Do Land Registry restrictions need updating after probate?
Yes, a Land Registry restriction may need to be updated, removed or replaced after probate, depending on its wording and the change in ownership. Probate itself does not automatically alter every restriction, so the register and supporting documents should be checked before the property is sold or transferred.
The need to deal with a Land Registry restriction depends on the exact wording of the entry and the transaction taking place after the death. A restriction is not the same as a charge or mortgage: it controls whether a disposition, such as a sale or transfer, can be registered unless specified conditions are met.
Probate establishes the authority of the personal representatives to administer the deceased’s estate, but it does not by itself satisfy every restriction. The personal representatives, surviving owners or trustees may still need to provide evidence, obtain consent, appoint additional trustees or apply to alter or cancel the entry.
Common restrictions that may be relevant include:
- A Form A restriction: this is commonly associated with property held by more than one owner as trustees. If one trustee dies, the restriction may continue to affect a sale. The remaining trustee may need another trustee or a trust corporation so that the sale proceeds can be dealt with correctly.
- A consent restriction: the register may require consent from a named person, lender, trustee or organisation before a transfer can be registered. The death of one owner does not necessarily remove that requirement.
- A restriction protecting a lender or creditor: this may require confirmation that a debt has been settled, consent has been given or a court order has been obtained.
- A restriction linked to a trust or court order: the wording may require particular evidence or approval before the property can be transferred.
The first practical step is to obtain an up-to-date official copy of the register and read the restriction in full. The wording normally explains what cannot be registered and what must accompany an application. It is important to check the proprietorship register as well as the charges register, because the identity of the registered owners, the form of co-ownership and any registered mortgage can affect how the restriction is handled.
The appropriate remedy may be one of several different actions:
- complying with the restriction as part of the sale or transfer;
- providing evidence that the person referred to in the restriction has died or no longer has the relevant interest;
- obtaining written consent from the required party;
- appointing a replacement or additional trustee;
- applying for the restriction to be cancelled or withdrawn; or
- applying for the wording to be modified where the existing entry no longer reflects the legal position.
A Land Registry application will usually need supporting evidence that matches the particular entry. Depending on the circumstances, this can include the grant of probate or letters of administration, a death certificate, a deed appointing trustees, a consent document, evidence of a lender’s discharge, or a court order. A probate grant alone may not prove that every condition in a restriction has been met.
Where the property is being sold, the conveyancer should identify the restriction before contracts are exchanged. The buyer’s solicitor and any mortgage lender involved in the purchase may require confirmation that the restriction can be complied with on completion. If the restriction is overlooked, the sale may complete contractually but the buyer’s transfer could be delayed or rejected when submitted for registration.
Some restrictions do not need to be removed before a sale. They may instead be dealt with through the transfer, the payment of sale proceeds, or evidence lodged with the registration application. Others must be removed or varied before the transaction can proceed. The distinction depends on the restriction’s wording and the legal capacity in which the personal representatives or trustees are acting.
Extra care is needed where the deceased was the sole registered proprietor, where there were joint owners, where a trust was involved, or where there is a mortgage, charging order, bankruptcy entry or disagreement about the estate. In these situations, an application made on the wrong form or without the required evidence can result in a requisition from HM Land Registry and further delay.
A conveyancer can compare the restriction with the grant of probate, the will, the ownership arrangements and the proposed transaction. They can then decide whether the entry should remain in place, be complied with, or be the subject of a separate application to HM Land Registry. If the property needs to be sold before the register is fully corrected, the conveyancer should also explain which steps must be completed before exchange and which can be dealt with during registration.
A probate sale does not always require the property to be registered first in the personal representative’s own name. Depending on the title and the terms of the restriction, the personal representative may be able to sign the transfer in that capacity and provide the grant of representation with the other required evidence.
This should be confirmed before the sale paperwork is prepared. Using the wrong capacity, or treating an executor as the beneficial owner rather than the estate’s representative, can create inconsistencies between the transfer, the register and the supporting documents. The conveyancer should ensure that the proposed transfer deals with the restriction in the way its wording requires.