Landnet 33 - Land Registry

For example, a restriction thatapplies only to transfers will notprevent the registration of a legalcharge. However, depending onhow the restriction is worded it mayrestrict the later registration of atransfer by the chargee exercisingits power of sale.We regularly encounter problemsarising from restrictions enteredin the register and in many casesthese problems are only discoveredby the parties when we inform themthat the restriction prevents theapplication being completed. It maybe more difficult for a purchaser (orother disponee) to resolve problemsafter completion of the dispositionhas taken place than it wouldhave been had the problems beenanticipated.The problems that arise are varied.Some just relate to compliancewith a restriction, some relate tocancelling the entry when it is nolonger needed and others arisewhere for whatever the reason therestriction is not or is no longeroperating in the way that it should.Complying with a restrictionAll restrictions should have beendrafted in a way that makes themeasy to understand and for us toadminister. It should be clear fromeach restriction whether or not aparticular disposition is caught and,if so, whether it is prevented fromregistration outright or whether it ispossible for registration to proceedif certain provisions are compliedwith.A restriction that permitsregistration if certain provisions arecomplied with will usually requireeither a person’s written consent ora certificate confirming compliancerather than requiring us to makea judgement about whether theunderlying provisions have beenmet. We will then only be concernedwith whether the necessaryconsent or certificate has beenprovided rather than whether ornot the applicant can demonstratecompliance with the underlyingprovisions.To be sure that it will be accepted,the wording of a certificate shouldfollow the wording required by therestriction precisely.Any consent or certificate must beprovided by the appropriate person.Where that person is a company orother corporation aggregate, rule 91Bof the Land Registration Rules 2003provides who can sign the consent orcertificate (unless otherwise specifiedin the restriction) and requires thefull name of the signatory and thecapacity in which they sign to bestated.A consent or certificate from anassignee or from the personalrepresentatives of the person namedin the restriction is unlikely to beacceptable.Cancelling a restriction that is nolonger requiredIf a restriction is no longer required,then, unless we decide to cancel itautomatically, an application willneed to be made to remove the entry.This is most straightforward wherethe persons with the benefit of therestriction apply for or consent toits being withdrawn in form RX4. Ifthe restriction requires a consent orcertificate from a named person, itis that person who should apply foror consent to the withdrawal of therestriction.Alternatively, anyone may apply tocancel a restriction in form RX3, but todo so they must produce evidence toshow that the restriction is no longerrequired. The applicant does not needto provide the consent of anyone forwhose benefit the restriction mayappear to have been lodged, but wemay decide in appropriate cases tonotify such persons of the applicationbefore proceeding.Restrictions that are not or are nolonger suitableMany of the problems that weencounter are with restrictions thatare not working in the way thatthey should. This may be becauseof mistakes made at the time theywere sought, or perhaps becausethe circumstances have sincechanged.Occasionally we make mistakesin drafting restrictions despite theapplications being properly made.If this has occurred, please contactus so we can investigate and decidehow best to correct the problems.In other instances errors aremade by the parties applying forrestrictions. The proprietor mayclaim that a restriction has beendrafted too widely (for example thatit prevents charges or leases frombeing registered when that wasnever intended) or that the wrongclause numbers in a documenthave been specified as having tobe complied with. In such casesthe parties may agree to apply fora more suitable restriction andat the same time to withdraw theexisting restriction (RX1 and RX4).If the persons with the benefit ofthe restriction are not available ordo not agree to the arrangementthe proprietors will need insteadto apply to cancel the existingrestriction (RX3).cont’d12