfer on the dissolution of a corporate proprietor

2.6 Right to buy leases: Part V of the Housing Act 1985

See sections 4(1)(e) and 27(2)(b)(iv) of the Land Registration Act 2002.

All leases, irrespective of the length of the term of the lease, made pursuant to Part V of the Housing Act 1985 are compulsorily registrable.

2.7 Leases where section 171A of the Housing Act 1985 applies

See sections 4(1)(f) and 27(2)(b)(v) of the Land Registration Act 2002.

All leases, irrespective of the length of the term of the lease, made pursuant to section 171A of the Housing Act 1985 (Preserved Right to Buy) are compulsorily registrable.

2.8 Reversionary leases taking effect more than three months from the date of the grant

See sections 4(1)(d) and 27(2)(b)(ii) of the Land Registration Act 2002.

A ‘reversionary’ lease gives the lessee a right to possession of the leased property in the future, ie the lessee does not have an immediate right to possession of the land in the lease, at the date of the lease.

A lease granted out of either an:

unregistered leasehold estate, that at the date of grant has more than seven years left to run
unregistered freehold estate
existing registered title

that is granted for any term to take effect more than three months from the date of the grant is compulsorily registrable.

2.9 Discontinuous leases out of registered titles or granted for a term of more than seven years out of unregistered land

See section 27(2)(b)(iii) of the Land Registration Act 2002.

These are leases where the lessee’s ‘right to possession’ of the land demised is discontinuous. The lease may be of a property, such as, a flat, apartment or market stall, that is for either:

a specified number of days in a week, for example, every Monday to Friday (inclusive)
a specific week(s) in a calendar year

All discontinuous leases granted out of a registered title must be registered, regardless of the term.

Discontinuous leases granted for a term of more than seven years out of unregistered freehold or leasehold estates will be compulsory registrable.

See sections 4(1)(c) and 4(2)(b) of the Land Registration Act 2002 and see New leases granted for a term of more than seven years out of unregistered land.

To calculate the length of the term on such a lease, multiply the number of complete weeks each year the property is demised by the number of years granted.

If the total is more than seven years (ie more than 364 complete weeks), the lease and/or transfer will be compulsorily registrable.

2.10 Protected first legal mortgage

See sections 4(1)(g) and 4(2)(b) of the Land Registration Act 2002 and rules 21 and 22 of the Land Registration Rules 2003.

A protected first legal mortgage of an unregistered leasehold estate, that has more than seven years of its term unexpired, is subject to compulsory first registration. In order for such a mortgage to be registered, the leasehold estate will also need to be registered. Rule 21 of the Land Registration Rules 2003 allows a mortgagee of a protected first legal mortgage to apply to have the leasehold estate registered, whether or not the mortgagor consents to the application.

Note 1: A ‘protected mortgage’ is a mortgage that is protected by the deposit of documents relating to the mortgaged estate – see section 4(8)(a) of the Land Registration Act 2002.

Note 2: A ‘first legal mortgage’ is a legal mortgage that ranks in priority over all other mortgages affecting the mortgaged estate – see s.4(8)(b) of the Land Registration Act 2002.

Question 3

3. How to apply the Land Registration Act 2002 and Land Registration Rules 2003: voluntary registration

Accepted Answer

Section 3 of the Land Registration Act 2002 gives details of when an application can be made to voluntarily register an unregistered leasehold estate.

Section 3(4A) of the Land Registration Act 2002 specifically excludes relevant social tenancies from being eligible for voluntary registration.

The following sections mainly apply to leases that are made before 13 October 2003 and when no events requiring registration have occurred. However, some of the sections will also apply to some leases that are granted on or after 13 October 2003, that can be registered but may not be subject to compulsory registration. For example, see Discontinuous leases out of unregistered land.

The following sections give details of the leasehold estates in land that can be lodged voluntarily for first registration.

3.1 Leases having more than seven years of their term unexpired

See section 3(3) of the Land Registration Act 2002.

Most leases will be accepted for registration, provided there is more than seven years of the original term left unexpired at the time of first registration. If the lease is granted on or after 13 October 2003 it will be subject to compulsory registration – see New leases granted for a term of more than seven years out of unregistered land.

