Practice guide 47: transfers of public housing estates

Question 1

1. Introduction

Accepted Answer

1.1 Subjects covered

The guide covers:

the voluntary sale of housing estates by housing authorities and other local authorities, including county, county borough, district or London borough councils, the Common Council of the City of London or the Council of the Isles of Scilly, the Broads Authority, a joint authority established by Part IV of the Local Government Act 1985, the London Fire and Emergency Planning Authority, a police authority established under section 3 of the Police Act 1996 and National Parks authorities. The local authority voluntary sale provisions are to be found in sections 32 and 43 of the Housing Act 1985 and section 133 of the Housing Act 1988
their acquisition and disposal by housing action trusts
the impact of the preserved right to buy. The preserved right to buy provisions are to be found in the Housing (Preservation of Right to Buy) Regulations 1993 as amended, which set out Part V of the Housing Act 1985 as it applies by virtue of those regulations

It will thus be of interest to those acting for local authorities and for social landlords and other bodies acquiring public housing estates.

This guide is set out broadly in the chronological order of a proposed transaction. That is to say it deals with the questions that each party will have to resolve during each step in the disposal. There is one exception to this and that is the subject of consents to the various transactions by the Secretary of State or the Welsh Parliament. These are interrelated and are, therefore, dealt with as one subject. There are also certain additional matters which relate only to specific situations and these appear in separate sections at the end.

1.2 Subjects not covered

This guide does not cover:

the voluntary sale of housing estates by urban development corporations (which do not require the Secretary of State’s consent), though it does cover the incidence of the preserved right to buy on such sales
disposals of individual houses and flats under the compulsory right to buy provisions, (the right to buy provisions are to be found in Part V of the Housing Act 1985. This guide does contain information about the preserved right to buy) and the voluntary sales provisions (the voluntary sales provisions are to be found in Part II of the Housing Act 1985) of the Housing Act 1985 and under the Housing (Extension of Right to Buy) Order 1993, (S.I. 1993/2240)

1.3 Retention of documents lodged with applications

Original documents are normally only required 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, then we will 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.

1.4 Consultation with the Local Land Registrar

In view of the value and the potential complexity of all the transactions covered in this guide, except for the preserved right to buy, the parties to a potential transfer should consult the Local Land Registrar personally at your closest HM Land Registry office. This will enable us to offer advice at all stages of the transaction and to have a better understanding of our customers’ requirements.

Question 2

2. Statutory powers and land registration

Accepted Answer

The initial vendors in the transactions covered by this guide are not natural persons. Their powers are conferred by statute and they can only undertake actions in accordance with the law governing them.

The registrar is satisfied that all the transactions covered by this guide are within the powers of each of the initial vendors. No further enquiry on this point will be made.

Where the title is registered, there may be a restriction in the register which reflects the limited powers of such a proprietor compared to the unrestricted powers conferred on registered proprietors generally (under section 23 of the Land Registration Act 2002). If there is such a restriction it must be complied with. On first registration of title to property acquired from an initial vendor, evidence of compliance with statutory requirements (usually the consent of the Secretary of State or the Welsh Ministers) will be required.

Consents are discussed further in The consents from the Secretary of State or Welsh Ministers and the restrictions which enforce them.

For the relevant purchaser protection provisions and a general outline of the powers of each of the initial vendors to undertake the transactions, see Powers of initial vendors to dispose of the land and the relevant purchaser protection provisions.

Question 3

3. Common matters

Accepted Answer

3.1 The identification of the land to be transferred and the plans needed

Some readers will not have dealt with the transfer of an entire housing estate, or even a part estate, in one transaction, particularly one where there may have been extensive activity by way of sales or leases in recent years. Perhaps the nearest comparison would be the purchase from a residential builder of the half built residue of an estate. Where the housing estate is unregistered particular care is needed.

Points to consider are the following.

The boundaries of the estate

The initial vendor’s terrier will give considerable help, if it has been kept up to date. Boundaries shown on old conveyance plans should be compared with the modern Ordnance Survey Map and any discrepancies affecting the land to be registered should be resolved. Often the surrounding areas will have been registered. You should, therefore, make a search of the index map to guard against conflicting registrations or unrecorded sales by the vendor. Having completed these preliminary matters, the precise extent of the estate to be registered should be considered and plans prepared for the application as set out below.

Registration of discrete manageable extents

From our experience, we have found that it is often administratively easier for all concerned if very large estates are sub-divided into manageable areas. Such areas may be determined either by reference to extents contained in earlier conveyances of title or simply by reference to suitable topographical features (for example, roads, footpaths, rivers, adjoining estate features). We will be pleased to advise if required.

Housing action trust disposals

Where the disposal is being made by a housing action trust and some, but not all, of the estate is occupied by secure tenants, it may be appropriate to split such housing from the other land. The mandatory restriction can then be confined to the part occupied by secure tenants (see The consents from the Secretary of State or Welsh Ministers and the restrictions which enforce them).

Internal sales off

Local authorities have been selling off houses and flats to tenants since at least 1957. During the 1980s very large numbers were sold. Where the sales took place under the right to buy legislation, they had to be registered. Unless the area was one where compulsory registration on sale applied, voluntary sales made under the Housing Act 1957 and what is now Part II of the Housing Act 1985 did not have to be registered. Many will have been registered but an official search of the index map which does not reveal a registration cannot be treated as evidence that the authority still owns it.

Internal leases off

Flats and maisonettes will invariably have been sold on long lease and so will some houses under the shared ownership provisions of the Housing Act 1985. These will need to be identified and either excluded or included depending on the contract.

Passageways and rooms over them

Many houses have been built with joint passageways and with rooms over them. Adequate records of these features are often unavailable and consequently many sales off have taken place on the basis of the ground floor layout. Some of these, but not all, have been picked up on registration. Care should be taken to ensure that the conveyance or transfer plan does not conflict with the prior sales. The result of the official search of the index map may assist, but as the register or the index map may not be correct, a physical inspection is advisable.

Roads, footpaths, common parts

The plans must also identify:

any roads, footpaths, common parts, unadopted sewers etc which serve the area and which run over the remainder of the estate being retained by the initial vendor
any easements previously obtained by the initial vendor from adjacent owners to enable the estate to be developed in the first place

Plans and the Ordnance Survey

The plans used in the conveyance, transfer or lease must include sufficient details so that the land can be identified clearly on the Ordnance Survey Map. Extracts of the Ordnance Survey Map should be used and, generally, the preferred scale is 1/1250 but only if the details of the layout including individual house boundaries can be shown clearly. Where rooms over passageways or other such detail exists, which is not easily shown at this scale, a scale of 1/500 should be used, as insets if necessary. Please see rule 26, Land Registration Rules 2003. We will not accept plans described “for identification only” or marked “do not scale from this drawing” or any other similar phrase. Practice guide 40: HM Land Registry plans: guide overview and practice guide 41: Developing estates: registration services with its supplements give advice on acceptable plans which may be applied as appropriate to an already built estate.

