Guidance

Practice guide 42: upgrading the class of title

Updated 17 February 2020

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

When title to a legal estate is registered with HM Land Registry there are 7 possible kinds of title that may be granted. Both freehold and leasehold estates may be registered with either:

• an absolute title
• a possessory title
• a qualified title

In addition, leasehold estates may be registered with a good leasehold title. The class of title with which the property is registered is stated at the beginning of the proprietorship register.

2. What the classes of title mean

2.1 Absolute

This is the best class of title and the one that will be granted in the majority of cases. Exceptionally, however, this may not be possible, such as where some evidence is lacking or a defect in the title is apparent, so making it unsafe for HM Land Registry to guarantee the owner absolutely against the risk of some other person claiming a right in the land.

Prior to 19 June 2006, we did not grant absolute leasehold title if, on the registration of the lease:

• the applicant was unable to lodge a consent by a head-lessor if the lease to be registered was a sub-lease and the lessor’s own lease contained a limitation on alienation
• the lessor’s mortgagee had not consented to the grant of the lease

Our practice now is normally to grant absolute leasehold title where the requisite consent is not lodged but we make an entry in the register to reflect this fact.

2.2 Good leasehold

There are many applications to register leasehold estates where the title of the landlord to grant the lease that is being registered has not been produced to HM Land Registry. In such cases, we will not know if the landlord had the full and unrestricted power to make the grant or if any restrictive covenants or other incumbrances affect the property. So, provided that the title to the leasehold estate itself is satisfactory, we will grant good leasehold title.

Prior to 19 June 2006, good leasehold title was also granted where a superior lessor’s or mortgagee’s consent was not produced where this was required.

2.3 Possessory

Typically, possessory titles may be granted where the owner claims to have acquired the land by adverse possession. Alternatively, it may be where the owner cannot produce documentary evidence of title to an estate for some reason. These titles are rare.

2.4 Qualified

Qualified titles are granted where there is some specific defect that has been identified and this is stated in the register. These are even rarer than possessory titles.

3. Upgrading the class of title

3.1 Who may apply

Under section 62(7) of the Land Registration Act 2002 only the following are entitled to apply to upgrade an inferior class of title to a better one:

• the registered proprietor
• a person entitled to be registered as proprietor, such as personal representatives where the registered proprietor has died or someone who has just completed the purchase of a registered estate
• the proprietor of any registered charge affecting the estate
• a person interested in a registered estate that derives from the registered estate to be upgraded

3.2 When to apply

Apart from possessory titles referred to in Possessory titles after lapse of time, you can make an application to upgrade the class of title at any time after the land is first registered provided that you can satisfy HM Land Registry that the reasons for granting an inferior class of title have been remedied. Details of how to apply using form UT1 are given in How to apply.

3.2.1 Possessory titles after lapse of time

Where title to an estate in land is a possessory one, whether freehold or leasehold, you can apply to upgrade the title to either an absolute freehold or a good leasehold title once the possessory title has been registered for 12 years (section 62(4) and (5) of the Land Registration Act 2002).

The date on which the title was first registered is stated in the property register, taken as the date on which the first proprietor was registered.

Use panel 10(C) of form UT1 to tell us who is in physical possession of the property. Where this is not the registered proprietor, you must be able to demonstrate the applicant’s relationship with the person who is in possession that, for the purposes of section 131 of the Land Registration Act 2002, means they are to be treated as being in possession. An example would be where a landlord is the registered proprietor but his tenant actually occupies the property.

3.2.2 Possessory titles in other situations and qualified titles

You can apply at any time after registration to upgrade a possessory or qualified title in land, or a possessory or qualified rentcharge, by producing additional evidence of title to HM Land Registry that would remedy the reason why a possessory title or a qualified title was granted in the first place.

An example is where previously lost deeds have come to light.

3.2.3 Good leaseholds

You can apply to upgrade a good leasehold title to absolute leasehold if you can provide HM Land Registry with:

• the lessor’s title and, where they are not the freeholder, title to any other reversionary titles up to and including the freeholder
• the reversionary titles are registered with absolute title

Where good leasehold title was awarded before 19 June 2006 because the consent of the lessor’s mortgagee or the consent of the lessor’s own lessor to the granting of the lease had not been produced, you can apply to upgrade to absolute leasehold if you can produce the missing consent. Alternatively, and where the consent is still outstanding, you can apply to upgrade to absolute title if you enclose a covering letter with your application requesting the upgrade on the basis of current HM Land Registry practice. The following entry/entries will be made in the register where the consent(s) are not lodged:

• where the superior lessor’s consent has not been lodged:

“The registrar has not seen any consent to the grant of this sub-lease that the superior lease, out of which it was granted, may have required,”

and/or:

• where the consent of the lessor’s chargee has not been lodged:

“The title to the lease is, during the subsistence of the charge dated… in favour of… affecting the lessor’s title (and to the extent permitted by law, any charge replacing or varying this charge or any further charge in respect of all or part of the sum secured by this charge), subject to any rights that may have arisen by the absence of the chargee’s consent, unless the lease is authorised by section 99 of the Law of Property Act 1925.”

