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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

3.7 Removal of a restriction entry

3.7 Removal of a restriction entry

3.7.1 Removal of restrictions

Restrictions may be removed from the register by:

  • being withdrawn voluntarily by the appropriate people interested in the restriction in form RX4 (section 47 of the Land Registration Act 2002 and rule 98 of the Land Registration Rules 2003)
  • an application by anyone to cancel a restriction that is no longer required in form RX3 (rule 97 of the Land Registration Rules 2003)
  • being cancelled by ourselves if it is clear that it is superfluous (paragraph 5 of Schedule 4 to the Land Registration Act 2002)
  • being cancelled by ourselves if it is a restriction entered in respect of a trust of land and we are satisfied the affected estate is no longer subject to the trust (rule 99 of the Land Registration Rules 2003); see practice guide 24: private trusts of land - Cancellation and withdrawal of restrictions for more information about cancellation of trust restrictions
  • an application by anyone to give effect to an order of the court directing or requiring the registrar to remove a restriction

Depending on its terms, a restriction may continue to have effect despite numerous changes of proprietorship, other dispositions and the lapse of time.

Someone intending to take a disposition of an estate or charge against which a restriction has been registered should therefore consider whether:

  • the disposition will be affected by the restriction and, if so, whether they can comply with its terms
  • the restriction may affect any later disposition they may wish to make

In appropriate circumstances they should take steps to ensure the restriction will be cancelled or withdrawn before committing themselves to complete the disposition.

If it is clear from the restriction that a specific party has the benefit of the restriction and that party provides either a completed RX4, or unambiguous written consent to the cancellation of the restriction, then removing the restriction should be straightforward.

However, if this is not the case, then before making an application to cancel a restriction you should consider whether you have evidence to show that the restriction is no longer required because either:

  • the interest protected by the restriction has come to an end, or
  • the interest behind the restriction no longer binds the estate for another reason

and the restriction is therefore superfluous.

Should you be able to demonstrate that either of the above points is met, then you can apply to cancel the restriction using form RX3 – but you must include the appropriate supporting evidence.

If neither of the above points can be satisfied then the restriction cannot be cancelled. However, you may be able to apply for disapplication using form RX2, but you will need to provide supporting evidence to show that you have complied with the requirements of the restriction. An application for disapplication will, if successful, allow the disposition to be registered subject to the restriction continuing to bind the title (see Applications to disapply or modify a restriction).

3.7.2 Removal of Form LL restriction

We may cancel a Form LL restriction automatically where it appears superfluous due to a transfer of the whole of a registered title to a new proprietor, and the certificate required by the restriction has been lodged – see Restrictions cancelled without application.

Where an application to cancel or withdraw the restriction accompanies an application to register a disposition other than a transfer of whole, you should lodge evidence of compliance with the restriction in order for the restriction to be cancelled or withdrawn – see Restriction in Form LL.

3.7.2.1 Application to cancel or withdraw a Form LL or company counter fraud restriction that does not accompany a disposition for registration

All the registered proprietors may agree to cancel or withdraw a Form LL or company counter fraud restriction. We will require a certificate from an individual conveyancer that they are satisfied that the people applying for or consenting to the application are the same people as the registered proprietors.

If we receive an application to cancel a Form LL or company counter fraud restriction without the involvement of all registered proprietors, we will need to consider carefully whether we can be satisfied that it is no longer required.

If we are not satisfied on the evidence lodged that the restriction should be cancelled or withdrawn, we will cancel the application and the restriction will remain in the register.

When giving a certificate, you must comply with the requirements detailed in Restriction in Form LL.

3.7.2.2 Application to cancel or withdraw a Form LL restriction by an attorney or deputy / application to cancel a company counter fraud restriction by an attorney

If an attorney or (in the case of individuals) a deputy is acting on behalf of the registered proprietor who originally applied to enter the restriction (or one of joint proprietors), an application for cancellation or withdrawal of the restriction must be accompanied by a certificate from a conveyancer that:

  • X is the [attorney] [deputy] of [the registered proprietor] [registered proprietor company] [name of individual joint proprietor]; and

  • the person applying for [cancellation] [withdrawal] of the restriction [alongside the other registered proprietor(s)] is the same person as that [attorney] [deputy].

Evidence of the appointment of the attorney or (in the case of individuals) deputy must also be lodged.

When giving a certificate, you must comply with the requirements detailed in Restriction in Form LL.

If the attorney is only acting for one of joint proprietors, the application must also be accompanied by the written consents of the other registered proprietors and a conveyancer’s certificate that that conveyancer is satisfied that the persons giving consent are the same persons as the other registered proprietors.

3.7.2.3 Application to cancel or withdraw a Form LL restriction by a trustee in bankruptcy

We will accept an application to cancel or withdraw a Form LL restriction by a trustee in bankruptcy provided that the application is otherwise in order and evidence of their appointment is lodged.

If the bankrupt is one of joint proprietors, the application must also be accompanied by the written consents of the other registered proprietors and a conveyancer’s certificate that that conveyancer is satisfied that those giving consent are the same persons as the other proprietors.

3.7.2.4 Application to cancel or withdraw a company counter fraud restriction by an insolvency practitioner

On the basis that an insolvency practitioner acts as an agent (or de facto agent in the case of liquidators), of the company, an application to cancel or withdraw a restriction by an insolvency practitioner can be accepted as long as it is otherwise in order.

Evidence of the appointment of the insolvency practitioner must accompany an application to withdraw the restriction.

If the insolvent company is one of joint proprietors, the application must also be accompanied by the written consents of the other registered proprietors and a conveyancer’s certificate that that conveyancer is satisfied that those giving consent are the same persons as the other proprietors.

