For context, see our announcement ‘Reduced regulation of English social housing providers: registration requirements’ on GOV.UK.
This is an explanation of what is required when lodging an application for registration with HM Land Registry on or after 6 April where one of the following restrictions appear in the register.
Section 172 of the Housing and Regeneration Act 2008
Restriction: No disposition of the registered estate by the proprietor of the registered estate is to be completed by registration without a certificate by the registered proprietor signed by their secretary or by two trustees if a charitable trust or by their conveyancer that the provisions of section 172 of the Housing and Regeneration Act 2008 have been complied with or that they do not apply to the disposition
As the requirements for disposal consents contained in section 172 of the Housing and Regeneration Act 2008 will be revoked on 6 April, this restriction will not apply to disposals made on or after that date and can be disregarded. If a disposal is made before 6 April, you will need to enclose evidence of compliance with your application.
Under regulation 6 of the Transitional Provisions (TP) Regulations, any disposal made before 6 April 2017 that would have needed consent under section 172 is deemed to have the consent of the Regulator of Social Housing, but this deeming provision only takes effect from 6 April.
Section 9 of the Housing Act 1996
Restriction: No disposition of the registered estate by the proprietor of the registered estate is to be registered without a certificate signed on behalf of the proprietor by its secretary (or by two trustees, if a charitable trust) or its solicitor or licensed conveyancer that the provisions of section 9 of the Housing Act 1996 have been complied with.
The requirements for the section 172 restriction apply in the same way to this restriction.
HM Land Registry will be seeking to remove all section 172 restrictions from registers where they appear after 6 April. This can be done under powers in Paragraph 5 of Schedule 4 to the Land Registration Act 2002 as the restrictions will be superfluous. We will also remove the section 9 restrictions (both in the current or previous formats) where it is clear that the restriction relates to a private registered provider and the property is in England.
Restrictions in standard forms W, X, Y and KK in Schedule 4 to the Land Registration Rules 2003
The repeal of the consent regime made by Schedule 4 to the 2016 Act also means that there will be consequential changes to our standard forms of restriction W, X, Y and KK, so that they will no longer apply to private registered providers in England (item (a) in standard form restrictions W and X is being repealed). They will continue to apply to English local authorities and to registered social landlords in Wales. These changes are to be made by amendments to the wording of these four restrictions by the Consequential Provisions (CP) Regulations. The amended versions that will be effective from 6 April are set out below.
HM Land Registry will be updating these four standard form restrictions in registers after 6 April so they read as amended by the CP Regulations.
You will still need to enclose evidence of compliance for any disposal made before 6 April but the restrictions can be disregarded for disposals by an English private registered provider made on or after 6 April.
Deemed consent
If consent was required from the Regulator of Social Housing for a disposal made prior to 6 April 2017 but not obtained, regulation 6 of the TP Regulations deems the Regulator of Social Housing to have granted consent. Please note that the provision for deemed consent in regulation 6 of the TP Regulations only applies to the consents that were required by section 172 of the Housing and Regeneration Act 2008. There appears not to be deemed consent in relation to consents required but not obtained before 6 April under:
- section 81 Housing Act 1988
- section 133 Housing Act 1988
- section 173 of the Local Government and Housing Act 1989
There does not appear to be deemed consent under section 9 of the Housing Act 1996 after 6 April 2017 for disposals made in England without the consent of:
- Housing Corporation - if the disposal was made prior to 1 December 2008
- Regulator of Social Housing - if the disposal was made between 1 December 2008 and 31 March 2010
Restrictions in standard forms W and X in Schedule 4 to the Land Registration Rules 2003
Form W
Restriction: No disposition (except a transfer) of a qualifying dwelling-house (except to a qualifying person or persons) is to be registered without the consent of -
(a) in relation to a disposal of land in England, the Secretary of State, or
(b) in relation to a disposal of land in Wales, the Welsh Ministers,
where consent to that disposition is required by section 171D (2) of the Housing Act 1985 as it applies by virtue of the Housing (Preservation of Right to Buy) Regulations 1993.
Form X
Restriction: No disposition by the proprietor of the registered estate or in exercise of the power of sale or leasing in any registered charge (except an exempt disposal as defined by section 81(8) of the Housing Act 1988) is to be registered without the consent of -
(a) in relation to a disposal of land in England, the Secretary of State, and
(b) in relation to a disposal of land in Wales, the Welsh Ministers,
where consent to that disposition is required by [section 81 of that Act] or [section 133 of that Act] or [section 173 of the Local Government and Housing Act 1989].
