Guidance

Practice guide 24: private trusts of land

Updated 27 August 2024

Applies to England and Wales

Please note that HM Land Registry’s practice guides are aimed primarily at solicitors and other conveyancers. They often deal with complex matters and use legal terms.

1. Introduction

1.1 The nature of a trust of land

The essence of a trust of land is that the formal title to the land (the ‘legal estate’) is separated from the underlying ownership (the ‘equitable interest’ or ‘beneficial interest’).

A private trust of land can arise in several ways:

• it may be expressly created in writing (writing is necessary (section 53(1)(b) of the Law of Property Act 1925))
• it may be a bare trust where the trustee is merely a nominee for a beneficiary of full age
• it may arise by operation of law either:
  • as an implied, resulting or constructive trust, for example where the proprietor has acquired the land using funds provided by another, or
  • as a statutory trust - examples are those imposed when two or more persons own land jointly (sections 34 and 36 of the Law of Property Act 1925) or on intestacy (section 33 of the Administration of Estates Act 1925)

Historically, two or more persons owning land jointly could do so either as joint tenants or tenants in common. Joint tenants do not have specific shares in the land and have a right of survivorship. On the death of one joint tenant, their interest in the land passes automatically to the others. Tenants in common, however, had specific shares, known as undivided shares, which could be transferred separately, and were inherited as part of their estate on their death. (They became divided shares if the land was partitioned, so that each became the sole owner of part of it.) The shares might be equal or unequal.

Since 1925, it has been impossible for a legal estate to be held as a tenancy in common (sections 1(6) and 34 of the Law of Property Act 1925). Joint owners must hold the legal estate as joint tenants, but their beneficial interests may be held either as joint tenants or as tenants in common.

This was intended to simplify conveyancing. Purchasers (this means a person who acquires an interest in or charge on property for money or money’s worth – section 205(1)(xxi) of the Law of Property Act 1925) of unregistered land from joint owners are not concerned with the beneficial interests. They do not need to know – and are not entitled to know – whether the proprietors of the legal estate hold on trust for themselves as beneficial joint tenants, or as beneficial tenants in common, or on trust for other persons altogether. Provided the purchasers pay the purchase price to at least two trustees of land, the beneficial interests are overreached, and the trust attaches to the proceeds of sale, freeing the purchasers’ estate from it (sections 2 and 27 of the Law of Property Act 1925).

Furthermore, if one or more of the joint proprietors has died, a purchaser can safely deal with the survivors in the knowledge that the legal estate has passed automatically to them, whatever may be the case with the beneficial interests. If there is only one survivor, then one or more additional trustees must be appointed so that the beneficial interests can be overreached in favour of a purchaser.

The appointment of one or more additional trustees will trigger compulsory first registration if the legal estate is an unregistered freehold estate or an unregistered leasehold estate with more than seven years to run. See The new trustee trigger and practice guide 1: first registrations for further information.

1.2 Beneficial joint tenants

An anomaly arises when two (or more) persons hold the legal estate on trust for themselves as beneficial joint tenants. This situation was unusual in 1925; it is now very common indeed. When the number of joint tenants has reduced to one, they are the sole legal and beneficial owner and the trust has come to an end. But a purchaser will not know this unless the equitable title is deduced – the very problem that the 1925 legislation was designed to avoid. The choice was therefore either to deduce the equitable title, or to appoint a second trustee purely to give a good receipt for the purchase money.

A third, simpler, solution was provided by the Law of Property (Joint Tenants) Act 1964. The survivor is deemed, in favour of a purchaser, to be the sole beneficial owner if:

• they convey as beneficial owner, or the conveyance contains a statement that they are solely and beneficially interested in the property
• no memorandum of severance is endorsed on the conveyance that vested the legal estate in the joint tenants
• no bankruptcy petition or order is registered as a land charge against any of the joint tenants

At the time this Act was passed, a conveyance ‘as beneficial owner’ imported various standard covenants for title, so the phrase was commonly used. Unfortunately, since 1 July 1995 (when the Law of Property (Miscellaneous Provisions) Act 1994 came into force) the standard covenants for title have been imported by the phrase ‘with full title guarantee’. Care therefore needs to be taken, in unregistered conveyancing, to include, where necessary, a statement that a sole surviving joint tenant is solely and beneficially interested.

1.3 Trusts of land in registered conveyancing

In registered conveyancing, the position is simpler. The register records the ownership of the legal estate, not the beneficial interests, and the registrar is not affected with notice of a trust (section 78 of the Land Registration Act 2002). As far as possible, references to trusts should be kept off the register. A person dealing with the registered proprietors can assume that they have unlimited power to dispose of the estate or charge concerned, free from any limitation affecting the validity of the disposition, unless there is a restriction or other entry in the register limiting their powers, or a limitation imposed under the Land Registration Act 2002 (section 26 of the Land Registration Act 2002). So, for example, if two or more persons are registered as joint proprietors, a purchaser can safely acquire the legal estate from the survivor of them, unless there is a restriction to the contrary in the register (the restriction will normally be Form A – see Form A: the joint proprietorship restriction).

With private trusts, the duty of applying for any necessary restrictions falls on the trustees, though a beneficiary may also apply. The registrar is obliged to enter a restriction without application in only one circumstance, though may do so in certain other cases if it appears to be necessary or desirable (section 42(1) of the Land Registration Act 2002). The case when the registrar is obliged to enter a restriction is when registering two or more persons as joint proprietors of a registered estate. A Form A restriction must then be entered unless the registrar is satisfied that the applicants hold on trust for themselves as beneficial joint tenants (section 44(1) of the Land Registration Act 2002 and rule 95(2) of the Land Registration Rules 2003. See Form A: the joint proprietorship restriction. The registrar is also obliged to enter restrictions in certain cases involving public or charitable trusts).

There are no HM Land Registry forms specifically for registering dispositions to or by trustees. The standard forms prescribed in Schedule 1 of the Land Registration Rules 2003 must be used. For example, a transfer of the whole of a registered title to or by trustees must be in form TR1. An application to register trustees as proprietors of an estate should be made in form FR1 (if it is a first registration) or form AP1 (if it is a disposition of a registered estate), in the usual way.

1.4 Compulsory first registration of land held under a trust of land

1.4.1 Background

The events that trigger compulsory first registration of title are listed in section 4(1) of the Land Registration Act 2002. See practice guide 1: first registrations for details of these events and guidance on the procedure to be followed when applying for first registration of unregistered land.

From 6 April 2009, two new events that trigger compulsory registration of title to land held under a trust of land were added to the triggers listed in section 4(1) of Land Registration Act 2002 by the Land Registration Act 2002 (Amendment) Order 2008. These new triggers are referred to as the “new trustee trigger” and the “partition trigger”.

1.4.2 The new trustee trigger

The new trustee trigger applies when an unregistered freehold estate or an unregistered leasehold estate with more than seven years to run is transferred to a new trustee by deed, or by a vesting order under section 44 of the Trustee Act 1925 made in consequence of the appointment of a new trustee (section 4(1)(aa) of the Land Registration Act 2002).

The deed which transfers the legal estate to a new trustee (and any continuing trustees) may be the deed of appointment of the new trustee, if it contains an express vesting declaration or one that is implied under section 40 of the Trustee Act 1925 or a memorandum executed as a deed evidencing the appointment of a new trustee by a resolution to which section 334 of the Charities Act 2011 applies, or it may be a separate conveyance or assignment by deed that is made in consequence of the appointment of a new trustee.

Section 334 of the Charities Act 2011 applies not only to charities, but also, by section 334(6), to any institution to which the Literary and Scientific Institutions Act 1854 applies, although such an institution will often be a charity in any event. See also Appointment or discharge of trustees by resolution of the trustees.

A vesting order under section 44 of the Trustee Act 1925 can be made by the High Court or by the County Court to vest land in a new trustee appointed by the court under section 41 of the Trustee Act 1925 or out of court.

The new trustee trigger does not apply when an unregistered freehold or leasehold estate held in trust for a trade union or an unincorporated employers’ association (including a federated employers’ association) is transferred on the appointment of a new trustee where section 13 of the Trade Union and Labour Relations (Consolidation) Act 1992 applies, so that a vesting declaration under section 40 of the Trustee Act 1925 is implied into the instrument in writing, including a written record of a resolution rather than a deed, appointing a new trustee (sections 13, 129 and 135 of the Trade Union and Labour Relations (Consolidation) Act 1992).

The new trustee trigger also does not apply on the appointment of a new trustee of a settlement under the Settled Land Act 1925.

1.4.3 The partition trigger

The partition trigger applies on the transfer of an unregistered freehold estate or an unregistered leasehold estate with more than seven years to run that gives effect to the partition of land held under a trust of land among the beneficiaries of the trust (section 4(1)(a)(iii) of the Land Registration Act 2002).