Where a lessee holds a lease in possession but is granted another lease of the same land, to take effect in possession on or within one month of the expiry of the first lease, the two terms can be treated as creating one continuous term – see section 3(7) of the Land Registration Act 2002. Therefore, if the two terms total more than seven years, we will accept a voluntary application for registration of both leases, that will be registered together on the same title.

Note: Section 3(7) of the Land Registration Act 2002 only provides that such leases can be treated as creating one continuous term for the purposes of voluntary registration. There is no provision that such leases are to be treated as one continuous term for the purposes of compulsory registration.

3.2 Discontinuous leases out of unregistered land

See section 3(4) of the Land Registration Act 2002. This provision is new under the Land Registration Act 2002.

See Discontinuous leases out of registered titles or granted for a term of more than seven years out of unregistered land as to what constitutes a ‘discontinuous’ lease, and how to calculate the length of the term of the lease.

A voluntary application will be accepted, regardless of the length of the term, ie the lease does not have to be for more than seven years (364 weeks). However, if a discontinuous lease is granted on or after 13 October 2003, or a transfer of a discontinuous lease is made on or after 13 October 2003, it must be registered if it falls within sections 4(1)(c) and 4(1)(a) of the Land Registration Act 2002 – see New leases granted for a term of more than seven years out of unregistered land and Transfers or assignments of unregistered leases having more than seven years of the term unexpired.

To calculate the length of the term on such a lease, multiply the number of complete weeks each year the property is demised by the number of years granted.

If the total is more than seven years (ie more than 364 complete weeks) the lease and/or transfer will be compulsorily registrable.

Question 4

4. How to apply the Land Registration Act 2002 and Land Registration Rules 2003: leases that cannot be registered

Accepted Answer

Section 3(5) of the Land Registration Act 2002 specifically details when we cannot accept an application to register a leasehold estate, ie if the estate owner (the applicant) has the leasehold estate vested in them as a mortgagee, where there is a subsisting right of redemption.

The following sections give details of the leasehold estates in land that cannot be lodged for registration.

4.1 Leases granted for a term of seven years or less or where the unexpired term is for seven years or less

Unless they fall into one of the exceptions below, which are registrable regardless of their term, the following leases are not registrable (Sections 3(3), 4(1)(c) and 27(2)(b)(i) of the Land Registration Act 2002).

(i) Leases out of registered or unregistered land, where the term unexpired at the date of the grant is 7 years or less.

(ii) Unregistered leasehold estates subject to transfer or assignment which have 7 years or less of the term unexpired at the date of the disposition.

(iii) Applications for voluntary first registration of a leasehold estate where the unexpired portion of the term is 7 years or less at the date of the application.

Note: The following are exceptions to this and these leases can be registered irrespective of their term.

right to buy leases, pursuant to Part V of the Housing Act 1985
preserved right to buy leases pursuant to section 171A of the Housing Act 1985
discontinuous leases
reversionary leases granted on or after 13 October 2003 that are to take effect more than three months from the date of grant out of either
- an unregistered freehold estate
- an unregistered leasehold estate in land for a term that at the time of the grant of the lease has more than seven years left to run
- a registered title.

Note: Some of these leases are compulsorily registrable. See How to apply the Land Registration Act 2002 and Land Registration Rules 2003: compulsory registration for further details.

4.2 Lease term starts more than 21 years from date of lease

Usually a lease for which a rent or premium is payable where the term starts more than 21 years from the date of the lease is void – see section 149(3) of the Law of Property Act 1925. Therefore, such leases cannot be registered.

4.3 Leases with no certain start date

If the lease is silent as to the commencement date, we will normally assume (in the absence of other evidence) the term commences on the date of the lease.

4.4 Lessor and lessee are the same

The House of Lords decided that neither one person, nor a company, can create a lease in favour of the same person or company. Any attempt to do so is without legal effect (Rye v Rye [1962] A C 496). Therefore, we cannot give any kind of registered title to such a lease.

4.5 Public-Private Partnership (PPP) leases

A PPP lease is a lease that constitutes a ‘public-private partnership’ agreement – see sections 210 and 211 of the Greater London Authority Act 1999.

