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Disclosable Overriding Interests questionnaire (version 2)
Practical Law UK Standard Document 9-501-8986 (Approx. 9 pages)
Disclosable Overriding Interests questionnaire (version 2)
| Law stated as at 02 Jun 2010 • , England, Wales |
Use of this document is free, subject to the Conditions inGN/CPSE (version 3.3).
This document is a questionnaire to assist with completion of Land Registry Form DI - disclosable overriding interests.
This document is part of the Commercial Property Standard Enquiries (CPSE) suite of documents, prepared by members of the Property Support Lawyers Group and endorsed by the British Property Federation.
For more information about the CPSE see GN/CPSE (version 3.3).
The Disclosable Overriding Interests questionnaire is available in three formats:
·The web format incorporates guidance notes, which can be viewed or printed with, or separately from, the questions (see the Actions pane in the top right hand corner of the screen).
·The Word format can be accessed using the Word link in the Actions pane in the top right hand corner of the screen. The Word format allows a user to insert replies to the questions.
·The PDF format can be accessed from the link below.
If you have any comments, please e-mail [email protected].
For the PDF version of this document click here.
For the Word version of this document click here.
Using this document
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Conditions
This document may be used free of charge subject to the Conditions set out in GN/CPSE (version 3.3) Guidance notes on the Commercial Property Standard Enquiries.
Disclosable overriding interests questionnaire
Close Drafting Note
Disclosable overriding interests questionnaire
Under the Land Registration Act 2002, the applicant must disclose on Form DI (with certain specified exceptions) any unregistered interests that override first registration or registered dispositions that are within the actual knowledge of the applicant, when making an application for first registration or an application for registration of a registrable disposition of a registered estate (which includes the grant of a lease out of a registered title). Such interests are referred to as "disclosable overriding interests".
Land Registry Practice Guide 15 explains in paragraph 4.1 that, under the Land Registration Rules 2003:
- It is the actual knowledge of the applicant applying for registration that is relevant.
- There is no need to carry out any special investigation, although the conveyancer might need to explain to the client what interests should be disclosed. The questionnaire has been drawn up to assist with this task.
There appears to be no sanction within the Land Registration Act 2002 for failure to disclose overriding interests in Form DI. The interests remain overriding interests. The Law Commission dealt with this issue in paragraph 8.91 of Law Com 271:
"There will be no direct sanction for this obligation, at least when the [Land Registration Act 2002] is first introduced. However, when electronic conveyancing becomes operative, those solicitors and licensed solicitors who enter into network access agreements with the registrar are likely to be required to ensure compliance with this obligation under the network transaction rules."
It is, however, possible that the applicants who fail to disclose disclosable overriding interests of which they are aware may be subject to other sanctions, including perhaps the loss of the right to indemnity in certain circumstances.
The questionaire can be used either on the purchase of freehold or leasehold property, or on the grant of a new lease.
In most cases, the applicant's solicitor will obtain details of any disclosable overriding interests as part of the title investigation, or in replies to enquiries. There will be occasions, however, when this will not be the case, such as:
- When a full title investigation is not being made (on a gift, for example, or a remortgage).
- Where the applicant is already in occupation of the property and knows more about the property than the owner does.
- On property transactions that form part of corporate transactions.
- On sale and leaseback transactions.
- On occasions where the applicant has particular local knowledge about the property.
In such cases it will be particularly important to ensure that the applicant discloses any disclosable overriding interests using Form DI.
The questionnaire asks the applicant to disclose any rights that affect the property of which they are aware. It is for the applicant's solicitor to decide which (if any) of them are disclosable overriding interests that need to be entered onto Form DI. If there is any doubt whether or not an interest overrides and needs to be disclosed, it would appear appropriate to disclose it and let the registrar decide whether an entry is needed. If, on the other hand, there is doubt about whether the interest exists at all, the position should be explained in a covering letter so that the registrar can make an informed decision as to whether it should be noted on the register.
The following list of interests that have to be disclosed has been prepared with the assistance of the Land Registry. There is no requirement to disclose:
- Any interests that in the Land Registry's list of interests are specifically excluded.
- Any interests that are disclosed in the deeds lodged with an application for first registration.
Differences between interests affecting first registrations and registered dispositions are indicated by use of italic type.