Partition occurs where land in a trust is divided and the separate parts are allotted among the beneficiaries, so terminating the trust as between some or all of the beneficiaries. Partition may take place at common law by agreement between all the beneficiaries, in which case the trustees, who in many cases will be the beneficiaries themselves, will give effect to the partition by transferring the legal estate in the separate parts to the persons entitled by deed. Partition may also occur when trustees exercise their statutory power to partition land under section 7 of the Trusts of Land and Appointment of Trustees Act 1996 with the consent of the beneficiaries. Again, the trustees must give effect to the partition by transferring the legal estate by deed.

The partition trigger applies to a partition on whatever terms. For example, the partition may include the payment of equality money where a beneficiary receives more than their beneficial entitlement under the former trust.

1.5 Retention of documents submitted with applications

Original documents are normally required only if your application is a first registration. A conveyancer may, however, make an application for first registration on the basis of certified copy deeds and documents only. For information about this see practice guide 1: first registrations – Applications lodged by conveyancers – acceptance of certified copy deeds.

If your application is not a first registration, we only need certified copies of deeds or documents you send to us with HM Land Registry applications. Once we have made a scanned copy of the documents you send to us, they will be destroyed. This applies to both originals and certified copies.

However, any original copies of death certificates or grants of probate will continue to be returned.

2. The standard form restrictions

2.1 Form A: the joint proprietorship restriction

2.1.1 Its purpose and wording

The wording of this restriction is as follows (Form A, Schedule 4 of the Land Registration Rules 2003).

“No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.”

The purpose of the restriction is to ensure that the provisions of section 27(2) of the Law of Property Act 1925 are complied with. As amended by the Trusts of Land and Appointment of Trustees Act 1996 (section 25(1) and Schedule 3, paragraph 4), this section reads as follows:

“Notwithstanding anything to the contrary in the instrument (if any) creating a trust of land or in any trust affecting the net proceeds of sale of the land if it is sold, the proceeds of sale or other capital money shall not be paid to or applied by the direction of fewer than two persons as trustees, except where the trustee is a trust corporation, but this subsection does not affect the right of a sole personal representative as such to give valid receipts for, or direct the application of, proceeds of sale or other capital money, nor, except where capital money arises on a transaction, render it necessary to have more than one trustee.”

This means that a Form A restriction should be entered whenever two or more persons are registered as joint proprietors of a registered estate, except where either:

• they are beneficial joint tenants (because when only one is left, the trust will have come to an end – see Beneficial joint tenants)
• they are personal representatives of a deceased sole proprietor, unless that proprietor was a trustee

A Form A restriction should also be entered whenever a sole proprietor is, or becomes, a trustee of land.

If a Form A restriction is registered, it will generally be necessary for a new trustee or trustees to be appointed before land held by a single trustee on a trust of land can be dealt with in such a way that capital money arises.

2.1.2 When HM Land Registry will enter a Form A restriction automatically

We will enter a Form A restriction in the register, without application, whenever we register two or more persons as proprietors of a registered estate in land, unless we are told that they hold the legal estate on trust for themselves as beneficial joint tenants, or we are registering them as personal representatives. We are obliged to do this by section 44(1) of the Land Registration Act 2002 and rule 95(2)(a) of the Land Registration Rules 2003. Section 44(1) of the Land Registration Act 2002 reads as follows.

“If the registrar enters two or more persons in the register as the proprietor of a registered estate in land, he must also enter in the register such restrictions as rules may provide for the purpose of securing that interests which are capable of being overreached on a disposition of the estate are overreached.”

Rule 95(2)(a) of the Land Registration Rules 2003 provides that the restriction will be Form A.

Section 27(2) of the Law of Property Act 1925 does not affect the right of a sole personal representative as such to give a valid receipt for capital money. Therefore, a Form A restriction will not automatically be entered when registering personal representatives (or a sole personal representative) as proprietors of land. If there is an existing Form A restriction, however, it will remain in the register. This is because, in that case, the personal representatives are in effect succeeding the deceased as trustees of the trust. For the same reason, we will enter a Form A restriction on first registration when registering the personal representatives of a deceased proprietor who was a sole trustee or (unless the survivor of beneficial joint tenants) the last surviving trustee.

Similarly, section 27(2) of the Law of Property Act 1925 does not affect the right of the survivor of beneficial joint tenants to give a valid receipt for capital money. When applying to register joint proprietors of an estate, you should therefore make clear the capacity in which they hold it. See Declaration of trust. If you do not do so, we will enter a Form A restriction by default.

We will not enter a Form A restriction in respect of a registered charge. Although a charge can be held on trust, the survivor of the registered chargees is always able to give a valid receipt for the money secured by it (section 56 of the Land Registration Act 2002).

We will not enter a Form A restriction automatically when registering a sole proprietor.

2.1.3 When trustees must apply for a Form A restriction

A proprietor of a registered estate must apply for a restriction in Form A in the following circumstances (rule 94(1) of the Land Registration Rules 2003).

• when the estate becomes subject to a trust of land, other than on a registrable disposition, and the proprietor or the survivor of joint proprietors will not be able to give a valid receipt for capital money
  • examples would be if the proprietor executed a declaration of trust, or if a constructive trust arose
• when the estate is held on a trust of land and, as a result of a change in the trusts, the proprietor or the survivor of joint proprietors will not be able to give a valid receipt for capital money
  • an example would be where one of two beneficial joint tenants served a notice to sever the beneficial joint tenancy

An application by one of two or more trustees satisfies the requirement to apply (rule 94(9) of the Land Registration Rules 2003), although such an application should be made as an application by a person with sufficient interest in the making of the entry (rule 92 of the Land Registration Rules 2003) and be accompanied by evidence of that interest.

If a sole or last surviving trustee of land applies for first registration, or to register a disposition of a registered estate in their favour, they must at the same time apply for a Form A restriction (rule 94(2) of the Land Registration Rules 2003). This is because section 44(1) of the Land Registration Act 2002 only applies to joint proprietors. The registrar is not obliged to enter a Form A restriction automatically on registering a sole or last surviving trustee.

Section 44(1) of the Land Registration Act 2002 also only applies to registered estates in land. It does not apply when two or more persons are registered as proprietors of a rentcharge, manor, franchise or profit a prendre in gross. Nevertheless, if the survivor of them will not be able to give a valid receipt for capital money, a Form A restriction will be needed, and you should apply for it.

These are not ‘estates in land’. See section 2 of the Land Registration Act 2002 and compare sections 1(1) and 1(2)(a) of the Law of Property Act 1925. Although manors can no longer be the subject of first registration, existing registrations of them remain and can be dealt with.

2.1.4 When a beneficiary may apply for a Form A restriction

Where a registered estate is held on a trust of land, and a sole proprietor or survivor of joint proprietors (not being a trust corporation) will not be able to give a valid receipt for capital money, any person interested in the estate can apply for a Form A restriction (under section 43(1)(c) of the Land Registration Act 2002 and rule 93(a) of the Land Registration Rules 2003). Unless the consent of the registered proprietors accompanies the application, the registrar will have to serve notice of the application on them (the application will be a notifiable one under sections 45 of Land Registration Act 2002). The notice will give them 15 working days in which to object (rule 92(9) of the Land Registration Rules 2003).

2.1.5 Previous practice

Before the Land Registration Act 2002 and Land Registration Rules 2003 came into force on 13 October 2003, the equivalent of Form A was Form 62 in Schedule 2, Land Registration Rules 1925. The precise wording of this form varied over the years but its final version was as follows.

“No disposition by a sole proprietor of the land (not being a trust corporation) under which capital money arises is to be registered except under an order of the Registrar or of the Court.”

This restriction was entered in circumstances similar to those where a Form A restriction is now entered (under sections 58(3) of the Land Registration Act 1925 and rule 213(1) of the Land Registration Rules 1925). Accordingly, we will treat a restriction in Form 62 as if it were one in Form A.

Before 1 January 1997 (when the Trusts of Land and Appointment of Trustees Act 1996 came into force), section 27(2) of the Law of Property Act 1925 only applied to estates that were subject to a trust for sale. There may still be estates registered before 1997 that were held on trusts that did not include a trust for sale (for instance, a constructive or bare trust), and where neither a Form A nor a Form 62 restriction has been entered. Either the trustees or the beneficiaries of such trusts may apply to enter a Form A restriction, and would be well advised to do so.

2.2 The Form B restriction: where the powers of the trustees of the legal estate are limited

2.2.1 Its purpose and wording

The wording of this restriction is as follows (Form B, Schedule 4 of the Land Registration Rules 2003).