The lease will usually be between London Regional Transport, Transport for London or one of its subsidiaries and a private company, for the purpose of maintaining or providing a railway, such as, an underground railway.

PPP leases are not registrable - see sections 90(1), (2) and (3) of the Land Registration Act 2002.

They are classed as an interest that overrides both first registration and registered dispositions – see section 90(5) of the Land Registration Act 2002.

4.6 Leases vested in a person as a mortgagee: subsisting right of redemption

See section 3(5) of the Land Registration Act 2002.

A lease vested in a person as mortgagee where there is a subsisting right of redemption cannot be registered.

See sections 3(4A), 4(5A) and 27(5A) of the Land Registration Act 2002.

A relevant social housing tenancy (as defined in section 132(1) of the Land Registration Act 2002) cannot be registered.

Question 5

5. How to apply the Land Registration Act 2002 and Land Registration Rules 2003: noting of leases

Accepted Answer

See sections 32, 33, 34, 37 and 38 of the Land Registration Act 2002.

Section 32 of the Land Registration Act 2002 allows us to note certain leases against the registered estate affected, ie lessor’s title.

5.1 Noting of leases granted out of registered titles on or after 13 October 2003

When an application is lodged for registration of a lease granted out of registered land that is required to be registered (see How to apply the Land Registration Act 2002 and Land Registration Rules 2003: compulsory registration for further details) no application is required to note the lease on the lessor’s registered title. Notice will automatically be entered in the lessor’s title by HM Land Registry, pursuant to section 38 of the Land Registration Act 2002.

5.2 Noting of leases on lessors’ registered superior titles following first registration

See rule 37 of the Land Registration Rules 2003.

An application to register a lease that was either:

not granted out of a registered estate
granted before the commencement of Land Registration Act 2002
and was not previously compulsorily registrable (such as, a lease of more than seven years but for 21 years or less)

will be treated as an application for first registration.

Provided the lease can be noted – see Leases that we cannot note – HM Land Registry will automatically note the lease in the lessor’s registered superior title (if it is not already noted), subject to serving notice on the lessor – see rule 37(3) of the Land Registration Rules 2003. If the lessor’s consent is lodged with the application we will not need to serve notice on the lessor.

5.3 Noting of leases for more than three years

If a notice is not automatically made in the lessor’s title under section 38 of the Land Registration Act 2002 or rule 37(3) of the Land Registration Rules 2003 an application may be made for a notice to be entered if the lease:

is granted for a term of more than three years from the date of the grant
does not relate to a trust of land or a settlement under the Settled Land Act 1925

See sections 32, 33 and 34 of the Land Registration Act 2002.

See How to apply the Land Registration Act 2002 and Land Registration Rules 2003: compulsory registration, for details of leases that must be registered.

See Noting of leases for details on how an application is made.

Section 37 of the Land Registration Act 2002 also allows HM Land Registry to note leases of more than three years but not exceeding seven years in a registered superior title, even though the lease itself will be incapable of substantive registration.

5.4 Leases that we cannot note

See section 33 of the Land Registration Act 2002.

We cannot note the following in the register. Leases that are:

granted for a term of three years or less – and are not required to be substantively registered – see section 33(b) of the Land Registration Act 2002
- See How to apply the Land Registration Act 2002 and Land Registration Rules 2003: compulsory registration, for details of leases that must be registered
- Note: This applies to any discontinuous leases that are not compulsorily registrable, where the total period is three years or less.
Public–Private Partnership leases – see section 90(4) of the Land Registration Act 2002
relevant social housing tenancies – see section 33(ba) of the Land Registration Act 2002

Question 6

6. How to apply the Land Registration Act 2002 and Land Registration Rules 2003 and make applications to HM Land Registry

Accepted Answer

Original documents are normally required only if your application is a first registration.

A conveyancer may, however, make an application for first registration on the basis of certified copy deeds and documents only. For information about this, see practice guide 1: first registrations – Applications lodged by conveyancers – acceptance of certified copy deeds.

If your application is not a first registration, then 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.

However, any original copies of death certificates or grants of probate will continue to be returned.