For these reasons, it will not normally be possible to draw on the plan a simple red line around the estate to transfer it all; careful consideration needs to be given to plan colouring and colour wash may be preferable to edging. Again, we will be pleased to advise where necessary.

3.2 The existing incumbrances to which the land is subject

The extent of the land to be sold is not the only problem. Most if not all of the prior disposals will have involved the grant and reservation of easements over the land to be comprised in the estate disposal.

Note: The grant and reservation of new easements in the estate disposal is covered in sections New easements granted over unregistered land and New easements granted over registered land.

Where the land to be comprised in the estate disposal is already registered then these beneficial and adverse rights should already be shown on the title. Where the land is not registered, note (7) of the Certificate of Title form PSD17 gives guidance on how the easements, covenants and other rights granted and reserved in those sales may be treated in the conveyance, transfer or lease and in that form.

When the register is prepared following the estate disposal, the easements will be treated as follows.

Where previous disposals of land from the estate under the right to buy provisions have created statutory easements, they will be covered by an entry in the property register along the following lines:

“By [transfers] [conveyances] of adjacent or neighbouring land pursuant to Chapter 1 of Part I of the Housing Act 1980 or Part V of the Housing Act 1985 the land [in this title] has the benefit of and is subject to the easements and other rights prescribed by paragraph 2 of Schedule 2 to the Housing Act 1980 or Schedule 6 to the Housing Act 1985.”

Other easements, if granted in common form, for example, in standard form transfers under Part I of the Housing Act 1985 (voluntary sales of council houses) or under Schedule 11 to the Housing Act 1988 (sales of a single house under voluntary provisions by a housing action trust) may be dealt with by general entries like the above.

Where specific unusual rights were granted, they will probably be referred to specifically in the register.

Beneficial easements will be entered in the register as appurtenant to the title if the title of the servient land is registered and an entry relating to the right is shown in the charges register. They will also be shown as appurtenant where the servient land is unregistered unless both the conveyance, transfer or lease and the Certificate of Title form PSD17 exclude them. Initial vendors who have doubts about the title to a prior beneficial easement should therefore exclude the easement specifically. They should bear in mind the effect of section 62 of the Law of Property Act 1925 and covenants for title if they do not specifically want to transfer the benefit of a right. If they do not, they may be liable to indemnify the registrar if it is not shown to be a legal easement in the event of any subsequent dispute.

Where the land was acquired under any compulsory purchase provisions and the authorising statute either permitted the acquiror to extinguish any private rights such as easements which previously affected the land or extinguished such easements automatically (for example, section 295 of the Housing Act 1985), then these facts should be stated in the Certificate of Title.

Other entries will be made in respect of restrictive covenants burdening the estate being registered.

The conveyance, transfer or lease should refer to the restrictive covenants which affect the land or any part of it. However, if preferred, a general statement that restrictive covenants affect may be made there provided the Certificate of Title form PSD17 gives full details of where the text of the covenants can be found.

Some legislation allows local authorities, in effect, to suspend the operation of restrictive covenants while they own the land (for example, under section 237 of the Town and Country Planning Act 1990). However, when the land is sold the covenants may again be enforceable. Such covenants should be referred to in the conveyance, transfer or lease.

If the land is subject to leases which need to be noted in the register, or disclosed as overriding interests, you should lodge certified copies of the counterpart leases.

A lease needs to be noted in the register if it was granted:

for a term of more than 7 years
to take effect in possession more than 3 months after the date of the grant
under the right to buy or shared ownership provisions in Part V of the Housing Act 1985, or
in circumstances where section 171A of the Housing Act 1985 (the preserved right to buy) applies (leases of these kinds must be protected by notice because they do not have overriding status under Schedule 1 to the Land Registration Act 2002)

In addition, any lease granted for a term of more than 3 but no more than 7 years, and which still has more than one year left to run, must be disclosed as an overriding interest, so that it can be noted in the register (rule 28 of the Land Registration Rules 2003).

Certified copies of counterparts of any other leases should be lodged if they contain options to purchase, as this information will be needed to protect the option by notice in the register.

The entry in the charges register for shared ownership leases will be along the following lines:

“The leases specified in the Schedule of Leases which are shared ownership leases made pursuant to [Part I of the Housing and Building Control Act 1984] [sections 143 – 153 of the Housing Act 1985] took effect with the benefit of and subject to the easements and other rights prescribed in paragraph 2 of Schedule [2 to the Housing Act 1980] [6 to the Housing Act 1985].”

There may be other overriding interests that need to be disclosed. See practice guide 15: overriding interests and their disclosure for more information. Where form PSD13, form PSD14, form PSD15 or form PSD17 are used, you should give details of any disclosable overriding interests on it. If you do so, you will not need to lodge a form DI as well (the PSD form will be a document of title under rule 28(2)(b) of the Land Registration Rules 2003).

3.3 The consents from the Secretary of State or Welsh Ministers and the restrictions which enforce them

Once the extent of the estate disposal has been agreed, you will usually need to obtain the consent of the Secretary of State or Welsh Ministers to the disposal. This section deals with the relevant provisions.

You must distinguish between:

initial consent to the disposal of the estate by the initial vendors, and
subsequent consent to a disposal out of that estate by the purchaser

Initial consents will usually contain provisions which allow the disposal of assets with the subsequent consent of the Secretary of State or Welsh Ministers.

Because of this interaction the consent requirements are dealt with in this section. It also sets out the required statements in the conveyance, transfer or lease which declare under what provisions the transaction is being made and the restrictions that will be entered in the register to reflect the requirement for subsequent consent.

3.3.1 Initial consents

Initial consents from the Secretary of State or Welsh Ministers will be required for any disposal of housing by local authorities, (under sections 32 or 43 of the Housing Act 1985) or housing action trusts, (under section 79 of the Housing Act 1988).