“No disposition [or specify details] by the proprietors of the registered estate is to be registered unless one or more of them makes a statutory declaration or statement of truth, or their conveyancer gives a certificate, that the disposition [or specify details] is in accordance with [specify the disposition creating the trust] or some variation thereof referred to in the declaration, statement or certificate.”

The general rule is that, to exercise their functions as trustees, trustees of land have all the powers of an absolute owner (section 6(1) of the Trusts of Land and Appointment of Trustees Act 1996). However, under section 8 of the Trusts of Land and Appointment of Trustees Act 1996, a disposition creating a trust of land can contain provisions limiting the trustees’ powers. Any such limitation needs to be reflected by a restriction in the register to protect the rights of the beneficiaries. In the absence of a restriction, a purchaser of a registered estate from the trustees will not need to check whether any necessary consent has been obtained, or that any limitation on the trustees’ powers of disposition has been complied with. The purchaser’s title cannot be questioned even if the trustees exceeded their powers in making the disposition (section 26 of the Land Registration Act 2002).

2.2.2 When trustees of the legal estate must apply for a Form B restriction

Trustees must apply for a Form B restriction in the following circumstances (rule 94(4) and (5) of the Land Registration Rules 2003).

• In respect of a registered estate, when a declaration of trust imposes limitations on the powers of the trustees under section 8 of the Trusts of Land and Appointment of Trustees Act 1996.
• Also, in respect of a registered estate, when a change in the trusts on which it is held imposes limitations on the powers of the trustees under section 8 of Trusts of Land and Appointment of Trustees Act 1996.
• On an application for first registration of a legal estate held on a trust of land, when the powers of the trustees are limited by section 8 of the Trusts of Land and Appointment of Trustees Act 1996.

This applies not only when the legal estate is held by trustees, but also when it is held by the personal representative of a sole or last surviving trustee (rule 94(7) of the Land Registration Rules 2003).

An application by one of two or more trustees satisfies the requirement to apply (rule 94(9) of the Land Registration Rules 2003), although such an application should be made as an application by a person with sufficient interest in the making of the entry (rules 92 and 93 of the Land Registration Rules 2003) and be accompanied by evidence of that interest.

Where a Form A restriction is required (see Form A: the joint proprietorship restriction), it will be needed as well as the Form B restriction.

2.2.3 When a beneficiary may apply for a Form B restriction

Where a registered estate is held on a trust of land, and the powers of the trustees are limited by section 8 of the Trusts of Land and Appointment of Trustees Act 1996, subject to Application for multiple Form B restrictions any person interested in the estate can apply for a Form B restriction (under section 43(1)(c) of the Land Registration Act 2002 and rule 93(c) of the Land Registration Rules 2003). Unless the consent of the registered proprietors accompanies the application, the registrar will have to serve notice of the application on them (the application will be a notifiable one under section 45 of the Land Registration Act 2002). The notice will give them 15 working days in which to object (rule 92(9) of the Land Registration Rules 2003).

2.2.4 Wording which should be used for a Form B restriction

In many cases, the limitation on the trustees’ powers will not apply to all dispositions, but only those of a certain kind. In such cases, the word ‘disposition’ may be replaced with ‘transfer’, ‘lease’ or ‘charge’. It should not however be replaced with a more complex provision, for example ‘lease for a term of more than 21 years’ (rule 91A(8) of the Land Registration Rules 2003). You should not specify the nature of the consents required, or any similarly complex provision in the restriction. The restriction contains the qualifying words “unless one or more of them makes a statutory declaration or statement of truth, or their conveyancer gives a certificate, that the disposition [or specify type of disposition] is in accordance with…”. The purpose of this is to allow the restriction to reflect the terms of the disposition creating the trust without requiring the registrar to consider those terms or whether they have been complied with. The normal way of complying with the restriction will be to supply a certificate by the proprietors’ conveyancer. A statutory declaration or statement of truth will only be needed if the conveyancer is unwilling to give a certificate for any reason or if no conveyancer is acting.

2.2.5 When it might not be appropriate to apply for a Form B restriction

A Form B restriction is appropriate if the disposition creating the trust of land contains provisions limiting the trustees’ powers under section 8 of the Trusts of Land and Appointment of Trustees Act 1996. It is not the purpose of a Form B restriction simply to give notice of the trust on which the registered estate is held. The registrar is not affected with notice of a trust (section 78 of the Land Registration Act 2002). A declaration of trust that merely acknowledges and/or quantifies the beneficial shares in the equity of a property will not, therefore, justify the entry of a Form B restriction.

It is HM Land Registry’s view that only one Form B restriction, referring to just one trust, can be entered in an individual register at any one time unless, where separate restrictions are applied for, the restrictions are limited to affect different parts of the registered title, each of which is subject to a different trust (although sharing the same trustee or trustees). This is because a legal estate can only be held on one trust at a time. For example, A or A and B can hold on trust for B, or on trust for A and B, or on trust for A, then B, then C; but in each case there is just one trust, even if there might be more than one trustee or beneficiary.

Note the position where, for example, C and D hold property on trust themselves (trust 1) but then each executes separate deeds of trust in respect of their equitable interests (trusts 2 and 3). Here it is only trust 1 that affects the legal estate in the property. Trusts 2 and 3 do not affect the legal estate; they affect only C and D’s separate equitable interests (that is, their separate beneficial shares). It follows that a (single) Form B restriction can be entered for trust 1 as it affects the legal estate, if the powers of C and D as trustees of that trust are limited. However, neither a Form B restriction nor a modified Form B restriction can be entered for trusts 2 or 3, as they do not affect the legal estate.

Unless the applicant for the restriction shows sufficient legal grounds for the restriction to be entered, we will not, therefore, normally, enter a Form B restriction:

• if it would result in there being more than one Form B restriction in the register

• if the restriction refers to more than one trust, or

• if it appears from the application that the trust referred to in the restriction is not the trust of the registered legal estate or does not contain provisions limiting the trustees’ powers under section 8 of the Trusts of Land and Appointment of Trustees Act 1996

This will be the case whether or not the registered proprietor(s) apply for, or consent to, the Form B restriction in question.

2.3 The Form C restriction: where the powers of a personal representative are limited

2.3.1 Its purpose and wording

The wording of this restriction, which applies to personal representatives, is as follows (Form C, Schedule 4 of the Land Registration Rules 2003).

“No disposition by the personal representative of [name] deceased, other than a transfer by way of assent, is to be registered unless such personal representative makes a statutory declaration or statement of truth, or their conveyancer gives a certificate, that the disposition is in accordance with the terms of [choose whichever bulleted clause is appropriate]

• the will of the deceased [as varied by [specify date of, and parties to, deed of variation or other appropriate details]]
• the law relating to intestacy as varied by [specify date of, and parties to, deed of variation or other appropriate details]

or some [further] variation thereof referred to in the declaration, statement or certificate, or is necessary for the purposes of administration.”

To exercise their functions as trustees, and without prejudice to their functions for the purposes of administration, Trusts of Land and Appointment of Trustees Act 1996 confers on personal representatives all the powers of an absolute owner (sections 6(1) and 18 of the Trusts of Land and Appointment of Trustees Act 1996). However, under sections 8 and 18 of the Trusts of Land and Appointment of Trustees Act 1996, the powers of the personal representatives can be limited by provisions contained in the will of the deceased or in a deed of variation or family arrangement. Any such limitation needs to be reflected by a restriction in the register to protect the rights of the beneficiaries. In the absence of a restriction, a purchaser of a registered estate from trustees is not concerned to see that the terms of the will or deed have been complied with (section 26 of the Land Registration Act 2002).

2.3.2 When personal representatives must apply for a Form C restriction

A personal representative of a deceased person who holds a registered estate on a trust of land arising under the deceased’s will, or on intestacy, and whose powers are limited under section 8 of the Trusts of Land and Appointment of Trustees Act 1996, must apply for a Form C restriction (rule 94(3) of the Land Registration Rules 2003). This is in addition to any Form A restriction that may be required.

An application by one of two or more personal representatives satisfies the requirement to apply (rule 94(10) of the Land Registration Rules 2003), although such an application should be made as an application by a person with sufficient interest in the making of the entry (rule 92 of the Land Registration Rules 2003) and be accompanied by evidence of that interest.

2.3.3 When a beneficiary may apply for a Form C restriction

If the personal representatives fail to apply for the restriction when they should, any person interested in the due administration of the estate may do so (rule 93(d) of the Land Registration Rules 2003).

2.3.4 Wording which should be used for a Form C restriction

You may apply for a restriction in Form C with such alterations to the bracketed words as are necessary to fit the circumstances. As with Form B, the restriction contains the qualifying words “unless such personal representative makes a statutory declaration or statement of truth, or their conveyancer gives a certificate, that the disposition is in accordance with…”. The purpose of this is to allow the restriction to reflect the terms of the will or deed concerned without requiring the registrar to consider those terms or whether they have been complied with.