3.7.3 Applications to cancel a restriction

Cancellation is the term used in rule 97 of the Land Registration Rules 2003 to refer to an application to cancel a restriction that is no longer required.

Any person may apply to cancel a restriction. The application must be made by including a ‘cancellation of a restriction’ transaction in your application and uploading form RX3 and no fee is payable.

If the restriction being cancelled is a Form A restriction, you can use form ST5 to supply the necessary evidence in support of your application. In the Digital Registration Service, you will be prompted to upload an RX3, you should upload an ST5. You should upload the completed RX3 and then upload the ST5 as supporting evidence.

Where the application to remove the restriction is made by or with the consent of the people having the benefit of the restriction, application should be made to withdraw the restriction. To apply you should include a ‘withdrawal of a restriction’ transaction as part of your application and upload form RX4 unless it is one of those restrictions referred to in Applications to withdraw a restriction, which cannot be withdrawn.

We will cancel the restriction if we are satisfied that the restriction is no longer required. The application must be accompanied by evidence to show that this is the case. If anyone is referred to in the restriction and if an address for service is listed for that person, we will usually notify them of the application and give them an opportunity to object to the application before cancelling the restriction.

Where a restrictioner has died and the terms of the restriction do not indicate that it will end upon death, or who is to have the benefit after death, then form RX3 must be supported by evidence to explain the nature of the interest protected by the restriction and, if appropriate, to demonstrate how such interest has come to an end.

Cancelling a landlord/management company restriction where a right to manage company (“RTM company”) has been appointed cannot be done without the following.

  • If the restriction protects the landlord’s management functions under the lease, and the right to manage has now been acquired by the RTM company, the consent of the RTM company, the landlord and the tenant.

  • If the restriction protects a management company’s management functions under the lease, and the right to manage has now been acquired by the RTM company, the consent of the RTM company, the management company and the tenant.

  • If the management company and the landlord are each responsible for the management functions under the lease, and the right to manage has now been acquired by the RTM company, the consent of the RTM company, the landlord, the management company and the tenant.

3.7.4 Applications to withdraw a restriction

Withdrawal of a restriction is the term used in section 47 of the Land Registration Act 2002 and rule 98 of the Land Registration Rules 2003. Rule 98(1) and (2) of the Land Registration Rules 2003 requires an application for the withdrawal of a restriction to be accompanied by ‘the required consent’. If we are satisfied the required consent has been given, we will remove the entry without investigating whether the restriction continues to serve any purpose.

To apply, include the ‘withdrawal of a restriction’ transaction in your application and upload form RX4; no fee is payable.

Restrictions cannot be withdrawn (rule 98(3) of the Land Registration Rules 2003) when they are:

  • those entered to prevent an unlawful or invalid disposition by a proprietor whose powers are limited by statute or under the general law
  • those entered as a result of an application by someone who was obliged to apply under rule 94 of the Land Registration Rules 2003
  • any the registrar is obliged to enter
  • those entered to reflect a limitation in an order of the court or the registrar or a limitation in an undertaking given in place of an order
  • any the court has ordered the registrar to enter

If one of these restrictions has ceased to apply, application to cancel the restriction should be made as described in Applications to cancel a restriction. It should be noted that a restriction in standard Forms U, V, W, X, Y, JJ and QQ will always fall within the above list and Forms A, B and C will very often come within rule 98(3) of the Land Registration Rules 2003.

The required consent is:

  • where the restriction requires the consent of a specified person, the consent of that person
  • where the restriction requires a certificate to be given by a specified person, the consent of that person
  • where the restriction requires notice to be given to a specified person, the consent of that person
  • where the restriction requires the consent of a specified person, or alternatively a certificate to be given by a specified person, the consent of all such people
  • in any other case, the consent of all people who appear to the registrar to have an interest in the restriction

Where the person consenting is not the same as the person referred to in the restriction, you must supply appropriate evidence of devolution of the right to consent.

However, where a restrictioner has died and the terms of the restriction do not indicate that it will end upon death, or who is to have the benefit after death, then in practice it will usually be impossible to withdraw the restriction. Application must be made for its cancellation.

The applicant must lodge all necessary consents when applying, but a conveyancer’s certificate confirming they hold the necessary consents is sufficient to comply with our requirements. The same requirements for consents in Complying with a restriction apply.

Where the application is to withdraw part of the land within an affected estate or charge from the effect of the restriction (for example in readiness for a transfer of that part), the part in question must be clearly identifiable from the application.

3.7.5 Restrictions cancelled without application

We may cancel a restriction without any application being made if it is clear that the restriction has become superfluous (paragraph 5(d) of Schedule 4 to the Land Registration Act 2002). We might cancel a restriction automatically where:

  • the restriction is limited in time and the relevant period has expired
  • the restriction was entered in connection with the registration of a charge which has now been discharged
  • the restriction was entered to protect an interest that has since been overreached by the payment of capital money arising on a registrable disposition to the proprietors who have given a valid receipt (for example Form A). A sole or surviving proprietor, registered with such a restriction, will need to appoint one or more new trustees to join in the disposition in these circumstances, otherwise overreaching will not have occurred. See section 7.2 of practice guide 24: private trusts of land
  • the restriction was entered in relation to a limitation on the powers of a previous proprietor
  • we register a transfer under a power of sale by the proprietor of a registered charge whose powers were not affected by the restriction
  • a Form LL or company counter-fraud restriction was entered at the request of a registered proprietor, an application is subsequently received to register a transfer of the whole of the registered title to different proprietors, and the necessary evidence of compliance with the restriction has been lodged
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