Disposals by local authorities

Where an initial consent was required for the initial disposal under sections 32 or 43 of the Housing Act 1985, and that consent did not otherwise provide, the subsequent disposal generally requires a further consent (section 133 of the Housing Act 1988). It will usually do so unless the original disposal was to a private registered provider of social housing or (from 15 August 2018) to a registered social landlord. However, such consent may provide that only some of the houses on the estate are subject to this further restriction on disposition. If this is the case then they should be listed. If convenient this can be done negatively, meaning the whole estate can be stated to be subject to the restriction save for example ‘numbers 1 to 21 (inclusive) Acacia Avenue’. It is important to be accurate in identifying any such properties by making it clear, for example, whether or not they include even or odd numbers or both.

Where there is a requirement for a subsequent consent the approved form of the required statement in the disposal deed is as follows.

“The requirement of section 133 of the Housing Act 1988 for the consent of the [Secretary of State] [Welsh Ministers] to disposals of [the land] [the following properties] in this [Conveyance] [Transfer] [Assignment] [Lease] applies to a subsequent disposal of the said land or properties by the [purchaser] [lessee]. The [purchaser] [lessee] hereby applies to the Chief Land Registrar for the entry of a restriction in form X.”

The restriction will be entered in the proprietorship register in form X, as follows.

“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) or 133(11)] 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 [as appropriate [section 133 of that Act] or [section 173 of the Local Government and Housing Act 1989].”

Disposals under the preserved right to buy

The requirements in relation to the required statement and the restriction are dealt with in sections The disposal subject to preserved rights to buy and The required restriction.

Cancellation of restrictions

The restrictions set out above are obligatory and cannot, therefore, be withdrawn by the proprietor of the land. They will, however, be cancelled on registration of a subsequent transfer made with the consent of the appropriate authority.

3.4 Contracts and their protection

The disposals covered in this guide, with the exception of those under the preserved right to buy provisions, are consensual. They may, therefore, be preceded by a contract between the parties in the usual way. The terms of any contract should have regard to the matters discussed in this guide and to the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989.

If the title is registered, the contract can be protected by an agreed or a unilateral notice. If it is unregistered, a land charge class C (iv) (estate contract) should be registered under the Land Charges Act 1972 at the Land Charges Department, using form K1. If this has been done, applicants for first registration must produce the cancellation certificate with the application.

Where a qualifying person is entitled to a preserved right to buy, in the case of registered land a notice should have been entered in the register in respect of that right when the property was transferred to the new landlord. Similarly, where a new property becomes subject to a preserved right to buy, the landlord should apply to enter an agreed notice in the register. If the landlord fails to do so, the tenant can apply for an agreed notice if they can satisfy the registrar that their claim is valid, under section 34(3)(c) of the Land Registration Act 2002. Alternatively, they can apply for a unilateral notice. If the land is unregistered, a land charge can be registered.

An application for an agreed notice should be made in form AN1, and for a unilateral notice in form UN1.

Register entries relating to the preserved right to buy are dealt with see The Preserved Right to Buy. It is considered that such entries provide adequate protection for a person entitled under a preserved right to buy.

An application to the court (for example, under section 181 of the Housing Act 1985) to enforce the statutory duty of a disponor of land subject to a preserved right to buy to transfer it subject to that right may well constitute a pending land action within the meaning of the Land Charges Act 1972. If so, it can be protected by an agreed or unilateral notice (sections 34 and 87(1)(a) of the Land Registration Act 2002) or, if the land is unregistered, by registering the pending land action at the Land Charges Department. Similarly, any court order enforcing the statutory duty could be protected by agreed or unilateral notice (sections 34 and 87(1)(b) of the Land Registration Act 2002), or registered as a writ or order affecting land in the Land Charges register.

However, a preserved right to buy is not an overriding interest (even where the person entitled is in actual occupation), (paragraph 6(1) of Schedule 9A to the Housing Act 1985), as substituted by paragraph 18(10) of Schedule 11 to the Land Registration Act 2002. Consequently, if the property is transferred for valuable consideration without the preserved right to buy being protected in the register, the tenant cannot register a notice in respect of it, (because the purchaser will have gained priority over it under section 29(2) of the Land Registration Act 2002). Nor can they register a land charge if the land is unregistered (paragraph 6(2) of Schedule 9A to the Housing Act 1985).

3.5 Searches

Because of the extent problems already discussed, you should always make an official search of the index map. An acquiror under any of the disposals covered in this guide will be able to make an official search with priority to protect the purchase of the land, (under rule 148 of the Land Registration Rules 2002). This includes a purchaser under the preserved right to buy provisions.

3.6 Discharges of existing mortgages

The general principle for all the disposals covered in this guide is that all mortgages, unless the contract otherwise provides, will need to be:

discharged as to the whole or part using the appropriate HM Land Registry form
in the case of disposals by lease, to be accompanied by a consent from the mortgagee, or
in the case of unregistered land, released or consented to in the usual way

There is one exception to this principle where the legislation provides that the mortgage is automatically discharged or released, although the mortgagor’s personal liability will not be. This exception arises under the right to buy (whether or not preserved) (paragraph 21 of Schedule 6 to the Housing Act 1985). No discharge, consent, or release will be required for such a disposal.

3.7 The form of the transfer, conveyance or lease

The prescribed form of transfer for these transactions is form TR1 or form TP1. There is no prescribed form of conveyance or lease. The instrument must contain the required statements and where necessary, the list of properties occupied by secure tenants.

3.8 Unregistered land and the Certificate of Title

The Certificate of Title which must be given under the legislation is Certificate of Title form PSD17 for all transactions covered in this guide, (the Certificate is that approved by the registrar under section 171 G and paragraph 2(4) of Schedule 9A to the Housing Act 1985, section 108 and paragraph 2(2) of Schedule 12 and 133(8) to the Housing Act 1988) except individual sales to tenants exercising the preserved right to buy (there are 2 Certificate of Title provisions under the preserved right to buy. The first, for the disposal of the estate or individual house to a person other than the secure tenant is made under Schedule 9A Housing Act 1985. The second, where the former secure tenant exercises the preserved right to buy is under section 154 of the Housing Act 1985 as applied by the Housing (Preservation of Right to Buy) Regulations 1993 as amended. Such latter cases will be rare, as discussed in Exercise of the preserved right to buy by a qualifying person, because the estate will usually already have been registered. However, the new landlord can, as discussed below, move tenants to unregistered property and a sale to the tenant will then be under the second regime).

The Certificate of Title avoids the need for the purchaser to investigate the title and any easements granted in the disposal, and the registrar can rely upon it when considering what class of title to grant in respect of the land. If there are any errors in the Certificate of Title and as a result the registrar suffers loss by having to indemnify a proprietor or anyone else (under section 103 and Schedule 8 to the Land Registration Act 2002) the giver of the certificate will, in turn, have to indemnify the registrar.