The normal way of complying with the restriction will be to supply a certificate by the personal representative’s conveyancer. A statutory declaration or statement of truth will only be needed if the conveyancer is unwilling to give a certificate for any reason, or no conveyancer is acting.

2.4 Other restrictions

Other restrictions may be applied for voluntarily, either by the trustees or the beneficiaries (under section 43(1) of the Land Registration Act 2002). If the beneficiaries apply, we will serve notice on the registered proprietors, giving them the opportunity to object – see Persons eligible to apply for a restriction

Standard form restrictions that may sometimes be appropriate for trusts are:

• Form N (requiring the consent of a named person) see practice guide 19: notices, restrictions and the protection of third party interests – section 3.4.5 Interests under trusts and section 6.4 Beneficiaries under a trust of land for further guidance on this and when a restriction in Form II might be appropriate
• Form Q (requiring the consent of the personal representatives of a deceased proprietor – as to which see Partnership property)

(Both these forms are in Schedule 4 of the Land Registration Rules 2003).

For the circumstances in which the registrar will approve a restriction that is not in one of the standard forms, see Form of application for restrictions.

Rule 93(b) of the Land Registration Rules 2003 specifically permits a person who has a sufficient interest in preventing a contravention of section 6(6) or (8) of the Trusts of Land and Appointment of Trustees Act 1996, to apply for a restriction to prevent such a contravention.

Section 6(6) of the Trusts of Land and Appointment of Trustees Act 1996 forbids the exercise of the trustees’ powers in contravention of, or of any order made in pursuance of, any other enactment or any rule of law or equity.

Section 6(8) of the Trusts of Land and Appointment of Trustees Act 1996 forbids the exercise of the trustees’ powers in contravention of any restriction, limitation or condition imposed on their authority to act by any other enactment.

In unregistered conveyancing, a conveyance by trustees of a private trust that contravenes these provisions will nevertheless be valid in favour of a purchaser who has no actual notice of the contravention (section 16(2), (6) and (7) of the Trusts of Land and Appointment of Trustees Act 1996). In registered conveyancing, a purchaser is only concerned to see that any restriction in the register relating to them is complied with.

There are certain limitations on the powers of trustees of land imposed by Trusts of Land and Appointment of Trustees Act 1996 with which a purchaser of unregistered estates will not be concerned (sections 16(1) and (7) of the Trusts of Land and Appointment of Trustees Act 1996. The relevant provisions are sections 6(5), 7(3) and 11(1) of that Act.). Again, in registered conveyancing, a purchaser is only concerned to see that any restriction in the register relating to them is complied with.

3. How to apply for restrictions

3.1 Form of application for restrictions

As this guide explains, you will often need to apply for a restriction when a trust is involved. An application for a restriction must normally be made in form RX1. However, you do not need to use form RX1 if the application is either:

• for a standard form restriction and is contained in the ‘additional provisions’ panel of a transfer or assent (form TP1, form TP2, form TR1, form TR2, form TR4, form TR5, form AS1, form AS2 or form AS3. These forms are in Schedule 1 of the Land Registration Rules 2003)
• a standard form restriction and is applied for in clause LR13 of a prescribed clauses lease or any other lease containing clauses LR1 to LR14 of Schedule 1A of the Land Registration Rules 2003
• to give effect to an order of the court made under section 46 of the Land Registration Act 2002 (rule 92 of the Land Registration Rules 2003. In this case you should apply in form AP1)

There are also exemptions for restrictions contained in certain charges.

Note: You must include words of application such as “the transferor applies to register the following restriction…”. It is not sufficient to enter just the wording of the restriction without saying who is applying for it. See practice guide 19, section 3.5.1 for more information.

A standard form restriction is one of the forms set out in Schedule 4 of the Land Registration Rules 2003.

An application for a non-standard restriction must always be made in form RX1 (unless it is ordered by the court under section 46 of the Land Registration Act 2002). The registrar can only approve an application for a non-standard restriction if it appears that:

• the terms of the restriction are reasonable
• applying it would be straightforward and would not impose an unreasonable burden on the registrar (section 43(3) of the Land Registration Act 2002)

From 9 January 2006 a lease containing clauses LR1 to LR14 of Schedule 1A of the Land Registration Rules 2003 may be used, at clause LR13, to apply for entry of a standard form restriction. This will include prescribed clauses leases granted on or after 19 June 2006. Form RX1 must continue to be used to apply for entry of a restriction contained in any other lease or for entry of a non-standard form restriction.

3.2 Persons eligible to apply for a restriction

You can apply for a restriction if you:

• are the registered proprietor
• are a person entitled to be registered as proprietor
• apply with the consent of the registered proprietor or a person entitled to be registered as proprietor, or
• have sufficient interest in the making of the entry of the restriction (section 43(1) of the Land Registration Act 2002)

If you apply with consent, then you must either:

• arrange for the person(s) consenting to complete panel 11 of form RX1
• lodge the consent with the application, or
• (if you are a conveyancer) certify that you hold the consent (rule 92(2)(c) and (6) of the Land Registration Rules 2003)

If you apply as, or with the consent of, a person entitled to be registered as proprietor, rather than someone who is already registered, then you must either:

• lodge evidence of that person’s entitlement
• (if you are a conveyancer) certify that you are satisfied that that person is entitled to be registered as proprietor, and that you hold the original documents that prove it, or
• (if you are a conveyancer) certify that you are satisfied that that person is entitled to be registered as proprietor, and that an application to do so is pending at HM Land Registry (rule 92(2)(d) and (5) of the Land Registration Rules 2003)

See Retention of documents submitted with applications regarding retention of documents submitted with applications.

In practice, of course, many such applications will accompany an application to register the person concerned as proprietor, and these requirements will automatically be fulfilled.

If you apply on the basis that you have a sufficient interest in the making of the entry, then you must satisfy the registrar that this is the case. You must give details of your interest. We may require you to lodge additional evidence of your entitlement (rules 92(2)(e), 92(3) and 92(4) of the Land Registration Rules 2003).

If you apply on the basis that you have a sufficient interest in the making of the entry, and you do not have the consent of the registered proprietors (or the person entitled to be registered as proprietor), then the restriction will be a notifiable one, and we will not be able to complete the application until we have served notice on the registered proprietors (section 45 of the Land Registration Act 2002). The notice will give the proprietors 15 working days to object (rule 92(9) of the Land Registration Rules 2003).

3.3 Summary

In practice, most applications to which this guide relates will fall within one of three categories.

• applications by trustees for a standard form restriction accompanying a transfer to the trustees
  • the application can be made either in the additional provisions panel of the transfer, in form JO, or in form RX1
  • no additional evidence will be needed
• applications in form RX1 by trustees who are, or are applying to become, the registered proprietors
  • no additional consents or evidence of entitlement will be needed
• applications by beneficiaries for standard form restrictions in one of the cases specified in rule 93 of the Land Registration Rules 2003
  • normally, no additional evidence will be required, but the restriction will be a notifiable one, and notice of the application will be served on the registered proprietors, unless they have consented to it

Practice guide 19: notices, restrictions and the protection of third party interests contains further information on applying for restrictions.

4. Applications to register trustees

4.1 Maximum number of trustees

A private trust of land cannot have more than four trustees. If an attempt is made to vest the legal estate in more than four persons, it will vest in the first four named who are willing and able to act (section 34 of the Trustee Act 1925). Therefore, a transfer or other disposition in favour of trustees of a private trust should be to no more than four persons. If it is to more than four you must confirm, when applying to register it, that the first four named are able and willing to act.

4.2 Execution of the disposition by the trustees

We will not normally return a deed for execution by the disponees. It is for you to ensure that the trustees have executed the document if necessary.

4.3 Name and address of the trustees

You must complete the application form FR1 or form AP1, as appropriate, with the full name of each of the trustees, and an address or addresses for service for each of them. Each trustee must give an address for service that is a postal address, either in the United Kingdom or abroad. They may each give up to two additional addresses, which may be a postal address, a box number at a document exchange in the United Kingdom or an email address (rule 198 of the Land Registration Rules 2003). However, where there are several trustees you may, if you prefer, have a single ‘care of’ address for service such as that of the trust’s conveyancers.

Sometimes, an application to register trustees as proprietors of the registered estate includes a general description of the trustees by reference to the express trust on which the legal estate is held, such as ‘trustees of the Alpha Limited Pension Fund’.

If so, we may refer to that description in the proprietorship register, for information only, to assist customers in identifying the capacity in which the proprietors hold the registered estate. HM Land Registry is not obliged to enter any such description, and it should not be regarded as giving notice of any trust on which an estate is held, since that would be contrary to the principles on which the register is kept (section 78 of the Land Registration Act 2002).