When registering a lease with good leasehold title in the past, HM Land Registry did not guarantee that any easements contained therein were validly granted. Therefore, the register for such a title would not reflect any limitations on those easements, were they required. When we receive an application to upgrade a good leasehold title to absolute we will, as a matter of course, investigate the easements and amend the register accordingly if we discover any easements that cannot be guaranteed (for instance, if a servient title does not contain a corresponding subjective entry in the register).

In order to subsequently guarantee a limited easement entry, we would require an application in form AP1 in respect of the ‘offending’ servient title(s), together with evidence of compliance with any restrictions which would otherwise prevent the easement being noted. If you have ascertained that a servient title is not subject to an easement referred to in the register of the title you are seeking to upgrade prior to lodging form UT1 (see How to apply), the AP1 application can be made at the same time as the application to upgrade. In either case, a fee is payable under Schedule 3, Part 1(1) and notice may have to be served on the registered proprietor(s) and/or the proprietor(s) of any registered charges.

3.3 How to apply

You must use form UT1 (rule 124 of the Land Registration Rules 2003). This is available from law stationers or you can download it from our website free of charge. Alternatively, you may produce it electronically for your own use provided you get approval from the Forms Unit at HM Land Registry Head Office.

Use panel 8 to tell us the class of title to which you are applying to upgrade. For example, with a possessory or qualified leasehold title you may wish us to consider upgrading it to good leasehold or, alternatively, if you can satisfy the requirements in Good leaseholds, to absolute leasehold. Possessory and qualified freeholds will always be considered for upgrade to absolute freehold.

You must tell us in panel 9 the capacity in which the applicant is applying to have the title upgraded. If the applicant is neither the registered proprietor nor a registered chargee, you must supply evidence of his entitlement to apply and this should accompany the application form. If the application is to have a possessory title upgraded on the grounds that 12 years have elapsed since first registration, you must complete panel 10 of the form.

Use panel 10 to indicate the basis of the application. For example, it may be that you are now able to lodge further evidence of title. Panel 10 does not contain an option for the upgrading of a possessory or qualified leasehold title based on further evidence of title. In such circumstances, applicants should use form CS to continue panel 10 as set out in the explanatory notes to form UT1.

Panel 11 is confirmation that no claim adverse to the title has been made by virtue of an estate, right or interest whose enforceability is preserved as a result of the existing entry about the class of title. If the form is signed by the applicant’s conveyancer, the “I confirm” in this confirmation can be replaced by “The applicant confirms”.

Remember to enclose any necessary documentary evidence and the fee payable based on the current Land Registration Fee Order.

4. Examination of evidence by HM Land Registry

Once the application is made we will examine the evidence lodged in support. If this is sufficient to remedy the reason why the inferior title was granted the title will be upgraded. It is particularly important to show title to any landlord’s title if the upgrade is to be to absolute leasehold. This also applies to the title of any superior landlord if the immediate landlord’s title is not registered with absolute title.

5. Possessory title registered before January 1909

When application is made to upgrade a possessory title that was originally registered before January 1909, a certified copy of the conveyance or assignment to the first registered proprietor should, if possible, be produced.

6. Fees

A fixed fee is normally payable for upgrade of class of title. However, no fee is payable if the application for upgrade:

• is accompanied by an application upon which a scale fee is payable
• contains a covering letter stating that it is made on the sole basis that good leasehold title was granted as the consent of the superior lessor and/or the lessor’s mortgagee were not lodged at the time of registration of the lease

If you do apply to upgrade the title at the same time as a scale fee application, form UT1 must accompany the application in addition to any form for that application. Enquiries as to the fees payable under the current Land Registration Fee Order may be made to Customer Support (see Contact details).

7. Things to remember

You need to:

• enclose the necessary evidence that might enable upgrade, such as title deeds
• enclose evidence of the applicant’s entitlement to apply where they are not the registered proprietor or the proprietor of a registered charge
• complete form UT1 for all parts that apply
• enclose the fee

Please note that HM Land Registry may be unable to process applications that are incomplete or defective and your application will risk losing its priority if we have to return it to you – see practice guide 49: return and rejection of applications for registration for more information.

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