Restriction in standard Form Y
Restriction: No transfer or lease by the proprietor of the registered estate or by the proprietor of a registered charge is to be registered unless a certificate by [specify relevant registered social landlord] is given that the transfer or lease is made in accordance with section 13 of the Housing Act 1996.
This restriction is also amended by the CP Regulations (and by the repeal under paragraph 17, Part 1, Schedule 4, Housing and Planning Act 2016) so that it will no longer apply to private registered providers in England after 6 April, and again the deemed consent in regulation 6 of the TP Regulations will not apply. So, where this restriction appears and the transfer or lease is made before 6 April by a private registered provider, you will still need to enclose a certificate by the relevant social landlord that the transfer or lease is made in accordance with section 13 of the Housing Act 1996.
Restriction in standard Form KK
Restriction: No deed varying the terms of the registered lease of property in Wales is to be registered without the consent of the Welsh Ministers.
This restriction will only appear in a small number of registers for English titles as most were removed some years ago. The CP Regulations amend this restriction so it will only apply in relation to leases by social landlords in Wales.
Where the restriction appears in a register for a property in England it can be disregarded.
14 comments
Comment by W. Pethers posted on
What is my land is not registered and I don’t want to sell it? Can I be forced to part with it in law?
WP
Comment by ianflowers posted on
We don't hold information on unregistered land and cannot advise you as you as to the legal position. You may want to consider getting some independent advice, for example, from Citizen's Advice or from a conveyancer, such as a solicitor.
Comment by Andrew Henson posted on
Hi I have an access to the back of my garden which is for my wheely bins to take round l have lived at my property for 27 Years I have always used this access ie bins ,gardening, I have now got new neighbours who have lived there 14 months they saying that the access which runs along the back of there boundary is there land I have my deeds & land registry plans but They are still saying that the access is there land.This is now a desperate situation as the neighbour said he is going to put a fence across the access and block my access to the back of my garden I fear this situation will end up with violence. I do not want this to happen but I am not going to sit back and let this happen. Can you please help
Comment by AdamH posted on
Andrew - I'm sorry to read of the issues you are facing but it's not something we can advise you on I'm afraid and it is very much legal advice you need. Our PG 52 explains how rights can be acquired, claimed and registered but you need to confirm your legal position before doing anything else
https://www.gov.uk/government/publications/easements-claimed-by-prescription
If you are looking for wider online comment then public forums such as Garden Law or Money Saving Expert can be useful resources but it's still legal advice we would recommend
Comment by Rita posted on
Hi,
I also have the same situation whereby the conveyance has granted the rights pursuant to Paragraphs 2 and 3 of Part 1 of Schedule 6 to the Housing Act 1985. The HMLR has also made corresponding entry against our title stating "the easements and rights specified in paragraph 2 of Schedule 6 of the said Act".
The initial vendor (local council - the legal department) has also confirmed us in writing saying that the conveyance has granted the necessary rights and it has met the requirements of Housing Act 1985.
I have used 3 solicitors to fight for my rights granted by the conveyance and they are pretty much useless. My next door's solicitor mentioned on his letter specifying that this piece of legislation is vague and land law is complex and therefore, we cannot even access our own property over the passageway. He's bullying and taking advantage of the situation.
If the rights granted in the conveyances by the initial vendor pursuant to Paragraphs 2 and 3 of Part 1 of Schedule 6 to the Housing Act 1985 are not appurtenant to the title and are not recognised by the solicitors and lawyers, it is nothing other than deeply misleading and confusing to the innocent general public. The conveyancer confirmed us that we can access the neighbouring land under this act, given part of the property (room, brickwork, guttering) is above the passageway. But the dilemma I am facing now is that my next door neighbour and their solicitor are saying that I do not have legal rights.
Sadly, the Land Registry has also not indicated a right of way over a piece of neighbouring land on the title plan nor noted of its existence on the title register under this ACT. This has also given an opportunity for solicitors to take advantage of this situation. During the purchasing process, if the conveyancer made me aware of this situation, I would not make the mistake by purchasing ex council house and would not suffer financially, mentally and socially.