3.9 Compulsory registration

The various regimes originally contained provisions which required the compulsory registration of any disposals under them. These provisions have now been superseded by the general requirement to register contained in section 4 of the Land Registration Act 2002.

Note, in particular, that the grant of a lease under the right to buy, or the grant or transfer of a lease where the land is subject to a preserved right to buy, gives rise to compulsory registration, even if the lease has less than 7 years to run (section 4(1)(b)(e) and (f) of the Land Registration Act 2002. See also section 27(2) of the Land Registration Act 2002 where such a lease is granted out of a registered estate).

3.10 New easements granted over unregistered land

Where any land over which easements are granted is unregistered then the Certificate of Title should be given, see Unregistered title and the Certificate of Title. HM Land Registry’s view is that the requirement for a Certificate of Title and the power of the initial vendor to give it extend to the grant of any easement over unregistered land in the ownership of the vendor even if the dominant land is already registered. Any easements granted in conveyances by initial vendors will be registered as appurtenant to the title unless other extrinsic evidence available to the registrar contradicts the certificate (for example, if part of the servient land was already registered in the name of someone other than the initial vendor).

3.11 New easements granted over registered land

Where specific beneficial easements are granted over other registered land in the ownership of initial vendors by the instrument of disposal they will be treated in the normal way. The application form should give the title number of the servient land. As long as the servient land is registered wholly in the name of the vendor the easements will be included in the registered title.

3.12 The registration of the transfer, conveyance or lease

If it is not possible to lodge an application electronically, you should send your application to the stated address for applications.

3.13 The registration of the proprietor

Where the purchaser is a body corporate of a particular type, such as a registered social landlord, restrictions may be required to reflect limitations on their powers to deal with the registered estate. Where the purchaser is a non-exempt charity, the appropriate charity restriction will be entered in the register – see practice guide 14: charities - advice for applications sent to HM Land Registry.

3.14 Fees payable

HM Land Registry fees are payable under the current Land Registration Fee Order, see HM Land Registry: Registration Services fees.

3.15 Dealing with disposals while the estate is being registered

In many cases, the financing arrangements made by the purchaser will mean that it is relying on making sales to tenants and others while the land is being registered. The problems to which this gives rise are well known and are not discussed here. However, there are purely practical ways of avoiding a long delay in being able to complete the sales off. These include:

the initial vendors completing as many sales as possible before completion where tenants have exercised their rights under the Housing Acts
making sure the application is correct and that all necessary documents are lodged
dividing the purchase up into parcels so that a problem on one part does not affect the whole
where it is known in advance that properties are to be sold, obtaining separate Certificates of Title (where applicable) and transfers for them so that they can be registered individually

It is strongly recommended that these matters should be discussed with the Local Land Registrar at the HM Land Registry office concerned, particularly as the use of multiple applications could lead inadvertently to increased fees. See Consultation with the Local Land Registrar for further details.

3.16 Mortgages after acquisition by the purchaser

Where the legislation requires the entry of a restriction in the register, then, even if the title has not yet been registered, a charge or mortgage is a disposal. Since it must occur after the purchaser has acquired the interest being registered, a charge is subject to the need for consent under the restriction before it can be registered. However, provision is made for this so that where such restrictions apply there can be an exempt disposal of an interest by way of security for a loan (sections 81(3) for disposals before 15 August 2018) and 133 of the Housing Act 1988 for disposals on or after 15 August 2018. In all these cases exempt disposal is defined in section 81(8) (for disposals before 15 August 2018) or section 133 (for disposals on or after 15 August 2018) of the Housing Act 1988). It is also provided that the charge itself will be subject to a condition of consent before the proprietor of it can exercise powers (sections 81(4) (for disposals before 15 August 2018) and 133(2) of the Housing Act 1988 for disposals on or after 15 August 2018). Where the new landlord is subject to the preserved right to buy regime, consent to the creation of the charge will be needed, see A mortgage by the new landlord.

Where the proprietor of the charge exercises the power of sale a purchaser will need to be satisfied, and be able to satisfy HM Land Registry, that the consent has been given. Where the consent is a general consent which provides:

that the property will be vacant at the time of the sale
that the purchaser is an intending owner occupier
that the price is the best reasonably obtainable

then the registrar will require a certificate from the vendor/mortgagee that the conditions of the consent have been fulfilled in respect of the transfer. In these circumstances the registrar would have no objection to this certificate being endorsed on the transfer.

No enquiry will be made by HM Land Registry as to the existence of any such consent if application is made to protect the charge by an agreed or a unilateral notice. If subsequently application is made to register it substantively (it will have to be if any exercise of the power of sale is contemplated) the consent will be needed.

However, where the court has ordered a sale under section 90 of the Law of Property Act 1925 the consent will not need to be produced on the basis that the court will have had to be satisfied that a charge existed in equity before making the order and will have thus had to satisfy itself that there was consent.

3.17 Restrictions on other disposals

The restrictions on further disposal discussed in this paragraph do not include the provisions restricting disposals where the preserved right to buy also applies. In such a case, a consent under those much more restrictive provisions will also be needed and will be reflected in the separate proprietorship restriction for those regimes – see The required restriction.

As reflected in the proprietorship restrictions discussed above, the general rule is that all dispositions are restricted by the need for consent unless they are classed as exempt disposals. For the purposes of the legislation a contract to dispose of an interest is a disposal (section 133(4) of the Housing Act 1988, sections 32(4) or 43(5) of the Housing Act 1985 and section 173(4) of the Local Government and Housing Act 1989.

Before registering any disposition, therefore, the registrar will need to be satisfied either that:

there has been a specific or general consent to the disposition by the Secretary of State or Welsh Ministers, or
that it is an exempt disposal

Where application is made to note a contract for a disposition, (section 34 of the Land Registration Act 2002) the applicant will have to satisfy the registrar similarly.

HM Land Registry reserves the right to require the applicant to obtain confirmation from a vendor that the transaction falls within the consent and, in particular, that any conditions set out in the consent, such as valuation or notification to tenants, have been complied with. Such confirmation is particularly likely to be required where the consent is a general consent by the Secretary of State or Welsh Ministers. The confirmation is required to ensure that a disposition which needs consent is not registered by mistake. If the conditions have not been complied with, it is likely that the transaction is not within the consent and may therefore be void.

See Retention of documents lodged with applications, regarding retention of documents sent to us.

So far, this section has dealt with disposals of registered land. However, in the case of disposals of land owned by a housing action trust, the land itself may not be registered. As mentioned, a trust may acquire its land by statutory vesting and may not have registered it. Where it has not been registered, it will need to be registered on a disposal by the trust under the normal provisions (section 4 of the Land Registration Act 2002).