Unregistered interests that override first registrations and need to be disclosed | Unregistered interests that override registered dispositions and need to be disclosed |
1. Leases granted for 7 years or less. Excluding: Leases for a term not exceeding 7 years with 1 year or less unexpired. Leases granted for 3 years or less and are not required to be registered. Leases coming into effect more than 3 months from date of grant. Right to Buy leases. Preserved Right to Buy leases. Interests under PPP leases. Note: Leases for a term of 21 years or less that were overriding interests as at 12 October 2003 are overriding under the transitional provisions and should also be disclosed, provided that more than 1 year of the term is unexpired. | 1. Leases granted for 7 years or less. Excluding: Leases for a term not exceeding 7 years with 1 year or less unexpired. Leases granted for 3 years or less and are not required to be registered. Leases coming into effect more than 3 months from date of grant. Right to Buy leases. Preserved Right to Buy leases. Interests under PPP leases. Discontinuous leases (of any term) granted out of registered estates. Leases (of any term) of registered manors or franchises. Note: Leases for a term of 21 years or less that were overriding interests as at 12 October 2003 are overriding under the transitional provisions and should also be disclosed, provided that more than 1 year of the term is unexpired. |
2. The interests of persons in actual occupation (but only in respect of the land that such person is in actual occupation of). Excluding: An interest under a Settled Land Act 1925 settlement. An interest under a trust of land. Any of the leases that are excluded under item 1 above. | 2. The interests of persons in actual occupation (but only in respect of the land that such person is in actual occupation of) including the interests of a person who has been continuously in receipt of rents and profits since before 13 October 2003 whose interest would have been overriding under LRA 1925. Excluding: An interest under a Settled Land Act 1925 settlement. An interest under a trust of land. Any of the leases that are excluded under item 1 above. The interests of a person who failed to disclose the right when enquiry was made of him/her when s/he reasonably could have been expected to do so. The interests of a person whose occupation was not obvious on a reasonably careful inspection and which the applicant did not know about at the time of the disposition to him/her. A leasehold estate in land granted to take effect in possession more than 3 months from date of grant and which has not taken effect in possession at the time of the disposition. |
3. Legal easements and profits. Excluding: Interests capable of being registered under the Commons Registration Act 1965. | 3. Easements and profits including equitable easements and profits that were overriding as at 12 October 2003. Excluding: Interests capable of being registered under the Commons Registration Act 1965. Any easement not protected by entry on the register unless it was: within the actual knowledge of the person to whom the disposition was made or obvious on a reasonably careful inspection or has been exercised within 1 year prior to the disposition, or an overriding interest before 13 October 2003. Note: for 3 years from 13 October 2003 any legal easement, grant or reservation will override. |
4. Customary rights. Excluding: Interests capable of being registered under the Commons Registration Act 1965. | 4. Customary rights. Excluding: Interests capable of being registered under the Commons Registration Act 1965. |
5. Mines and minerals. Only certain rights affecting pre-1926 registered titles. | 5. Mines and minerals. Only certain rights affecting pre-1926 registered titles. |
6. Franchises etc. Until 13 October 2013 only: Franchises. Manorial rights. Certain rights to rent reserved to the Crown. Non statutory rights in respect of embankments and sea / river walls. Right to payment in lieu of tithe. Chancel repair liability. | 6. Franchises etc. Until 13 October 2013 only: Franchises. Manorial rights. Certain rights to rent reserved to the Crown. Non statutory rights in respect of embankments and sea / river walls. Right to payment in lieu of tithe. Chancel repair liability. |
7. Squatters’ rights. Rights under the Limitation Act 1980 as at 13 October 2003: Until 12 October 2006 – must disclose. After 12 October 2006 – must still disclose if squatter is in occupation or has continued to be in receipt of rents and profits since before 13 October 2003. | 7. Squatters’ rights. Rights under section 75 of the Land Registration Act 1925 and paragraph 18 of Schedule 12 to the Land Registration Act 2002: Until 12 October 2006 – must disclose. After 12 October 2006 – must still disclose if squatter is in occupation subject to qualifications under paragraph 2 of Schedule 3. |
Under the Land Registration Act 2002, you must disclose to the Land Registry certain unregistered rights or interests that affect the property ("Unregistered Rights") of which you are aware. These must be listed in the application form that we shall be submitting on your behalf to the Land Registry. The Land Registry may note these Unregistered Rights against your title.
Please tell us of any of the following Unregistered Rights of which you are aware, other than any that we have already told you about from the information that we have about the property. You also need to tell us about any Unregistered Rights of which you become aware between now and the date when the application to the Land Registry is made shortly after completion.
The Unregistered Rights that need to be disclosed are:
Rights and interests that are frequently encountered
- Leases affecting the property.
- Rights claimed by any people in actual occupation of the property.
- Rights of way across the property (other than public rights of way).
- Pipes, wires or cables crossing the property, whether on the surface, below it or at high level.
- Rights of light.
- Rights of support from adjoining properties.
Rights and interests that are very rarely encountered (but still need to be disclosed)
- Other people's rights to take things from the land (such as timber, hay or fish).
- Customary rights (rights deriving from local traditions).
- Other people's rights to mines and minerals under the land.
- Franchises (such as the right to hold a fair).
- Manorial rights.
- A right to rent which was reserved to the Crown on the granting of a freehold estate.
- Any rights relating to embankments or sea or river walls.
- Any rights to payments in lieu of tithe (usually called corn rents).
- Chancel repair liability.
Please complete and return to us the form below to enable us to complete the necessary Land Registry application form. If you are uncertain as to whether any Unregistered Rights exist or need to be disclosed, please speak to us before completing and returning the form.
Name of applicant | |
Property |
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(If there is not enough space here, please continue on a separate sheet of paper) |
Signed | |
Date |