The predecessors of both properties have also signed the Statutory Declaration stating that the rights were actively used on a regular basis prior to the date of conveyance, at the time of conveyance and continued to do so thereafter as the rights were standard to both properties.
Please, please let me know if you have come across this sort of situation and how you managed to get your rights that's already granted by the conveyance and HMLR has also made the corresponding entry by referencing the piece of legislation.
Please can you suggest whether or not that the HM Land Registry can play a crucial role to re-register the rights on the basis of the conveyance, title, statutory declaration provided by predecessors (both properties) and fundamentally, the confirmation of those rights by the initial vendor pursuant to paragraphs 2 and 3 of Part 1 of Schedule 6 to the Housing Act 1985 against our title?
Many thanks,
Comment by AdamH posted on
Rita - rights/easements are registered on the basis of an application made along with supporting evidence. Our PGs 52 (claimed rights) and 62 (granted rights) explain the registration requirements as each is distinct from the other https://www.gov.uk/topic/land-registration/practice-guides
I would recommend seeking wider and further legal advice as to what the Housing Act you refer to actually refers to re rights granted and or reserved
Comment by Steve Bannell posted on
Hi
i am looking at purchasing a lease that is being granted out of a freehold title that currently has the following restrictions registered:
2. RESTRICTION: Except under an order of the registrar no disposition by the proprietor of the land or in exercise of the power of sale or leasing in any registered charge (except an exempt disposal as defined by section 81(8) of the Housing Act 1988) is to be registered without the consent of the Secretary of State to that disposition under the provisions of section 133 of that Act.
3. RESTRICTION: Except under an order of the registrar no disposition (except a transfer) of a qualifying dwellinghouse (except to a qualifying person or persons) is to be registered without the consent of the Secretary of State given under section 171D(2) of the Housing Act 1985 as it applies by virtue of the Housing (Preservation of Right to Buy) Regulations 1993.
The Freeholder is a community benefit association and says that these restrictions no longer have to be complied with. I disagree and would like the restrictions removed or consent provided.
Can you advise if they are redundant?
Comment by ianflowers posted on
Steve - Hi. The blog whilst being quite technical, sets out the position for English Social Providers.
In general terms, the two restrictions you refer to no longer apply to private registered providers in England for disposals made on or after 6 April 2017. So, if the freeholder is a private registered provider and your purchase is made on or after 6 April 2017, the restrictions no longer apply and we do not require consent for the restrictions.
Comment by Lors posted on
How do I find out if my sons council offer falls under a post WW2 prefab build as he has disabilities and fear if the house is this type it may not be suitable, as such properties were not suppose to last longer than 15 years. how do I find this out, the street is calderhall terrace east calder,
Comment by AdamH posted on
Lors - we register land and property and don’t record the type of building erected. I imagine you’d need to get a surveyor’s report and/or ask the council to advise/confirm
Comment by Paul GM posted on
I purchased a former shared ownership home in 2016 where the seller had staircased up to 100% ownership. Forms DC5 and RX4 where applied to the register. I am currently selling the property but the buyers are saying that there is a restrictive affordable housing covenant still active on the property. Should the covenant have been released when the DC5 was applied.
Comment by AdamH posted on
Paul - although an RX4 is one of our forms used to withdraw a restriction, I am unaware of what a form DC5 is used for
Comment by Paul GM posted on
Hi Adam.
Many thanks for your reply.
A form DC5 was a certification of a disposal completed under General Consent 2015. The form also serves as a Land Registry notification DC6 application for a direction under s.76 HRA 2008 that a specified dwelling should cease to be social housing.
I believe these forms have been replaced by an online only process.
A problem has arisen because a restrictive covenant apparently exists stating 'Not to use or permit to be used the buildings erected on the land hereby conveyed for any purpose other than the provision of affordable housing.
My question is does the DC5 form release the covenant or if not render it unenforceable.
Any help greatly appreciated.
Comment by AdamH posted on
Paul GM - I think you may need to look at the restrictions the 2008 Act imposed as such matters have been registered as restrictions on a registered title, and not as restrictive covenants. The General consent for example relates to no such consent generally being required where such a restriction exists on the registered title being disposed of.
Have you checked the registered title which is subject to the disposal? If so what is it’s title number?