The registrar will require similar evidence on the registration of the disposition as if the land were registered, but certain additional requirements are imposed on sales by housing action trusts and these are as follows.

Sales of a single home under voluntary provisions

Unlike the right to buy provisions, where a housing action trust has been added to the list of landlords against whom such provisions operate (section 83 of the Housing Act 1988), special provision is made for voluntary disposals of land by housing action trusts (section 79 and Schedule 11 to the Housing Act 1988). Where consent is given by the Secretary of State or Welsh Ministers and that consent allows sales at a discount and does not exclude the imposition of a discount charge, the usual obligation to repay the whole or part of any discount on early disposal and the charge to secure the obligation apply.

There are no provisions requiring the housing action trust to give a Certificate of Title under such voluntary sales to the purchaser.

Since these provisions are very similar to those contained in Part II of the Housing Act 1985 they are not further discussed.

However, if the housing action trust imposes a discount charge under these provisions, the disposition must make it clear that the trust is acting under its powers under Schedule 11 to the Housing Act 1988 so that the appropriate entry may be made in the charges register of the purchaser’s title.

The form of the entry will follow that of the entry of the discount charge under Part V of the Housing Act 1985 but with reference to section 79(13) and Schedule 11 to the Housing Act 1988.

Cancellation of the discount charge will be dealt with in the same way as discount charges under the Housing Act 1985.

Disposals of homes subject to a secure tenancy

There are special provisions on the disposal of a house or flat which is subject to a secure tenancy immediately before the disposal. Although the legislation (section 79 of the Housing Act 1988) refers to a house or flat, it is in fact more likely to be appropriate to sales of an estate or part estate and the following discussion assumes this to be the case.

The purpose of the legislation is to protect the tenant as the tenancy moves from being a tenancy in the public sector to one which may be in the private sector.

This it does by:

requiring that such transfers can only be to approved persons, (defined as a registered social landlord, non-profit registered provider of social housing, local housing authority or other local authority: section 79(2) of the Housing Act 1988). and
(to ensure that such persons cannot then dispose of the estate to unapproved persons) providing that there cannot be a further disposal without the consent of the Secretary of State or Welsh Ministers

There is an exemption for transfers falling within Part V of the Housing Act 1985 (the right to buy). These provisions can be contrasted with the preserved right to buy provisions (see The preserved right to buy) which protect a specific right of such a tenant to buy their house or flat. The 2 regimes can, and often will, run in parallel in the same transaction.

The following is a list of exempt subsequent disposals of land for which no consent is required as defined in section 133(11) of the Housing Act 1988 (as inserted by the Regulation of Registered Social Landlords (Wales) Act 2018). However, it does not include disposals permitted under the preserved right to buy provisions which, although they are similar, are not the same and are dealt with under The disposal subject to preserved rights to buy. The disposals include:

the disposal of a dwellinghouse to a person having the right to buy under Part V of the Housing Act 1985, whether the disposal is in fact made under that part or otherwise
a compulsory disposal within the meaning of Part V of the Housing Act 1985 (whether the disposal is in fact made under that Part or otherwise)
the disposal of an easement or rentcharge
the disposal of an interest by way of security for a loan – see Mortgages after acquisition by the purchaser
the grant of a secure tenancy or what would have been a secure tenancy but for any of the paragraphs 2 to 12 of Schedule 1 to the Housing Act 1985
the grant of an assured tenancy or an assured agricultural occupancy, within the meaning of Part 1 of the Housing Act 1985, or what would be such a tenancy or occupancy but for any of the paragraphs 4 to 8 of Schedule 1 of this Act
the transfer of an interest held on trust for any person where the disposal is made in connection with the appointment of a new trustee or in connection with the discharge of any trustee

In addition to the above exempt disposals there is one further circumstance, (the legislation is contained in section 133(2) of the Housing Act 1988). where consent will not be required. This is where the proprietor of the land loses it by operation of law or by an order of the court and the land passes, or is transferred, to another person. In these cases the new owners will be registered but subject to the same restriction.

Where the proprietor is registered with a restriction preventing the disposal of an interest without the consent of the Housing Corporation, the Regulator of Social Housing or Welsh Ministers, this restriction may be ignored if consent is given by the Secretary of State under one of the restrictions set out in The consents from the Secretary of State or Welsh Ministers and the restrictions which enforce them (section 133(7) of the Housing Act 1988).

Finally, the registrar will make one non-statutory, and wholly discretionary, exception to the need for consent. This is where the registered proprietor certifies that the land comprised in a disposition (whether transfer of part or lease or transfer of whole) is land which, while it was originally included as part of a larger parcel which contained houses on which the restrictions on further disposal operate, has never been subject to such restrictions. This is intended to cover the situation where, for example, houses around a green were disposed of with the green in one original transfer, so that they were registered under a single title with a restriction, and there is subsequently a disposal of part of the green. In such circumstances the certificate that the land in question had never been affected by the restriction will need to be signed by a responsible officer of the registered proprietor.

Question 4

4. The preserved right to buy

Accepted Answer

4.1 The consents from the Secretary of State or Welsh Ministers and the restrictions which enforce them

In Common matters, reference is made to the arrangement under which tenants may be protected against the actions of an indifferent private sector landlord by a system of approval for the new landlord and its immediate successor. This protection is in relation to the general nature of the tenancy. The preserved right to buy is a specific right of a former tenant of a public sector landlord to have one of their rights as a tenant preserved against a social or private sector landlord, namely the right to buy the freehold or a lease under Part V of the Housing Act 1985. A tenant will generally cease to be a secure tenant when their landlord’s interest in their house is transferred to a landlord which does not fall within the class of public sector landlords set out in the Housing Act 1985.

The class of public sector landlords currently includes (as to registered social landlords, see section 1 of the Housing Act 1996).

a local authority
a development corporation
a housing action trust
the Homes and Communities Agency (trading as Homes England)
the Secretary of State
an urban development corporation
a housing trust which is a charity
a housing association which is a registered social landlord or a private registered provider of social housing but is not a cooperative housing association
a cooperative housing association which is neither a private registered provider of social housing nor a registered social landlord
a housing cooperative within the meaning of section 80(4) of the Housing Act 1985
and in certain circumstances the class can include the Homes and Communities Agency trading as Homes England and Welsh Ministers

A new ‘right to acquire’ is conferred upon certain tenants of registered social landlords by section 16 of the Housing Act 1996, (As to registered social landlords, see section 1 of the Housing Act 1996).