6.1 First registration

The estate owner or their successor in title should apply for first registration – see section 6(1) of the Land Registration Act 2002.

The period for registration is two months from the date of the deed inducing registration – see sections 6(4) and (5) of the Land Registration Act 2002.

Applications must be lodged in form FR1 – see rule 23(1) of the Land Registration Rules 2003.

Rule 24, of the Land Registration Rules 2003 gives details of what must accompany an application for first registration, that is:

sufficient details, by plan or otherwise, so that the land can be identified clearly on the Ordnance Survey map
the lease (original or certified copy – see above for information on Applications lodged by conveyancers – acceptance of certified copy deeds)
- Note 1: If the plan, or sufficient details to identify the land, are included in the lease, a further plan will not be required
- Note 2: If the lease is a discontinuous lease, a copy of any ‘timeshare’ calendar defining the weeks referred to will be required, if it is not included in the lease
evidence that Stamp Duty Land Tax certificate (SDLT) or Land Transaction Tax (LTT) requirements have been met
all deeds and documents relating to the title that are in the control of the applicant

Note: If absolute leasehold is requested in form FR1 and the evidence of the superior title(s) is not lodged, we will only register the applicant with good leasehold title. We will not raise a requisition for this evidence.

a list in duplicate in form DL of all the documents delivered.

For more general information on lodging an application for first registration see practice guide 1: first registrations.

Advice on whether a particular transaction:

requires to be notified to HM Revenue & Customs (HMRC) or the Welsh Revenue Authority (WRA) is exempt from SDLT or LTT (such as a legal charge)
falls outside the scope of SDLT or LTT

can be obtained from:

for SDLT, the HMRC stamp taxes helpline on 0300 200 3510, open 8.30am to 5pm Monday to Friday except public holidays or HMRC’s stamp taxes website
for LTT: the WRA customer service centre on 03000 254 000, open 9.30am to 5.30pm Monday to Friday except public holidays or the WRA’s website

If the lease is granted to two or more persons and it either does not contain details, or contains conflicting information, as to whether a Form A restriction (see Schedule 4 to the Land Registration Rules 2003) is required, we will enter a restriction in Form A by default. If the lease is granted on or after 19 June 2006 and contains the prescribed clauses, a declaration of trust is contained in clause LR14. For further information see practice guide 24: private trusts of land.

Any restrictions, other than a Form A restriction, must be applied for in form RX1 – rule 92 of the Land Registration Rules 2003. For further information see practice guide 19: notices, restrictions and protection of third party interests. A restriction cannot be applied for in a lease however, from 9 January 2006, a lease containing clauses LR1 to LR14 of Schedule 1A, to the Land Registration Rules 2003 may be used, at clause LR13, to apply for entry of a standard form restriction. This will include prescribed clauses leases granted on or after 19 June 2006. An application for a non-standard restriction must always be made in form RX1. For further information see practice guide 64: prescribed clauses leases – section 5.13 LR13.

A leasehold register will include sufficient details of the lease being registered to enable it to be identified – see rule 6 of the Land Registration Rules 2003. Such details will no longer include any reference to the rent payable under a lease.

6.2 New leases out of a registered title

These applications must be lodged in form AP1 – rule 13 of the Land Registration Rules 2003.

A certified copy of the lease and the appropriate fee under the current Land Registration Fee Order must accompany the application (see HM Land Registry: Registration Services fees).

The lease, if granted on or after 19 June 2006, must be a prescribed clauses lease. For further information, see practice guide 64: prescribed clauses leases.

The lease must be accompanied by evidence that SDLT or LTT requirements have been met.

If the lease is lodged for registration by a conveyancer who only represents the lender, we will require written confirmation from the conveyancer representing the tenant stating:

the address for service to be entered on the register; and
that, if the application was lodged by them on behalf of the tenant, they would be sufficiently satisfied they can provide the necessary confirmation of identity required by panels 12 and 13 of form AP1

If there is a mortgage registered on the landlord’s title you will need to enclose the consent of the mortgagee. Consent is always required where there is also a restriction in favour of the lender on the landlord’s title which ‘catches’ the lease application. Otherwise where the consent is not lodged, we will make the following entry in the property register of the new title:

“The title to the lease is, during the subsistence of the charge dated ….. in favour of ….. affecting the landlord’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.”

