Land Registry update
Land Registry update: the Form A restriction
Andrew Robertson responds to points raised by CILEx members about the Form A restriction.
About the author
Andrew Robertson is head of customer policy and handling at Land Registry.
It is not uncommon for the circumstances and arrangements for the joint owners of property to change. Often in that situation a conveyancer will need to consider whether this change affects the type of joint ownership under which the property is held. If it does, then application may need to be made to Land Registry to reflect this in the register.
Perhaps the most common scenario is where a joint tenancy has been severed, either expressly by the owners or by operation of law, for example, if one of the beneficial joint owners is declared bankrupt. In cases where it is the owners who have severed their joint tenancy, application must be made to Land Registry to enter a restriction in standard Form A (also known as a joint proprietors restriction) in the register.
The conveyancer should check first to see if there is a Form A restriction already in the register. Where there is already a Form A restriction in the register, a second one cannot be entered. This is because the purpose of a Form A is to ensure that interests behind the trust are not overreached; it does not give notice of an individual’s interest under a trust. Form A restrictions might have been entered, for example, following an application by a beneficiary under a trust of land.
Where there is not a Form A restriction and severance has been effected, Land Registry will require either:
- a Form SEV Application to enter Form A restriction on severance of joint tenancy by agreement or notice; or
- a Form RX1 Application to enter a restriction. Some additional evidence will also be needed, as follows:
- a certified copy of a new (or changed) trust deed signed by all the owners; or
- a certified copy of the notice of severance given by one owner to the other(s) signed by the owner(s) to whom the notice was sent; or
- a certified copy of the notice of severance given by one owner to the other(s) and a certificate by the person making the application confirming that the notice was either:
- given to the other owner(s); or
- left at their last known residential or business address in the UK; or
- sent by registered post or recorded delivery to them at their last known residential or business address and has not been returned as undelivered.
In the case of a tenancy in common that is now a joint tenancy, a conveyancer should, first of all, also check to see whether or not there is a Form A restriction in the register. There ought to be one, but it is worth checking because if there is no restriction then, strictly speaking, it will not be necessary to make any application to Land Registry. The reason for this is because the register is not definitive as to what kind of joint tenancy a property is held under, and there may be a number of situations where joint ownership status may change without Land Registry being informed. Regardless of whether there is a restriction, a conveyancer would still need to formalise the change, for example, by amending an existing trust deed – but it will not be necessary to make any application to Land Registry.
Where there is already a Form A restriction in the register, a second one cannot be entered. This is because the purpose of a Form A is to ensure that interests behind the trust are not overreached
If there is a Form A restriction, then application should be made to Land Registry to remove it, requiring the following:
- a Form RX3 Application to cancel a restriction, signed by all owners or by a conveyancer on their behalf; and
- supporting evidence, ie, either:
- a certified copy of the new or changed trust deed showing that everyone with a share or interest in the property agrees to the change; or
- a certified copy of a transfer showing that all the owners of shares in the property transfer their shares to all the beneficial joint tenants; or
- a certificate by a conveyancer showing that all the owners of shares in the property have entered into a deed in one of the forms referred to above. The supporting evidence must show: - that nobody else except the named joint owners have shares of the property;
- that none of the joint owners is being made bankrupt, has a charging order from creditors or is mortgaging their share of the property; and
- all the joint owners now own the property together as beneficial joint tenants.
See Land Registry’s Practice guides 19 and 24 for more information.1
A transfer by order of the court such as a transfer of the matrimonial home following settlement of divorce proceedings does not, by itself, operate to cancel a Form A restriction unless the court order requires the registrar to cancel the restriction. A specific application is needed in order to remove the restriction.
Even though a transfer is required by court order, evidence is still required to show that no other person has an interest under the trust which was being protected by the restriction in the register. This principle also applies in cases where a transfer made pursuant to a court order is executed by all of the joint owners.
In all circumstances, Land Registry needs evidence regarding the equitable title before the restriction can be removed. The presence of a Form A restriction in a register indicates that this is trust property, and Land Registry needs evidence to show that the trust has come to an end: section 6.2 of Land Registry’s Practice guide 24 refers.
In the case of a transfer by order of the court, Land Registry will need a completed Form RX3, supported by the appropriate evidence, to show that the restriction is no longer required as mentioned earlier.2
Application Enquiry
Do not forget that if you use Land Registry’s online portal, you can now view the progress of applications in real time, at any time. Application Enquiry is free to use, replacing the previous Day List Enquiry service. Reduce calls to Land Registry, find applications easily and use the information to get an update on progress.3
1 Practice guide 19: notices, restrictions and the protection of third party interests in the register, available here, and Practice guide 24: private trusts of land, available here.
2 Available here
3 Visit here