4.2 The specific right

Under the normal right to buy a secure tenant (broadly speaking, the tenant of a public sector landlord) ‘takes’ with them the right to buy whatever property they may currently occupy (subject to the exceptions in Schedule 5 of the Housing Act 1985) and this right will go on even if during the time the tenant is a secure tenant, they move – from a house, to a flat and back to a house, for example. The right is not confined to one particular house or flat. However, once a tenant is no longer a secure tenant, the right to buy crystallises against the house currently occupied. This right then becomes the preserved right to buy and it is noted as a burden against the particular property. In certain circumstances, the new landlord is given the right to move the tenant, and the right then applies to the new property. The old entry must then be cancelled and a new one made. Similarly, if the right ceases to exist (for example, because the tenant dies and there is no succession to the right) the entry may be cancelled. It is this package of rights that this section describes.

4.3 The legislation and transitional arrangements

In this section, the footnote references are to Part V of the Housing Act 1985 as it applies by virtue of the Housing (Preservation of Right to Buy) Regulations 1993 as amended. These Regulations contain the complete code for the preserved right to buy.

The Housing (Preservation of Right to Buy) Regulations 1993 as amended replaced almost identical 1989 Regulations except for cases where notice to exercise the preserved right to buy was served before 11 October 1993.

4.4 The disposal subject to preserved rights to buy

The preserved right to buy will come into operation whenever there is a disposal of a house subject to a secure tenancy to a person who does not satisfy the landlord condition for the creation of a secure tenancy and the secure tenancy (for example the new landlord does not come within the class of public sector landlord set out in section 80(1) of the Housing Act 1985 as from time to time amended or added to (see The consents from the Secretary of State or Welsh Ministers and the restrictions which enforce them.) thereby ceases to be such (section 171A(1) of the Housing Act 1985). There may well therefore be 2 separate regimes governing any particular house, for example the voluntary disposal regime and the preserved right to buy regime. In certain crucial areas, particularly the creation of a mortgage by the new landlord, the regimes do not coincide; a consent may be required under one regime but not under another (see The consents from the Secretary of State or Welsh Ministers and the restrictions which enforce them). It is also the case that there are landlords in respect of which the preserved right to buy may be the only regime that operates.

The qualifying disposal, which may be a conveyance, transfer or lease, must:

contain a statement that it is a disposal to which section 171A of the Housing Act 1985 applies, (Paragraph 1, Schedule 9A to the Housing Act 1985). The strongly recommended form is as follows:

“Section 171A of the Housing Act 1985 applies to this deed so far as it relates to dwellinghouses occupied by secure tenants. The [purchaser][lessee] applies for entry of the notice and restriction required by paragraph 4 of Schedule 9A to that Act.”

list, to the best of the vendor’s knowledge and belief, the houses occupied by secure tenants. This list should be drawn up, preferably in a schedule to the instrument, in alphanumeric order (see The entries in the register of a title subject to preserved rights to buy for an example of an alphanumeric entry). Normally all houses must be listed separately. However, it is permissible to list them as “Nos 1 – 15 (odd) Acacia Avenue”, or to say “all numbers”, provided that it is clear exactly what the addresses of the properties are
be registered, in the case of a lease, regardless of the length of the lease (sections 4(1)(b) and (f) and 27(2)(b)(v) of the Land Registration Act, 2002)
where the land is unregistered, or where the dominant land is registered but the instrument grants rights over unregistered land, be accompanied by a Certificate of Title form PSD17

4.5 The entries in the register of a title subject to preserved rights to buy

The registrar has a duty to make entries in the register reflecting the statements made in the instrument. This will be done in the charges register and except where only one or two houses are involved (where no schedule will be created), the entry will take the following form:

“Such dwellinghouses as are listed below are the subject of a preserved right to buy entered on the date shown in favour of qualifying persons within the meaning of Part V of the Housing Act 1985 as it applies by virtue of regulations under section 171C of that Act. Item No. Description of Qualifying Dwellinghouses. Date of Entry of Notice”

A specimen entry might look like this:

Item No	Description of Qualifying Dwellinghouses	Date of Entry of Notice
1	3 Acacia Gardens	1.4.1991
2	4 Acacia Gardens	1.4.1991
3	5 Acacia Gardens	1.4.1991
4	27 Bracken Road	1.4.1991
5	32 Bracken Road	1.4.1991
6	2 Crabtree Avenue	1.4.1991

This is an example of an alphanumeric entry. Since on very large estates, for reasons which will be discussed below, there may well be considerable changes in the properties subject to preserved rights to buy, HM Land Registry considers that it is helpful to all concerned if this method is used.

4.6 The required restriction

The statements required in the instrument referred to in The disposal subject to preserved rights to buy are required so that the registrar can identify the transaction. The registrar is under a duty to enter a restriction in the register against any proprietor who becomes registered as a result of the instrument.

That proprietor cannot dispose of less than their whole interest without the consent of the Secretary of State or Welsh Ministers, unless it is to a qualifying person or persons (section 171D of the Housing Act 1985). A disposal without consent is void except where the registrar has failed to make an entry in the register reflecting the preserved right to buy. Suppose, for example, that number 1 Acacia Gardens was listed in the schedule in the instrument but the registrar failed to include it in the register entry, so that it was included in a mortgage entered into without the consent of the Secretary of State or Welsh Ministers. The tenant would then be in danger of losing their preserved right to buy, as it is not an overriding interest (paragraph 6 of Schedule 9A to the Housing Act 1985, as substituted by paragraph 18(10) of Schedule 11 to the Land Registration Act 2002.

As will be discussed below, in certain circumstances the preserved right to buy can exist against an unregistered title. In those circumstances when the right to buy ceases to be preserved it will be treated, if it is not registered as a land charge, as void against a purchaser under paragraph 6(2)) and will be postponed to a registrable disposition made for valuable consideration (section 29 of the Land Registration Act 2002). The qualifying tenant would be entitled to indemnity from the registrar for the loss caused by the failure of the registrar to perform their statutory duties (section 103 and Schedule 8 to the Land Registration Act 2002. The registrar’s statutory duty is set out in section 171G and in paragraph 4 Schedule 9A to the Housing Act 1985, as substituted by paragraph 18(7) of Schedule 11 to the Land Registration Act 2002).

If, on the other hand, the original vendor failed to list number 1 Acacia Gardens as it was not known to be subject to the right to buy then an action for breach of statutory duty will lie against it (paragraph 9 of Schedule 9A to the Housing Act 1985).

