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

3.3 The form of a restriction

3.3 The form of a restriction

3.3.1 Standard form restrictions

The effect of a restriction must be clear from its wording and its administration must not place us under an unreasonable burden. Schedule 4 to the Land Registration Rules 2003 prescribes a number of standard form restrictions that are intended to cover the vast majority of applications made.

These are set out in Appendix B: standard form restrictions.

The standard form restrictions are worded in a clear manner so that we, and someone inspecting the register, will be able to determine whether a given application will be caught by its terms and, if so, what action needs to be taken to allow the application to proceed.

To prevent a restriction causing unforeseen problems, and to help consideration of your application, please take note of the questions listed in Things to consider before applying for a restriction when preparing an application for a restriction.

When applying for a standard application, remember that:

• words in [square brackets] in ordinary type are optional parts of the form; the brackets are not to be included in the restriction
• words in {curly brackets} re instructions for completion of the form, and are not to be included in the restriction
• where (round brackets) enclose one or more words, the brackets and all words in ordinary type enclosed in them are part of the form and, unless also enclosed in [square brackets], must be included in the restriction
• where a form contains a group of clauses introduced by bullets, only one of the clauses may be used; the bullets are not to be included in the restriction
• where a restriction in Form J, K, Q, S, T, BB, DD, FF, HH, JJ, LL or OO relates to a registered charge, which is one of two or more registered charges bearing the same date and affecting the same registered estate, the words ‘in favour of’ followed by the name of the registered proprietor of the charge must be inserted in the restriction after the date of the charge
• while some standard restrictions allow reference to compliance with a specific clause in a deed, they do not allow wording which refers to the deed as a whole, “all clauses” or similar: such references would make the restriction non-standard
• where the wording of a restriction in Schedule 4 to the Land Registration Rules 2003 provides for a certificate or consent to be given by the restrictioner ‘[or [their conveyancer or specify appropriate details]’, the words ‘or specify appropriate details’ should refer to a class (or classes) of person who may be expected to act on behalf of the restrictioner rather than to a particular named individual. Please also remember that, as explained in Certificate or consent by corporation aggregate, rule 91B will apply to a certificate or consent given by a corporation aggregate - unless a contrary intention appears in the restriction
• any additional descriptive text will make the restriction non-standard – see the penultimate paragraph of Adapt the restriction to suit your circumstances. Similarly, the option to “specify appropriate details” should not be used to insert the name of a second signatory, or the name of a second signatory plus a description
• a standard restriction cannot be amended to commence with the words ‘no dealing’ or ‘no disposition or dealing’, nor can wording be used to prevent noting (as opposed to registration) of a disposition
• a restriction that refers to “No disposition … “, will catch, among other things, transfers, leases, charges and the grant, reservation or variation of easements
• a restriction affecting a freehold title that requires a certificate from a conveyancer may be preferable to one that requires a certificate from, for instance, a specific management company because difficulties might arise if, for example, the company is subsequently dissolved or replaced

3.3.1.1 Adapt the restriction to suit your circumstances

Rule 91A of the Land Registration Rules 2003 allows the following amendments to the standard restrictions. They are:

• where a standard form restriction is intended to affect part of a registered estate the words ‘No [disposition {or specify type of disposition}] of the registered estate’ [should be replaced by ‘No disposition {or specify type of disposition} of the part of the registered estate]’ followed by a sufficient description, by reference to a plan or otherwise, to clearly identify the part affected

• a restriction in standard Form L, M, N, O, P, S, T, II, NN, OO or PP may commence with the word ‘Until’ followed by a date
• a restriction in standard Form L, N, S, T, II, NN or OO may commence with the words ‘Until the death of {name}’ or ‘Until the death of the survivor of {names of 2 or more people}’
• where the words ‘they’ or ‘their’ occur in a standard form of restriction, they may be replaced, as appropriate, by ‘he’, ‘she’, ‘it’, ‘his’, ‘her’ or ‘its’ if they refer to a person or corporation named in the restriction
• where a standard form of restriction permits the type of disposition to be specified, the word ‘disposition’ may be replaced by ‘transfer’, ‘lease’, ‘charge’, ‘sub-charge’ or any combination of these, but not by anything else
• where a restriction applied for is in standard Form L, M, O, P, S, NN, OO or PP, consideration should be given to including the words ‘[or that they do not apply to the disposition]’ within the restriction because without them, a certificate cannot be given in the future that the restriction does not apply to the particular transaction lodged

By way of example, set out below are two variations on a standard Form L restriction. The first example will catch all dispositions by the proprietor of the registered estate or the proprietor of any registered charge (aside from those registered before the entry of the restriction) but allows for a certificate by any conveyancer. The certificate must confirm that the provisions referred to in the restriction have been complied with or do not apply to the disposition. In contrast, the second example will only catch transfers of the registered estate by the registered proprietor - but the certificate must be provided by a specific person and it must confirm that the stated provisions have been complied with.