We will not enter any such description if it appears that the trust referred to is not the single express trust of the registered legal estate, or if we consider that doing so may otherwise be inappropriate. This means, for example, that we will not enter a description which refers to more than one trust or to a trust which appears merely to be a sub-trust or trust of a beneficial interest.

In certain cases, HM Land Registry practice used to be to register trustees under a collective title of this kind, rather than in their individual names. This practice was abandoned several years ago, and the names of the individual trustees will now always be entered in the register.

4.4 Declaration of trust

All the prescribed transfer and assent forms, and prescribed clauses leases, include a ‘declaration of trust’ panel for use where the disposition is in favour of joint proprietors. For example:

“Declaration of trust. The transferee is more than one person and

they are to hold the property on trust for themselves as joint tenants

they are to hold the property on trust for themselves as tenants in common in equal shares

they are to hold the property on trust:”

For first registrations, there is a similar panel on form FR1. The conveyance or transfer to the applicants should also contain an appropriate declaration.

For adverse possession of registered land, there is a similar panel in form ADV1.

For a new lease of registered land, the form of application (AP1) contains no panel to specify the trusts. It is therefore essential that a lease in favour of joint proprietors contains an appropriate clause declaring them or, if the lease contains the clauses set out in Schedule 1A, Land Registration Rules 2003, clause LR14 is completed.

Failure to complete the relevant panel in a transfer, assent, form FR1 or form ADV1 or clause LR14 will mean that the registrar will enter a Form A restriction by default, unless the application is accompanied by a completed form JO.

Form JO has been introduced as a voluntary form created by the registrar under the power in section 100(4) of the Land Registration Act 2002. It is designed as an alternative means for joint owners to declare trusts at the time of acquisition and to address the practical difficulties that conveyancers might face in securing execution of the transfer by each transferee within the condensed timescale of a normal conveyancing transaction.

Form JO, if completed, must accompany an application for registration of the disposition (in form TP1, TP2, TR1, TR2, TR5, AS1, or AS3) to which it relates. We will also accept a form JO as an alternative to completing panel 9 in forms FR1 or form ADV1 or clause LR14 in a prescribed clauses lease.

If panel 5 of the form JO is completed it must also be signed by each of the joint owners, or if panel 6 is completed it must also be signed by a conveyancer.

The purpose of making a declaration as to the nature of the trust is not to give the registrar notice of the trusts under which the land is held, but simply to enable us to decide whether we need to enter a Form A restriction (see Form A: the joint proprietorship restriction).

It also serves as a memorandum of the trusts on which the property is held. An official copy can be obtained of any original or copy lease or transfer, and any of the other documents relating to the application to register the disposition, held by the registrar (subject to rules 131 to 140 of the Land Registration Rules 2003. See practice guide 11: inspection and applications for official copies and practice guide 57: exempting documents from the general right to inspect and copy.

Where you use the third box, you must complete it to indicate the capacity in which the trustees hold the land. For example:

On trust for themselves as tenants in common in the following shares (specify shares)

The shares should be specified. If the phrase ‘as tenants in common’ is used without further information, it will not be clear whether income and capital receipts are to be shared equally, on the basis of the maxim ‘equality is equity’, or in such shares as the trustees may appoint. If you intend the latter, a separate declaration of trust should be executed containing appropriate directions as to the basis on which a division is to be made.

On trust for the members of (unincorporated association) to be dealt with according to its rules

This wording creates a bare trust for the members of an unincorporated association, but subject to any contract between the members created by its rules. Unless the association’s objects are exclusively charitable, a trust for the purposes of the association will be invalid and should be avoided.

On the trusts of a trust deed (or as the case may be) dated

This wording is suitable when the trusts are set out in a trust deed, partnership deed, will or other document. You should do this if the terms of the trust are complex or if you wish them to remain confidential. Any person may apply to inspect, or ask for an official copy of, a document held by the registrar and received by the registrar after 13 October 2003, unless it has been designated an exempt document. Generally, if a document has been made an exempt document, only an edited version of the document omitting the sensitive information will be open to inspection or copying. It may still be possible for someone to inspect or request a full copy of an exempt document under the provisions of the Freedom of Information Act 2000. If no other aspect of the transfer is confidential, it will be simpler to set out the terms of the trust in a separate deed than to apply for exemption. The deed (or other document creating the trust) does not need to be lodged with the application.

See Retention of documents submitted with applications regarding retention of documents submitted with applications.

4.5 Applications for restriction

In certain cases you will need to apply for a restriction, either in the transfer, lease or assent to the trustees or in form RX1. See The standard form restrictions and How to apply for restrictions.

5. Dispositions by trustees and personal representatives

5.1 Compliance with restrictions in the register

Any restriction in the register must be complied with before a disposition can be registered.

5.1.1 Form A restriction

If a sole or sole surviving proprietor is registered with a Form A restriction, and capital money arises under the disposition, you will need to appoint one or more new trustees to join in the disposition. See Appointment and discharge of trustees.

If joint proprietors held the estate under a trust of land and the number of proprietors is reduced to one upon the death of the other joint proprietor(s), it is incorrect to have the personal representative(s) join in with the surviving proprietor to dispose of the property and the interest protected by the Form A restriction will not have been overreached. Only the beneficial interest of the deceased joint proprietor passes under their will or intestacy and the personal representative(s) of the deceased has no power to deal with the legal estate or to act with the survivor as a transferor unless formally appointed as trustee of the legal estate.

If, however, that proprietor has become the sole beneficial owner, you could instead apply to cancel the restriction. See Applications to cancel restrictions.

If the disposition is one under which no capital money arises, for example a rack rent lease, then the Form A restriction will not prevent registration.

5.1.2 Form B and Form C restrictions

A restriction in Form B or Form C will be satisfied by providing the appropriate certificate or statutory declaration.

5.1.3 Where there is difficulty complying with a restriction

If the disposition creating the trust calls for the consent of a minor, the trustees should instead obtain the consent of a parent who has parental responsibility for the minor (within the meaning of the Children Act 1989) or a guardian (section 10(3)(b) of the Trusts of Land and Appointment of Trustees Act 1996).

If the disposition creating the trust requires the consent of more than two persons to a disposition and it is not possible to obtain the consent of all of them, but two of the necessary consents can be provided, this is sufficient in favour of a purchaser (section 10(1) of the Trusts of Land and Appointment of Trustees Act 1996).

In some cases of difficulty, it may be appropriate to apply to the registrar for an order under section 41(2) of the Land Registration Act 2002, disapplying or modifying the restriction in respect of a particular disposition or kind of disposition. You must apply on form RX2. You will need to:

• state whether you are applying to disapply or modify the restriction, and, if the latter, give details of the modification requested
• explain why the applicant has sufficient interest in the restriction to make the application
• give details of the disposition or kind of disposition that will be affected
• state why the registrar should make the order (rule 96 of the Land Registration Rules 2003)

We will serve notice of the application on any other persons who appear to have an interest in the restriction. If the registrar makes an order, we will enter a note of its terms in the register.

5.2 Powers of attorney granted by trustees

There are several statutory provisions enabling trustees to delegate their functions, individually or collectively. For details of these and associated HM Land Registry requirements, see practice guide 9: powers of attorney and registered land.

One point is worth emphasising here. Under section 9 of the Trusts of Land and Appointment of Trustees Act 1996, the trustees, acting jointly, can delegate their functions to a beneficiary or beneficiaries by means of a power of attorney. But the attorneys cannot give a valid receipt for capital money, even if they are two or more (section 9(7) of the Trusts of Land and Appointment of Trustees Act 1996). If capital money arises on a disposition, the trustees (or their individual attorneys appointed under section 25 of the Trustee Act 1925) will have to execute it to give the receipt. Usually, therefore, there will be little point in the attorney executing it as well. An attorney under section 9 of the Trusts of Land and Appointment of Trustees Act 1996 can however execute a disposition under which no capital money arises, such as a rack rent lease.

6. Cancellation and withdrawal of restrictions

6.1 Automatic cancellation of restrictions

In certain circumstances, we will automatically cancel a trust restriction when registering a transfer (under rule 99 of the Land Registration Rules 2003). In all other cases, the restriction will remain unless a specific application is made to cancel it (see Applications to cancel restrictions). Voluntary restrictions, such as those requiring the consent of a named person, will never be cancelled automatically.