If the landlord’s title is leasehold enclose the consent of any superior landlord, if the superior lease requires such consent to be obtained. Where the consent of the superior landlord is not lodged we will make the following entry in the property register of the new title unless a conveyancer certifies that the new lease falls in a permitted category and is not caught by the terms of the alienation clause in the superior lease:

“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.”

A leasehold register will include sufficient details of the lease being registered to enable it to be identified – see rule 6 of the Land Registration Rules 2003. Such details will no longer include any reference to the rent payable under a lease.

If the lease is granted to two or more persons and it either does not contain details, or contains conflicting information, as to whether a Form A restriction (see Schedule 4 to the Land Registration Rules 2003) is required, we will enter a restriction in Form A by default. If the lease is a prescribed clauses lease a declaration of trust is contained in clause LR14. For further information see practice guide 24: private trusts of land.

Any restrictions, other than a Form A restriction, must be applied for in form RX1 – rule 92 of the Land Registration Rules 2003. For further information see practice guide 19: notices, restrictions and protection of third party interests. A standard restriction cannot be applied for in a lease. However, from 9 January 2006, a lease containing clauses LR1 to LR14 of Schedule 1A to the Land Registration Rules 2003 may be used, at clause LR13, to apply for entry of a standard form restriction. This will include prescribed clauses leases granted on or after 19 June 2006. Form RX1 must continue to be used to apply for entry of a restriction contained in any other lease, or for entry of a non-standard form restriction. For further information see practice guide 64: prescribed clauses leases – section 5.13 LR13.

6.3 Noting of leases

See sections 33, 34 and 35 of the Land Registration Act 2002.

Note: Application to note a lease as an agreed or unilateral notice will not fulfil the registration requirements for legal easements. If the lease contains easements you should apply as directed in practice guide 62: easements – 4.2 Easements in unregistered leases.

6.3.1 Agreed notices

If a lease is not automatically noted under section 38 of the Land Registration Act 2002 or rule 37 of the Land Registration Rules 2003, and is not prevented from being noted (see Leases that we cannot note), an application may be made for an agreed notice to be entered in the register affected by the interest by either:

the person entitled to the benefit of the interest
the registered proprietor of the land in which the notice is to be entered
a person entitled to be registered as such proprietor, such as the personal representative of a sole registered proprietor

Such an application should be accompanied by:

evidence that SDLT or LTT requirements have been met

Note: Before we can note any land transaction as an agreed or unilateral notice, HM Land Registry is obliged to ensure that the appropriate SDLT or LTT certificate accompanies the application where this is required. This is a statutory requirement under section 79(1) of the Finance Act 2003 and s.65(1) of the Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Act 2017. See First registration for details.

if the application is by a person entitled to be registered as proprietor, sufficient evidence to satisfy us of their interest
if the application is not made by the registered proprietor or a person entitled to be registered as such proprietor, either the consent of such person, or sufficient evidence to satisfy the registrar as to the validity of the claim
any appropriate consents of restrictioners

For further details see practice guide 19: notices, restrictions and protection of third party interests.

6.3.2 Unilateral notices

It may be possible to make an application for a unilateral notice to be entered on the lessor’s title when an agreed notice cannot be entered. For further details see practice guide 19: notices, restrictions and protection of third party interests.

6.3.3 Leases with less than one year to run

We will not note leases with less than one year to run. This is because, in the registrar’s view, entering notice of such a lease in the register is likely to cause inconvenience to HM Land Registry and our customers as application would have to be made within a year for its removal.

6.4 Deeds of variation

6.4.1 Variation of a registered lease

If lodging an application to register the variation of a lease when the lessee’s title is registered, it will usually be appropriate to make the application under rule 129 of the Land Registration Rules 2003, and, therefore, the application should be lodged in form AP1 – rule 13 of the Land Registration Rules 2003.