Finally, if a property is listed erroneously and a person suffers loss as the result of the registrar making an entry, the registrar is entitled to be indemnified for such loss if they have to pay it in the first place (for example as a claim for indemnity under the Land Registration Act 2002). The restriction in the proprietorship register is as follows in Form W:

“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.”

Since it may not be clear to the registrar on a disposition by way of lease whether or not the applicant lessee is a qualifying person, a requisition may be avoided if the lease makes it clear that the applicant is such a person. In all other cases (apart from transfers, which are not covered by the restriction) a consent will be required.

Previous forms of this restriction did not make it clear that a transfer of the landlord’s whole interest did not need this consent. Any such restriction will now be read as if this was the case.

4.7 A mortgage by the new landlord

A mortgage by a proprietor will be a disposition for which consent will be needed if it includes any houses subject to the preserved right to buy. The creation of a mortgage is not an exempt disposal and, since it is clearly not a disposal of the entire interest of the new landlord, it is caught by the requirement of consent.

4.8 Change of entries relating to the preserved right to buy

The entries relating to the preserved right to buy will not be entirely static. The new landlord has the right to move tenants, with their consent, around its estate or indeed to any other house that it may own. In this case, the preserved right to buy goes with the tenant.

The landlord has a duty to apply to the registrar to enter notice of the tenant’s rights and for a restriction in Form W whenever:

the house is entirely different from the old house, or
they add land to the existing house extent (paragraph 5 of Schedule 9A to the Housing Act 1985, as amended by paragraph 18(8) of Schedule 11 to the Land Registration Act 2002)

Tenants also have the right to apply to enter the notice and restriction (under sections 34 and 43(1)(c) of the Land Registration Act 2002. Paragraph 5(3) of Schedule 9A to the Housing Act 1985 is repealed by paragraph 18(9) of Schedule 11 to the Land Registration Act 2002). Landlords should make application on form PSD101.

This is the case where the new house or land is held on a registered title.

However, it is possible that the other house is not registered and, since there is no requirement to register it, provision is made (paragraph 5(4) of Schedule 9A to the Housing Act 1985) for the preserved right to buy to be registered as a land charge class C(iv) (estate contract) under the Land Charges Act 1972. Any application to the Land Charges Department should be made on the normal land charges form K1.

If the tenant has been moved to a new house and the old house is not occupied by a tenant with the preserved right to buy, the landlord should certify on form PSD103 that the land previously affected is no longer subject to the preserved right to buy, and apply for the cancellation of the entries relating to it.

4.9 Cancellation of entries relating to the preserved right to buy

Entries relating to the preserved right to buy for any particular qualifying dwellinghouse will be cancelled by the registrar provided the statements listed below are included in the transfer or lease.

Where there is a sale to the tenant under the preserved right to buy, the disposition must contain the following statement, or one to like effect, prominently in the instrument:

“This [transfer][lease] is to a qualifying person and is made in pursuance of the provisions of Part V of the Housing Act 1985 as they apply by virtue of section 171A of that Act (paragraph 7(1), Schedule 9A to the Housing Act 1985).”

Where there is a sale to the tenant who has the benefit of the preserved right to buy but not actually under those provisions, eg on terms similar to voluntary disposals of council houses and the preserved right to buy ceases to exist, the disposition must contain the following statement, or one to like effect, prominently in the instrument:

“This [transfer][lease] is to a qualifying person but is not made in pursuance of the right to buy and the land [transferred][leased] ceases to be subject to any rights arising under Part V of the Housing Act 1985 (paragraph 7(2), Schedule 9A to the Housing Act 1985).”

Where the land is transferred to a public sector landlord (ie a person who satisfies the landlord condition for secure tenancies) the transfer or lease, It seems that the provision will operate if the landlord grants the lease to the public sector landlord so that the tenant becomes a tenant of the latter, must contain the following statement, or one to like effect, prominently in the instrument:

“Under the provisions of section [171D(1)(a)][171E(2)(a)] Housing Act 1985 the land [transferred][leased] ceases as a result of this [transfer][lease] to a person who comes within section 80(1) of that Act to be subject to any rights arising by virtue of section 171A of that Act (paragraph 7(3), Schedule 9A to the Housing Act 1985).”

4.10 Further cancellation provisions

(i) If land ceases to be subject to a preserved right to buy, for example because the tenant has quit and the new tenant, if any, does not have the preserved right to buy, the landlord should apply for cancellation of the entries relating to the preserved right to buy. The application must be made in form CN1 and (if no land in the title remains subject to the preserved right to buy) form RX3, supported by a certificate pursuant to the provisions of paragraph 8 of Schedule 9A to the Housing Act 1985. A wrongful application which leads to a claim against the registrar will make the landlord liable to indemnify them (paragraph 9(2)(c), Schedule 9A to the Housing Act 1985.)

(ii) If the landlord’s registered interest has determined, the title will be closed on application. The entries relating to the preserved right to buy will be carried forward to the title to the superior interest (assuming it is registered) unless:

the termination of the landlord’s interest results from a transfer to a public sector landlord and the transfer contains the last of the 3 statements set out in Cancellation of entries relating to the preserved right to buy (the statement should refer to section 171E(2)(a) of the Housing Act 1985), or
the applicant applies for cancellation of the entries on the basis that the right to buy has ceased to be preserved, in which case the entries will simply be cancelled. The application must be in form CN1 and (if no land in the title remains subject to the preserved right to buy) form RX3, supported by a certificate pursuant to the provisions of paragraph 8 of Schedule 9A to the Housing Act 1985. Form PSD103 can be used to provide this certificate, although its use is not compulsory

Whether the right to buy ceases to be preserved in such circumstances depends on the detailed provisions of section 171E of the Housing Act 1985.

(iii) Although the right to buy has been abolished for properties in Wales, it may continue to apply where a right to buy claim was commenced before 26 January 2019 (rule 5 of the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 (Consequential Amendments and Savings Provisions) Regulations 2019). An application for cancellation of a preserved right to buy notice in respect of a property in Wales should include evidence to satisfy the registrar that the interest has come to an end.

4.11 Land charge cancellation

In no circumstances will there be automatic cancellation of any entries in the Land Charges Department. The usual application will have to be made for cancellation by the person having the benefit of the entries.

4.12 Fees

The normal fees for entry of notices in the register under sections 34 or 43 of the Land Registration Act 2002 payable under the current Land Registration Fee Order apply to entries made in respect of the preserved right to buy, see HM Land Registry: Registration Services fees. A notice may be cancelled without fee.

