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Practice guide 1: first registrations

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Practice guide 1: first registrations

7. Dealings with land before first registration is completed

7. Dealings with land 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 estate were already registered under rule 38 of the Land Registration Rules 2003.

So, HM Land Registry forms must, where applicable, be used for later dealings, and the registration requirements set out in section 27 and Schedule 2 of the Land Registration Act 2002 must be met.

You can apply to register the later dealing(s) either at the same time as the application for first registration or subsequently. You cannot apply before the first registration application has been made. If the first registration application is cancelled for any reason, any application to register the later dealings will also be cancelled.

The following sections explain how disponees who are in this position can apply for registration, and what they can do, if necessary, to protect their interests by other means.

7.1 Dealing is a transfer

Transferees have a choice. They can either:

  • insist that a transferor who is required to apply for first registration under section 6(1) of the Land Registration Act 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) 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

If the transferees are satisfied with the title offered, it will often be best for them to make the application themselves. They should apply in form FR1, showing themselves as the applicants in panel 6. See HM Land Registry: Registration Services fees for the fee payable for first registration. You should note that where application is made using form FR1 and form AP1, separate scale fees are payable for each transaction.

If more than 2 months have elapsed between the event that triggered compulsory registration and the date of application, the transferee will be an ‘interested person’ who is entitled to apply to the registrar for an extension to the period for registration under section 6(5) of the Land Registration Act 2002.

Whichever method is adopted, a transfer that takes place after the requirement for first registration has arisen must be in the appropriate HM Land Registry form.

7.2 Dealing is the grant of a lease

Lessees are not successors in title to their lessor’s reversionary estate, so they cannot apply to register it. If the lessor is required under section 6(1) of the Land Registration Act 2002 to apply for first registration of their estate, and the lease is of a kind that will need to be registered (see section 27(2)(b) of the Land Registration Act 2002), the intending lessee should insist that the lessor applies for first registration before the lease is completed.

Until the lessor’s estate is registered, the lease cannot be registered. The grant of the lease is a disposition that does not pass the legal estate until the registration requirements are met. Those requirements cannot be met until the lessor’s title has been registered, so that the lease can be noted as an incumbrance in its register (this is the combined effect of section 27 and paragraph 3 of Schedule 2 of the Land Registration Act 2002 and rule 38 of the Land Registration Rules 2003).

The lease cannot be registered voluntarily under section 3(2) of the Land Registration Act 2002 because there is no legal estate.

If the lessor does not apply to register their own title within the 2-month period, the lessee cannot prevent the lessor’s legal estate, and their own, becoming void under section 7(1) of the Land Registration Act 2002.

In these circumstances the lessee may protect their interest by:

  • applying for a caution against first registration (section 15(3) of the Land Registration Act 2002 does not prevent this, as the lessee does not have a legal estate), and
  • registering a class C(iv) land charge

7.3 Charges

The mortgagee should ensure that the mortgagor applies for registration of the land in the name of the mortgagor and for its mortgage to be registered as a charge. If necessary, the mortgagee can make an application in the name of the mortgagor for the estate charged by the mortgage to be registered without the consent of the mortgagor (see section 6(6) of the Land Registration Act 2002 and rule 21 of the Land Registration Rules 2003).

7.3.2 Puisne mortgage (second charge) by the estate owner of unregistered land

The mortgagee should obtain the necessary priority for its charge by making an official search at the Land Charges Department. If it is not in a position to ensure that an application for first registration of the land (and its own charge) is made within the priority period of its search, it should protect its interest by registering a class C(i) land charge. Care should be taken to register the mortgage in the name of the estate owner. Where the transfer to the estate owner is one to which section 6 of the Land Registration Act 2002 applies and the legal estate appears to have reverted under section 7(1) of the Land Registration Act 2002 it will be advisable, in view of section 7(2), to register in both names – the revertee’s and the mortgagor’s.

The mortgagee can also register a caution against first registration. Though the caution will not give it any priority against subsequent dealings, it will ensure that it is notified when an application for first registration is made, so that it can then apply to register the charge.

7.4 Other dealings

If a transaction other than a transfer, lease or charge (such as the grant of an easement) is affected by rule 38 of the Land Registration Rules 2003, then:

  • we cannot register it, guarantee the benefit of it or note it (as appropriate) until application for first registration is received, and
  • it will then require a separate dealing application and fee (unless covered by an abatement)

It can be protected in the interim by a caution against first registration or, in some cases, such as where there is an equitable easement, by registration of a land charge.

7.5 Reservation of a sale of part

Vendors who have reserved to themselves a legal easement generally need take no action as their interest will automatically be noted in the register on first registration of the servient land. If the rights are overlooked by the examiner they will continue to bind the registered proprietor as overriding interests. In a few instances, however, the overriding status of these rights may be lost on a subsequent transfer of the servient land.

7.6 Dealings with land in the course of registration

We cannot supply an official copy of the register until the registration has been completed. A person dealing with the estate owner should therefore investigate the title as if the land were still unregistered.

You may secure priority for such a dealing by means of an official search. Use form OS1 for searches affecting the whole of the pending first registration and form OS2 for searches of part. Describe the search as ‘Pending first registration search’ in the relevant panel of the search form. The search will disclose, among other things, details of any applications or official searches with priority pending against the title.

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