A Form A restriction will be cancelled automatically on registration of either:

• a transfer on sale by two or more proprietors or a trust corporation (except where the transfer is to one, or more, of the existing proprietors)
• a transfer by a registered chargee under its power of sale

A Form B restriction will be cancelled automatically on registration of either:

• a transfer on sale by the proprietor(s), when a certificate or statutory declaration has been provided in accordance with the terms of the restriction
• a transfer by a registered chargee under its power of sale

A Form C restriction will be cancelled automatically on registration of either:

• an assent by a personal representative in form AS1 or form AS3
• a transfer on sale by a personal representative, when a certificate or statutory declaration has been provided in accordance with the terms of the restriction
• a transfer by a registered chargee under its power of sale

6.2 Applications to cancel restrictions

When a restriction is no longer required, you can apply to cancel it under rule 97 of the Land Registration Rules 2003. The application must be made in form RX3, and must be accompanied by evidence to satisfy the registrar that the restriction is no longer required. If the registrar is so satisfied, the restriction must be cancelled.

The circumstances when such an application might be made include the following:

• When a Form A restriction is registered, but a sole or sole surviving proprietor has become the sole beneficial owner. Evidence, by way of statutory declaration or statement of truth using form ST5 (see practice guide 73: statements of truth), of the equitable title should accompany the application. This should explain the nature of the interest protected by the restriction, how that interest has ended or devolved to the registered proprietor, and that nobody else has a beneficial interest in the land and that no beneficial interest in the property has been separately mortgaged or charged, and that no beneficial owner is or was subject to a charging order or bankruptcy proceedings (a registered mortgage does not count). Instead of a statutory declaration or statement of truth, we will accept a certificate to this effect from the conveyancer acting for the surviving proprietor if they are able to speak from personal knowledge of the facts.

• When a Form A restriction is registered but, as a result of a change in the trusts, the registered proprietors have become entitled as beneficial joint tenants. Again, evidence of the equitable title will be required.

• When a Form B or C restriction is registered but, as a result of a change in the trusts, the powers of the trustees are no longer limited under section 8 of the Trusts of Land and Appointment of Trustees Act 1996. Evidence of the variation of the trusts – usually a deed or a court order – will be required.

• When a Form B restriction is registered but the registered estate is no longer affected by the trust that gave rise to the restriction. Evidence of that will be required, such as a statutory declaration or statement of truth, or a certificate by a conveyancer.

• Certain restrictions registered before 1997 may have been rendered wholly or partially obsolete by section 6(1) of the Trusts of Land and Appointment of Trustees Act 1996, which gives trustees of land, for the purpose of exercising their functions, all the powers of an absolute owner.

To cancel the restriction, you will need to satisfy the registrar that there is no limitation on the powers of the trustees by virtue of section 8 of the Trusts of Land and Appointment of Trustees Act 1996, and that any disposition will not contravene the provisions of section 6(6) or 6(8) of that Act. In some cases, it may be possible to cancel the restriction if the trustees apply to replace it with a Form B restriction. In other cases, it may be more appropriate to apply to modify it under section 41(2) of the Land Registration Act 2002.

Application may also be made to alter the register when a court order has been made requiring or directing the registrar to cancel a restriction. The application to give effect to the order should be made in form AP1. Note, however, that if a court order does not require the registrar to cancel the restriction, we will not automatically cancel the restriction on registration of a disposition made pursuant to that order - for example, where on the breakdown of a marriage one party is ordered to transfer the registered estate to the other party.

6.3 Applications to withdraw restrictions

A restriction can be withdrawn, under rule 98 of the Land Registration Rules 2003, with the consent of all persons who have an interest in it unless the restriction is one that comes within rule 98(3) of the Land Registration Rules 2003.

Restrictions in Form A, B or C will often come within rule 98(3)(b) or (c) and so will usually not be capable of being withdrawn. Application may however be made to cancel these restrictions on the grounds that they are no longer required. See Applications to cancel restrictions.

A voluntary restriction associated with a trust, for example one requiring the consent of a named beneficiary, may be withdrawn. In that case, the consent of the beneficiary concerned would be required.

For further information on cancellation and withdrawal of restrictions, see practice guide 19: notices, restrictions and the protection of third party interests.

7. Change of trustees

7.1 Keeping names and addresses up to date

It is important for trustees to keep their names and their addresses for service in the register up to date. If they do not, they may not receive notices served by HM Land Registry or others. This may have serious consequences. For example, it may allow a squatter to acquire title under Schedule 6 to the Land Registration Act 2002.

7.2 Appointment and discharge of trustees

See Retention of documents submitted with applications regarding retention of documents submitted with applications.

7.2.1 Using a transfer

This is the simplest way to register new trustees, but requires the cooperation of all the outgoing ones. A form TR1 or form TR5 can be used instead of a traditional deed of appointment of a new trustee or a conveyance or assignment that is made in consequence of the appointment of a new trustee of unregistered land that will lead to compulsory first registration under the new trustee trigger (section 4(1)(aa)(i) of the Land Registration Act 2002). See The new trustee trigger for further details and practice guide 21: transfer forms for complex transactions.

The existing trustees or registered proprietors should execute a transfer, using form TR1 or form TR5, to the continuing and new trustees. A transfer used purely to effect the appointment of new or additional trustees does not require a land transaction return certificate or self-certificate. None of the statements in the consideration panel should be completed. The additional provisions panel of the transfer should state: ‘This transfer is made for the purpose of giving effect to the appointment of new trustees.’

You can use a transfer either in place of, or in addition to, a separate deed of appointment or discharge. If you have used a separate deed, your statement in the additional provisions panel of the transfer can be in words such as: ‘This transfer is made pursuant to a deed of appointment of new trustees dated today.’ We will not normally need to see the deed of appointment.

The transfer must be by all the outgoing proprietors to all the continuing and new proprietors. Suppose, for example, that A, B and C are the existing trustees, and that C is retiring and being replaced by D, who will be trustee jointly with A and B. A, B and C must be shown as the transferors and A, B and D as the transferees. A, B and C must all execute it.

Form A restrictions can be ignored, as capital money does not arise, but other restrictions against the registration of dispositions or transfers may need to be complied with.

For the fee payable, see HM Land Registry: Registration Services fees - Transactions under scale 2.

7.2.2 Using a deed of appointment

Under section 40 of the Trustee Act 1925, a deed of appointment or retirement, which meets certain conditions, automatically vests the trust property in the new and continuing trustees. If the land is unregistered, the deed of appointment is, if dated on or after 6 April 2009, a trigger for compulsory first registration (section 4(1)(aa)(i) of the Land Registration Act 2002).

If the trust property is a registered estate or a registered charge, this transfer by operation of law has to be completed by registration (section 27(5) of the Land Registration Act 2002).

If the property is not registered you must apply in form FR1:

• enclosing the original deed
• showing a good root of title
• enclosing evidence to satisfy the registrar that the persons making the appointment or effecting the retirement are entitled to do so

Conveyancers have the option of lodging first registration applications made up entirely of certified copy deeds and documents. For information about this see practice guide 1: first registrations – Applications lodged by conveyancers – acceptance of certified copy deeds.

If the property is registered you must apply in form AP1, enclosing:

• a certified copy of the original deed
• evidence to satisfy the registrar that the people making the appointment or effecting the retirement are entitled to do so. A certificate to that effect by a conveyancer acting for them will be accepted as evidence (rule 161(3) and 203 of the Land Registration Rules 2003)

If it is not clear from the deed of appointment title that the property forms part of the land held under the trust, you must provide evidence to show that this is the case. This may be in the form of a certificate from a conveyancer or a statement of truth/statutory declaration from the applicant.

Cases where this would be the best way to proceed include the following. In each case, a certificate by the conveyancer acting for the persons making the appointment, or effecting the retirement, can be lodged instead of the evidence referred to either:

• where the power of appointing new trustees is vested in someone other than the existing trustees (for example, in the settlor). You will need to lodge a certified copy of the trust instrument containing this power
• where a trustee has been dismissed or replaced under a power contained in the trust instrument. You will need to lodge a certified copy of the trust instrument containing this power
• where a trustee has been replaced under section 36(1) of the Trustee Act 1925, on the grounds that they have remained out of the United Kingdom for more than 12 months, refuses to or is unfit to act in the trust, or is incapable of doing so (a corporation that has been dissolved is incapable of acting in the trust: section 36(3) of the Trustee Act 1925), or is an infant. You will need to lodge a statutory declaration or statement of truth proving the relevant facts (the circumstances in which the appointment is being made) and, in the case of mental incapacity, stating whether or not the trustee who lacks capacity has a beneficial interest in possession in the property. (If the appointment is made under section 36(1)(b) of the Trustee Act 1925, an order of the Court of Protection may be required – see further, Bankruptcy and Mental capacity

An appointment or discharge containing an express or implied vesting declaration must normally be by deed, but occasionally an instrument in writing will suffice (see, for example, section 13(2) of the Trade Union and Labour Relations (Consolidation) Act 1992). It does not usually have to be executed by trustees who are removed against their will (see Re Stoneham Settlement Trusts, [1953] Chapter 59). However, we will generally serve notice on any existing registered proprietor who is not a party to the document, before we complete the application (under rule 17 of the Land Registration Rules 2003).