Under rule 129 of the Land Registration Rules 2003 you must provide sufficient evidence to show that the variation has effect at law. You must, therefore, lodge:

the deed of variation, and
consent(s) of any chargee or restrictioner if required, or
where the lessor’s title is unregistered – evidence of the lessor’s title, and
any other evidence to show that the variation has effect at law, such as, evidence of change of name of one of the parties if the name is not the same as that shown on the register

If we are satisfied that the variation has effect at law we will make an entry relating to the deed in the property register of the lessee’s title. We will also enter a notice in the lessor’s title, without a specific application being made in form AN1 in respect of the lessor’s title.

Note: If the chargee’s consent is not lodged when required, the following will be added to the register entry of the relevant titles:

“NOTE: The proprietor of the registered charge dated […] [of the landlord’s/tenant’s title number …] was not a party to the deed nor was evidence of its consent to the deed produced to the registrar.”

6.4.2 Variation of an unregistered lease

If notice of an unregistered lease is entered in a lessor’s title, an application may be made to enter a notice in respect of a variation of the lease. Such an application should usually be made for an agreed notice in form AN1, if the deed of variation can be provided and the lease is already protected as an agreed notice. However, it may be appropriate in some circumstances to make an application in form UN1, for example if the lease is already protected by way of unilateral notice and the lease or/and the deed of variation cannot be provided. For further details see practice guide 19: notices, restrictions and protection of third party interests.

Please note that where an application is being made for an agreed or unilateral notice following a deed of variation, the application can be made in respect of the lessor’s title only. This is because, under section 32(1) of the Land Registration Act 2002, a notice is an entry in the register “in respect of the burden of an interest affecting a registered estate”. The lease is clearly an interest burdening the lessor’s registered estate and so can be the subject of a notice in the lessor’s title; it can be argued that any deed of variation can also be noted as the entry is then “in respect of” this burden. But the lease is not an interest affecting the lessee’s estate: it is their estate. So the lease cannot be the subject of a notice in the lessee’s title; and nor, as a result, can the deed of variation be the subject of such a notice.

6.4.3 Application to note variation where it is not clear that the variation takes effect at law

It may be appropriate in some cases to apply for a notice in either:

in respect of a deed of variation even when the lease is substantively registered, as sufficient evidence may not be able to be provided to satisfy the registrar that the variation takes effect at law. For further details see practice guide 19: notices, restrictions and protection of third party interests.

Note: If the deed of variation contains easements, these will not operate at law until entries relating to the burden and benefit of the easement are entered in both registered titles – see section 27(1) and paragraph 7 of Schedule 2 to the Land Registration Act 2002.

Please note that where an application is being made for an agreed or unilateral notice following a deed of variation, the application can be made in respect of the lessor’s title only. This is because, under section 32(1) of the Land Registration Act 2002, a notice is an entry in the register “in respect of the burden of an interest affecting a registered estate”. The lease is clearly an interest burdening the lessor’s registered estate and so can be the subject of a notice in the lessor’s title; it can be argued that any deed of variation can also be noted as the entry is then “in respect of” this burden. But the lease is not an interest affecting the lessee’s estate: it is their estate. So the lease cannot be the subject of a notice in the lessee’s title; and nor, as a result, can the deed of variation be the subject of such a notice.

6.4.4 Variation of term or extent

Although it is clear in law that the term of a lease cannot be extended by deed, deeds of variation are frequently encountered that purport to either

extend the length of a lease
increase the land demised

You should avoid using a deed of variation in such circumstances.

However, if these deeds are lodged for registration, we will treat them as an immediate surrender of the old lease and the grant of the new lease. A deed varying a lease that takes effect as a surrender and re-grant of the leasehold estate does not have to be a prescribed clauses lease. This exception applies whether or not the original lease was a prescribed clauses lease. For further details see practice guide 28: extension of leases.

For guidance on how to correct the extent demised by the lease or the length of the term, see practice guide 68: amending deeds that effect dispositions of registered land – section 4.4 Leases: Incorrect extent to term demised.

Question 7

7. Preliminary service applications

Accepted Answer

7.1 First registration

For further details see:

Note: If you do not require indemnity provisions in respect of an index map search you could consider using MapSearch. This service is available free of charge for Business e-services customers who have portal access and provides immediate search results.

7.2 Lease out of a registered title