As well as the options allowed by rule 91A referred to above, which include provisions for restrictions that will cease to have effect on the death of a named person or people, the wording of restrictions in standard Form L, N. S, T, NN and OO allow for the inclusion of wording to show who should give the certificate or consent if the restriction is to continue to have effect after the death of the person named in the restriction. Thought should always be given to making use of these options when the restrictioner is a person as they can make later applications for cancellation, withdrawal or modification considerably more straightforward for both the applicant and HM Land Registry. The options include:

• adding ‘or their personal representatives’ after the name and address of the person required to give a certificate or consent by the restriction
• adding ‘or after that person’s death by {name} of {address}’ after the name of the restrictioner if the restriction is to continue to have effect after the death of the restrictioner but it is not appropriate that the restrictioner’s personal representatives give the consent or certificate
• using ‘{name} of {address} and {name} of {address} or the survivor of them’ where more than one person is named in the restriction and there is a right of survivorship to the interest protected by the restriction
• using ‘{name} of {address} and {name} of {address} or the survivor of them or by the personal representatives of the survivor’ if the restriction will continue to have effect after the death of the survivor of the people named

Additionally:

• ‘or by {name} of {address}’ may be added after the name of the restrictioner if they wished to allow an alternative second person to give the consent or certificate

The additional wording should only be used where it is shown as an option in the wording of the standard restrictions.

Other practice guides in this series provide information about standard form restrictions that should or may be applied for or entered in particular situations.

Any amendment not provided by rule 91A or which goes beyond those explained in Standard form restrictions will make the restriction non-standard. For example, the {name} field in the standard restrictions does not allow for additional descriptive text such as details of the particular office or function of the restrictioner. If a restriction is required in favour of, for example, ‘X, the supervisor of …’ application should be made for a non-standard restriction. Similarly, reference to X, the trustee of … will also make the wording of the restriction non-standard.

Restrictions in Form L, M, O, P, S, NN, OO and PP that require compliance with all of the provisions in a deed or other document (rather than certain specified clauses) will also make the restriction non-standard.

3.3.2 Restrictions not in a standard form

You should only apply for a restriction that is not in a standard form if none of the standard form restrictions is appropriate.

Where there is no appropriate standard form available we will only approve the form that you have applied for if:

• it is reasonable
• its application would be straightforward
• its application would not place us under an unreasonable burden (section 43(3) of the Land Registration Act 2002)

Please remember that when applying for a restriction not in standard form:

• it must always contain the words ‘is to be completed by registration’ rather than ‘is to be registered’. This will serve to make the effect of the restriction clear. The term ‘registered’, where used in any of the standard form restrictions, means the completion of a registrable disposition by complying with the relevant registration requirements prescribed in Schedule 2 to the Land Registration Act 2002 (rule 91(3) of the Land Registration Rules 2003), but this statutory definition only applies to standard form restrictions. Please note that we will not accept restrictions not in standard form for registration that contain the words ‘is to be registered’
• if the restriction affects part only of a registered extent it must contain a sufficient description, by reference to a plan or otherwise, the part affected must be clearly identified
• do not commence the wording of the restriction with ‘No dealing’ or ‘No disposition or dealing’ or use wording to prevent noting (as opposed to registration) of a disposition
• before you finalise an agreement in which the parties agree to apply for a non-standard restriction in a specified form, check with us the proposed form is acceptable; it can prove difficult to renegotiate the terms of an unacceptable restriction after an agreement has been made

Please also remember that restrictions entered in the register prior to the introduction of the Land Registration Act 2002 (before 13 October 2003) will often use an obsolete form of wording. Furthermore, the wording of most obsolete restrictions will not be acceptable for use in a new non-standard restriction. In addition, our practice and rules have also periodically changed since the introduction of the Land Registration Act 2002. Therefore, applicants should not assume that the wording of a restriction that already appears in the register of a title will automatically be acceptable for a new restriction.

As we must consider the appropriateness of any restriction applied for that is not in a standard form, the application fee prescribed in the current Land Registration Fee Order is higher that that for a standard restriction, see HM Land Registry: Registration Services fees.

A common example of a non-standard restriction is one that identifies leases that are not intended to be caught by the restriction. An example of this type of non-standard restriction is set out below with the non-standard wording in square brackets.