Where land is held under a lease that contains a provision against alienation without consent, a deed of appointment or retirement will not operate to vest the land in the trustees unless the necessary consent has been obtained (section 40(4)(b) of the Trustee Act 1925). A certified copy of the consent should accompany the application.

Form A restrictions can be ignored as capital money does not arise, but other restrictions in the register against the registration of dispositions may need to be complied with.

For the fee payable, see HM Land Registry: Registration Services fees - Transactions under scale 2.

7.2.3 Vesting orders by the court

Section 41 of the Trustee Act 1925, enables the court to appoint new trustees. In the case of registered land, such an order must be registered (section 27(5) of the Land Registration Act 2002). You should apply in form AP1, enclosing an office copy of the court order (rule 161(2) of the Land Registration Rules 2003).

In the case of unregistered land, a vesting order under section 44 of the Trustee Act 1925 made on or after 6 April 2009 that is consequential on the appointment of a new trustee (whether or not that appointment was made by an order under section 41 of the Trustee Act 1925) will trigger compulsory first registration and an application for first registration must be made (rule 203 of the Land Registration Rules 2003). For further information see practice guide 1: first registrations.

7.2.4 Appointment or discharge of trustees by resolution of the trustees

In certain cases where trustees may be appointed or discharged by resolution of a meeting of the trustees or other persons, a vesting declaration is implied by statute in the memorandum or written record of the resolution (see, for example, sections 13 and 129 of the Trade Union and Labour Relations (Consolidation) Act 1992).

If the trust property is a registered estate or a registered charge, this declaration has to be completed by registration (sections 27(5) of the Land Registration Act 2002). In many cases it will be simplest to arrange for the existing registered proprietors to execute a transfer to the new or continuing trustees. Alternatively, you can apply to register the implied vesting declaration directly. You must apply in form AP1, enclosing a certified copy of the memorandum or resolution and evidence of the provision under which it operates to vest the land in the trustees (rule 161(1) of the Land Registration Rules 2003).

If the land is unregistered, a memorandum executed as a deed on or after 6 April 2009 evidencing the appointment of a new trustee by a resolution to which section 334 of the Charities Act 2011 applies will trigger compulsory first registration and an application for first registration must be made (section 334 of the Charities Act 2011 applies not only to charities, but also to any institution to which the Literary and Scientific Institutions Act 1854 applies, whether or not the institution is a charity. See section 334(6) of the Charities Act 2011.). For further information see The new trustee trigger and practice guide 1: first registrations.

7.2.5 Death of a trustee

When a trustee has died, an application to remove their name from the register, or to register a transfer to, or a vesting in, new trustees, should be accompanied by evidence of their death (rule 164 of the Land Registration Rules 2003).

8. Some particular situations

See Retention of documents submitted with application forms regarding retention of documents submitted with applications.

8.1 Applications by beneficiaries to protect their interest

See the following sections:

8.2 Bankruptcy

If one of two beneficial joint tenants becomes bankrupt, the bankruptcy order severs the joint tenancy. The registered proprietors should apply for a Form A restriction, and the trustee in bankruptcy can also do so (as a person interested in the trust). The registrar will not enter one automatically. The trustee in bankruptcy may also apply for a Form J restriction. This will ensure that the trustee in bankruptcy receives notice of any disposition by the trustees.

Although in general the property of a bankrupt vests in their trustee in bankruptcy, this does not apply to property which the bankrupt holds in trust for another (section 283(3) of the Insolvency Act 1986). Consequently, when a joint proprietor is declared bankrupt, their beneficial interest (if any) will vest in the trustee in bankruptcy, but their legal estate will not. Any disposition of the legal estate must be executed by the bankrupt and the other trustees, and, if capital money arises, the receipt for it must be given by them, not by the trustee in bankruptcy. (If it is not paid to the trustees the beneficial interests will not be overreached – sections 2 and 27 of the Law of Property Act 1925). Bankruptcy may, however, be a reason for replacing the bankrupt as a trustee (under section 36(1), Trustee Act 1925. See Re Barker’s Trusts (1875) 1 Ch D 43, Re Adam’s Trust (1879) 12 Ch D 634).

8.3 Bare trusts

A bare trustee or custodian trustee is obliged to act only on the instructions of the beneficiary. It appears that this limitation is one of the rules of equity in contravention of which the powers conferred by section 6 of the Trusts of Land and Appointment of Trustees Act 1996, must not be exercised (section 6(6) of the Trusts of Land and Appointment of Trustees Act 1996). The rights of the beneficiary should be protected by applying for a Form A restriction – if the application for registration is made by the trustee, rule 94(2) of the Land Registration Rules 2003 obliges them to apply for this. You may also wish to apply for a restriction in Form N. (In Schedule 4 of the Land Registration Rules 2003), preventing the registration of dispositions without the beneficiary’s consent.

8.4 Constructive trusts

An implied, constructive or resulting trust is a trust of land. If one arises, the registered proprietor must apply for a Form A restriction (rule 94(1)(b) of the Land Registration Rules 2003). In practice, the proprietor may not be aware that a trust has arisen, or, if they are, they may dispute the fact. The beneficiary can also apply for a Form A restriction (under rule 93(a) of the Land Registration Rules 2003). Unless applying with the proprietor’s consent, the beneficiary will need to satisfy the registrar that there is a trust. In practice, this will involve completing panel 12 or 13 of form RX1 with sufficient information to do so. This will involve more than a bare assertion that a trust has arisen. You will need to explain the circumstances that have caused it to arise.

Unless the registered proprietor consents, the restriction will be a notifiable one, and we will send the registered proprietor a notice, giving them the opportunity to object (section 45 of the Land Registration Act 2002). See Persons eligible to apply for a restriction. Any resulting dispute will have to be dealt with under section 73 of the Land Registration Act 2002.

8.5 Mental capacity

A trustee who lacks mental capacity may be replaced under the provisions of the Trustee Act 1925 and Trusts of Land and Appointment of Trustees Act 1996 (section 36(1) of the Trustee Act 1925 and sections 20 and 21 of the Trusts of Land and Appointment of Trustees Act 1996). But if they have a beneficial interest in possession in the trust property, they cannot be replaced under section 36(1)(b) of the Trustee Act 1925 without the leave of the Court of Protection (see section 36(9) of the Trustee Act 1925). See also Appointment and discharge of trustees.

It may not be necessary to replace a trustee who lacks mental capacity if they have executed an enduring power of attorney or a lasting power of attorney registered under the Mental Capacity Act 2005, provided that they have a beneficial interest in the trust property. In such a case, the attorney can discharge their functions as trustee (provided the power is dated on or after 1 March 2000. See section 1 of the Trustee Delegation Act 1999. In limited circumstances, powers dated earlier can qualify - see section 4 of the Trustee Delegation Act 1999. But it would seem that the attorney could not join in a delegation of functions to a beneficiary in possession under section 9 of the Trusts of Land and Appointment of Trustees Act 1996. For further guidance, see practice guide 9: powers of attorney and registered land.). No other type of power of attorney will be effective for this purpose. Other powers, even if they apply to functions which the donor has as trustee, are revoked if the donor loses mental capacity.

Where a property is owned solely by a person who lacks mental capacity, the deputy appointed by the court under the Mental Capacity Act 2005 (the 2005 Act) may apply for a restriction preventing the disposition of the land or registered charge except under an order of the court. The restriction applied for should be in standard form RR (see Mental capacity of minors) and the application should be accompanied by evidence of the deputy’s power to apply for entry of the restriction. Where an order under the 2005 Act gives the deputy a general power this will also entitle them to apply for this restriction.

If the person who lacks capacity (P) is a joint proprietor/trustee, they should be discharged or a new trustee appointed. But if they are entitled to a beneficial interest in possession then neither a deputy nor any co-proprietor/trustee can replace P as trustee and the Court of Protection must give leave to make the appointment pursuant to s.36(9) of the Trustee Act 1925. If a new trustee is appointed to replace P, the trustee may apply for a restriction in standard form SS (see Mental capacity of minors) preventing a disposition during the lifetime of P without the consent of the Court of Protection.

8.6 Mental capacity of minors

A minor may not take a transfer of a legal estate in land (section 1(6) of the Law of Property Act 1925). Any such transfer would operate as a declaration of trust for the minor (section 1(1), Schedule 1 of the Trusts of Land and Appointment of Trustees Act 1996). If the minor is under 16, a deputy appointed under the Mental Capacity Act 2005 (D) will need to apply to the court for an order to authorise D to acquire the property for the minor. If the minor is aged between 16 and 18, D can purchase a property using the general powers in section 16 of the Mental Capacity Act 2005 (in the absence of any limitation in the deputyship order). In either case, D can acquire the legal estate but will hold it on trust for the minor and should apply for a Form A restriction to be entered in the register.