4.13 Exercise of the preserved right to buy by a qualifying person

In most cases, when a qualifying person having the preserved right to buy exercises that right, the land will already be registered. However, where the tenant/qualifying person has been moved by the landlord it is possible that the qualifying dwellinghouse is unregistered. The landlord must give the tenant the appropriate Certificate of Title in such cases (section 154 of the Housing Act 1985 as applied by the 1993 Act). These are as follows.

The conveyance or lease must contain the first statement referred to in Cancellation of entries relating to the preserved right to buy (the other statements will not be relevant in such transactions).

4.14 The entries on the landlord’s title after exercise of the preserved right to buy

This section deals with the additional entries which will be made against a landlord’s title when a tenant exercises the preserved right to buy. Although this right is very similar to the ordinary right to buy, it is undertaken under its own separate code. Accordingly any existing entries that there may be on a landlord’s title relating to the ordinary right to buy which operated before they bought it, will not be appropriate for transactions under the preserved right to buy.

In the case of freehold transfers, the entry made in the property register of the landlord’s title on the first transaction will be as follows.

“The transfers of those parts edged and numbered in green on the title plan which were made pursuant to Part V of the Housing Act 1985 as it applies by virtue of the Housing (Preservation of Right to Buy) Regulations 1993 took effect with the benefit of and subject to the easements and other rights specified in paragraph 2 of Schedule 6 to the said Act as it so applies.”

In the case of new leases, the following entry will be made in the charges register.

“The leases specified in the Schedule of Leases hereto which were made pursuant to Part V of the Housing Act 1985 as it applies by virtue of the Housing (Preservation of Right to Buy) Regulations 1993 took effect with the benefit of and subject to the easements and other rights specified in paragraph 2 of Schedule 6 to the said Act as it so applies.”

Question 5

5. Acquisition of land by a housing action trust

Accepted Answer

This part is concerned with the acquisition of an estate by a housing action trust.

Since this poses some particular problems over future disposals from the estate, it is included in this guide. A housing action trust is established by the Secretary of State or the Welsh Parliament in relation to a designated area which may be added to and which does not need to be contiguous (the provisions governing housing action trusts are to be found in Part III of the Housing Act 1988, sections 60 to 92 and schedule 11). Broadly, the aims of a housing action trust are to renovate an area of run down housing and its general environment (the precise objects are set out in section 63 of the Housing Act 1988). In pursuance of this objective, the trust has power to:

acquire, hold, manage, reclaim and dispose of land and other property
carry out building and other operations
seek to ensure the provision of water, electricity, gas, sewage and other services
carry on any business or undertaking and generally do anything necessary or expedient for the purposes of those objects and powers or for purposes incidental thereto (section 63(3) of the Housing Act 1988)

A housing action trust can acquire its assets in the following ways.

By order of the Secretary of State or the Welsh Parliament ordering a transfer of housing accommodation from a local housing authority, a county council, a waste disposal authority, a joint body established under Part IV of the Local Government Act 1985 or a residuary body established under Part VII of that Act (sections 74 and 75 of the Housing Act 1988). The Order may provide for financial terms so that the local housing authority etc receives compensation
By statutory vesting by an order of the Secretary of State or the Welsh Parliament and, where appropriate, a minister (section 76 of the Housing Act 1988) of land which is owned by a public body or a statutory undertaker
By agreement, or provided the Secretary of State or the Welsh Parliament consents, compulsorily (Schedule 10 to the Housing Act 1988) contains extensive provisions on the powers of housing action trusts to compulsorily acquire land or rights and to extinguish rights or override easements. Land whether within or without the designated area of the housing action trust and whether or not adjacent to that area may be acquired and it also has limited rights to acquire other land for the purposes of exchanging land to carry out its functions (section 77 of the Housing Act 1988). It may also acquire compulsorily new rights over other land, such as easements (section 77(4) of the Housing Act 1988)

Land which is acquired by agreement or under compulsory powers will need to be registered in accordance with the general principles of compulsory registration – see Statutory powers and land registration.

Where the land is vested in the housing action trust by statutory instrument, then:

in the case of unregistered land, it will not normally need to be registered under the Land Registration Act 2002. Proof of title on any subsequent transaction will consist of the normal conveyancing evidence of title for at least 15 years from a good root together with a copy of the statutory instrument under which the land was vested
in the case of land that is already registered, an application for alteration of the register to show the new owner should be made under paragraph 5(b) of Schedule 4 to the Land Registration Act 2002

Fees will be payable in the normal way under the current Land Registration Fee Order for land acquired by agreement, see HM Land Registry: Registration Services fees.

Applications for alteration of the register following a statutory vesting do not attract a fee under the current Land Registration Fee Order.

Because of the limitations in the powers to dispose of housing land mentioned in Powers of initial vendors to dispose of the land and the relevant purchaser protection provisions, on registration of a housing action trust, you should consider an application for the entry of a restriction in the Proprietorship Register reflecting these limitations. Where the property is subject to secure tenancies, the provisions of The consents from the Secretary of State or National Assembly for Wales and the restrictions which enforce them apply.

Question 6

6. Powers of initial vendors to dispose of land and the relevant purchaser protection provisions

Accepted Answer

6.1 Local authorities

Local authorities have virtually unrestricted powers to dispose of land although the consent of the Secretary of State or Welsh Ministers is often required (Housing land may only be disposed of under section 32 of the Housing Act 1985 which imposed a consent requirement). Section 128(2) of the Local Government Act 1972 provides that a purchaser need not be concerned to see if the consent has been given or whether it covers the particular transaction.

Notwithstanding section 128(2), the disposal of a house or flat by a local authority without consent is void unless:

the disposal is to an individual or to 2 or more individuals, and
the disposal does not extend to any other house (section 44(1) of the Housing Act 1985)

6.2 Housing action trusts

A housing action trust is free, subject to any directions by, and with the consent of, the Secretary of State or the Welsh Parliament, to dispose of any land that it owns (section 79 of the Housing Act 1988). However, it is restricted in what it can do with a house or flat which is the subject of a secure tenancy unless it is sold under the right to buy (section 79(2) of the Housing Act 1988). All disposals of land require the consent of the Secretary of State or the Welsh Parliament which may be given generally or specifically, section 79(4) and (5) of the Housing Act 1988. A disposal of land which includes a house or flat made without such consent is void unless:

the disposal is to an individual or to 2 or more individuals, and
the disposal does not extend to any other house (section 80 of the Housing Act 1988)

Where the land does not consist of a house or flat, then a purchaser is not concerned to enquire whether or not a consent has been given and the disposal is not invalid (section 80(2) of the Housing Act 1988).

Question 7

7. Things to remember

Accepted Answer

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

Cookies on GOV.UK

Applies to England and Wales