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Practice guide 19: notices, restrictions and the protection of third-party interests in the register

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Practice guide 19: notices, restrictions and the protection of third-party interests in the register

1. Introduction

1. Introduction

Contents

1.1 Notices and restrictions

1.2 Matters not covered by this guide

1.3 The priority of competing interests: the reason why third-party interests require protection

1.4 Documents lodged with applications

1.1 Notices and restrictions

The Land Registration Act 2002 provides 2 types of entry for the protection of third-party interests affecting registered estates and charges: notices and restrictions.

  • A notice is an entry made in the register in respect of the burden of an interest affecting a registered estate or charge (section 32(1) of the Land Registration Act 2002)
  • A restriction is an entry in the register that prevents or regulates the making of an entry in the register in respect of any disposition or a disposition of a specified kind (section 40(1) of the Land Registration Act 2002)

This guide explains the nature and effect of notices and restrictions. It gives advice about when they are entered and how to apply for an entry. It also explains how existing notices and restrictions may be cancelled or amended.

The Land Registration Act 1925 also provided for the entry of notices and restrictions to protect third-party interests. Interests could also be protected by entries known as cautions against dealings and inhibitions. The effect of such entries under the transitional provisions of the Land Registration Act 2002 and Land Registration Rules 2003 are explained in Transitional provisions.

Before making an application to HM Land Registry to protect a third-party interest you should ask yourself the following questions:

  • What type of interest is being protected? (see Appendix A for more information about the most common types of interests).

  • Can the interest be protected by notice, and would this be more appropriate? For example, a notice will give priority (provided the interest is valid) but a restriction does not.

  • Is the interest only capable of protection by a restriction? For example, an interest under a trust of land can only be protected by a restriction (section 33 of the Land Registration Act 2002). See Interests that cannot be protected by notice for further information about the interests that cannot be protected by notice.

If a restriction appears to be the appropriate form of protection, you should also consider the further questions set out in Things to consider before applying for a restriction.

1.2 Matters not covered by this guide

This guide does not provide advice about third-party interests that must be completed by registration, such as legal charges, leases of land for over 7 years, or the express grant of legal easements out of registered land. Different provisions relate to bankruptcy notices and restrictions, and to notices in respect of (matrimonial) home rights; information about these is provided elsewhere and is not repeated in this guide.

Refer to the following practice guides for more information about other relevant topics:

1.3 The priority of competing interests: the reason why third-party interests require protection

The system of title registration introduced by the Land Registration Act 2002 aims to make the register a complete and accurate reflection of the state of the title to a registered estate at any given time (paragraph 1.5, Law Com 271 - Land registration for the twenty first century - A conveyancing revolution).

The proprietor of a registered estate can make a disposition of almost any kind permitted by the general law (section 23(1) of the Land Registration Act 2002) and someone dealing with the proprietor can assume that their powers are unlimited except for any restriction reflected by an entry in the register or imposed by or under the Land Registration Act 2002 itself (section 26 of the Land Registration Act 2002).

Where more than one party has an interest in a registered estate or charge, the general rule that decides the priority of each party’s claim is that each interest ranks in accordance with the date of its creation. Someone with an existing interest will not be affected by a later disposition (section 28 of the Land Registration Act 2002. Note that different general rules govern the priority between interests that were created before the Land Registration Act 2002 came into force).

However, there is one important exception. Someone who acquires a registrable disposition for value will, by registering their interest, postpone the priority of any other interest that has not been protected by the entry of a notice in the register (section 29 of the Land Registration Act 2002. Dispositions not made for value or for only nominal consideration do not have this effect). In other words, they will not be affected by interests that have not been noted. Not all interests are postponed in this way (section 29(2) of the Land Registration Act 2002). Certain interests have ‘overriding status’ and may bind someone who acquires a registrable disposition for value even if not entered in the register. However, many fewer interests have overriding status under the Land Registration Act 2002 than was the case under the Land Registration Act 1925. Refer to practice guide 15: overriding interests and their disclosure for more detail about interests with overriding status.

A notice entered in the register in respect of a third-party interest will protect its priority against that of a subsequent registrable disposition for value. A restriction, by preventing the registration of a subsequent registrable disposition for value, will prevent the priority of a third-party interest from being postponed.

1.4 Documents lodged with applications

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.

When uploading documents, you will be able to certify any scanned documents by confirming them to be a true copy of the original using the certification statements available.

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