Once the minor reaches 18, the property may be transferred into their name but subject to the entry of a restriction in standard Form RR:

“RESTRICTION: No disposition during the lifetime of [name of person who lacks capacity] of the registered estate [or of the registered charge dated……] is to be completed by registration unless made pursuant to an order of the court under the Mental Capacity Act 2005.”

Alternatively the property may be transferred to one or more adult trustees of full capacity, on trust for the minor who has reached 18. The transfer should be lodged for registration together with a declaration of trust (which may be in the conveyance or transfer, or by a separate deed, or in form JO) and an application for a Form A restriction. An application should also be made for a restriction in standard Form SS:

“RESTRICTION: No disposition of the [registered estate] [registered charge dated [date]] made during the lifetime of [name of person who lacks capacity] is to be completed by registration without the consent of the Court of Protection”.

8.7 Non-charitable unincorporated associations

A variety of unincorporated bodies may fall in this category, such as clubs, societies (including unincorporated friendly societies) and trade unions. Their property is generally vested in trustees, or a trust corporation, in trust for the members of the association. As the trustee or the survivor of the trustees, unless a trust corporation, will be unable to give a valid receipt for capital money, a Form A restriction will be required, and if necessary should be applied for. See Form A: the joint proprietorship restriction.

Sometimes the rules of the association state how the property is to be dealt with. In this case the statement in the declaration of trust panel on the transfer form or form FR1 should refer to the rules. Suitable wording is given in Declaration of trust. You may also wish to apply for a restriction in Form R (in Schedule 4 of the Land Registration Rules 2003). The wording of this restriction is:

“No disposition [or specify details] of the registered estate [(other than a charge)] by the proprietor of the registered estate [or by the proprietor of any registered charge] is to be registered unless authorised by the rules of the [name of club] of [address] as evidenced [by a resolution of its members or by a certificate signed by its secretary or conveyancer [or specify appropriate details].”

When applying for a Form R restriction, you need to specify how the registrar will know that the rules of the association have been complied with. A certificate to that effect signed by the club secretary or its conveyancer, or a resolution of the club members, will usually be the simplest method.

You need to consider whether there is any limitation on the powers of the trustees by virtue of section 8 of the Trusts of Land and Appointment of Trustees Act 1996. For the purposes of that section, the rules of the association are likely to be regarded as the disposition creating the trust. If they contain such a limitation, you must apply for a restriction in Form B, as explained in The Form B restriction: where the powers of the trustees of the legal estate are limited.

You do not need to send us a copy of the rules of the association.

8.8 Partnership property

In some cases, where a registered estate is partnership property, you may wish to apply for a restriction preventing the registration of a disposition after the death of any of the proprietors without the consent of the personal representatives of the deceased. The appropriate restriction is Form Q (in Schedule 4 of the Land Registration Rules 2003). A Form A restriction will also be needed.

However, if the partnership agreement expressly requires such a consent to be obtained, the trustees must apply for a restriction in Form B (section 8(2) of Trusts of Land and Appointment of Trustees Act 1996 and rule 94(4) of the Land Registration Rules 2003).

8.9 Pension funds

The portfolios of pension funds frequently include registered estates. They will generally be vested in the managing trustees, or in a custodian trustee (sometimes with others) on trust for the managing trustees. Sometimes a corporate trustee plays the role of the managing trustees. Any application to register the trustees as proprietors of a registered estate should be accompanied by an application for a restriction in Form B if one is required. A Form A restriction will also be required, and if necessary should be applied for – see Form A: the joint proprietorship restriction. However, if the pension scheme is a public, rather than a private, trust you should say so in the application. In that case, you must supply a copy of the trust deed (rule 182(1) of the Land Registration Rules 2003). If the powers of the trustees are limited, you should apply for an appropriate restriction, for example Form B.

8.10 Severance of an equitable joint tenancy

If an equitable joint tenancy has been severed, a proprietor must apply in form RX1 for a Form A restriction (rule 94(1)(b) of the Land Registration Rules 2003). For straightforward cases of severance by agreement or notice it is simpler to use form SEV.

Where the application is made by, or with the consent of, all the proprietors, no difficulty arises. Where possible you should try to obtain the consent of all proprietors. However, in many cases the joint tenancy is severed by notice as a unilateral act of one of the proprietors, who will make the application alone, without the consent of the other(s). In these circumstances, we will treat it as made under section 43(1)(c) of the Land Registration Act 2002. Panel 12 or 13 of form RX1 should be completed with details of the severance. An application lodged by a conveyancer should be accompanied by either:

• a certificate that they hold the original or a certified copy of the notice of severance, signed by the other proprietor(s) to acknowledge receipt (this certificate appears in panel 7 of form SEV)
• a certificate that they hold the original or a certified copy and that it was served on the other registered proprietor(s) in accordance with sections 36(2) and 196 of the Law of Property Act 1925 (this certificate appears in panel 7 of form SEV)

The application will be one that the applicant is obliged to make under rule 94 of the Land Registration Rules 2003. Accordingly, it will not be notifiable within the meaning of section 45 of the Land Registration Act 2002. If it is in order, we will complete it without sending the other proprietors a notice giving them the opportunity to object. We will, however, send them a notification when the application has been completed, telling them of the change to the register. A proprietor who considers that no valid severance has taken place, and that the register is therefore incorrect, will be entitled to apply for the register to be altered to correct the mistake (under paragraph 5(a) of Schedule 4 of the Land Registration Act 2002).

8.11 Transfer of a share

A disposition that relates only to a beneficial interest, and does not alter the proprietors of the legal estate, cannot be registered. Frequently, however, the proprietors of the legal estate will be changed at the same time.

A common example is where one of two joint proprietors purchases the share of the other. Strictly, this can be regarded as comprising two transactions. In the first, proprietor A sells their beneficial interest to proprietor B. In the second, A and B, as trustees of the legal estate, transfer the legal estate to B, who has now become solely and beneficially entitled to it. You can do this by separate instruments if you wish, and only the latter will need to be registered.

However, it will usually be simpler to use a single document for both aspects of the transaction. You should use a form TR1 (or form TR5 or form TP1, if appropriate). Both A and B must be shown as transferors, and B as transferee, because it is the transfer of the legal estate that has to be registered. In the consideration panel, you can use the second option to insert a suitable receipt, for example: “The second transferor has received from the transferee for their half share in the property the sum of £X”. On the accompanying form AP1, you should describe the transaction as ‘Transfer of share’.

If there is a Form A restriction in the register, and it is no longer required, you must remember to apply to cancel it using form RX3. It will not be cancelled automatically. See Cancellation and withdrawal of restrictions.

8.12 Trust corporations

When a trust corporation applies to be registered as sole proprietor of an estate, which it holds on trust, it must apply for a Form A restriction (rule 94(2) of the Land Registration Rules 2003 does not exempt trust corporations). Although it will be able to give a valid receipt for capital money arising on a disposition, the restriction is needed in case the proprietor ceases to be a trust corporation at any time, or is replaced by another trustee.

Where a trust corporation, registered as a sole proprietor with a Form A restriction, enters into a disposition under which capital money arises, it may need to satisfy the registrar that it is a trust corporation. In such a case, a letter from its conveyancer confirming that it is a trust corporation should accompany the application.

9. Things to remember

Make sure that:

• you have completed the declaration of trust panel in the transfer or assent, or completed a form JO
• if you are applying for first registration, you have completed the declaration of trust panel on form FR1 or completed a form JO
• if you are applying for adverse possession of registered land and there are joint owners, you have completed the declaration of trust panel on form ADV1 or completed a form JO
• if you are applying to register a lease out of a registered estate, you have completed the declaration of trust in clause LR14 of the prescribed clauses in the lease, or included a declaration of trust in the lease if it does not contain the prescribed clauses or completed a form JO
• if you need to apply for a Form A restriction, you applied for it either in the transfer, in clause LR13 of the prescribed clauses in the lease, in the assent or in form RX1
• there aren’t any limitations on the powers of the trustees that need to be reflected by a restriction (if so, make sure you applied for it)
• you are applying for a restriction in standard Form RR or SS, if appropriate
• you have applied for any other restrictions you need
• you have complied with any existing restrictions in the register
• you check if you need to apply to cancel a restriction (if so, make sure you completed form RX3 and enclosed the necessary evidence)
• you have supplied an address for service for the new proprietors for entry in the register
• the names and addresses of the trustees are up to date
• if you are registering new trustees, make sure you have completed any transfer correctly, and that you have applied to register all the new and continuing trustees

We only provide factual information and impartial advice about our procedures. Read more about the advice we give.