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Rights and registration
What types of holding right over real estate are acknowledged by law in your jurisdiction?
Freehold and leasehold are the two legal estates in England and Wales. A freehold is equivalent to absolute ownership and a leasehold is for a specified timeframe.
Commonhold is an alternative form of freehold ownership. However, it is rarely encountered in practice.
Are rights to land and buildings on the land legally separable?
No. Real estate includes land and buildings. It also includes the subsoil and airspace to the extent required for the ordinary use and enjoyment of the land.
Which parties may hold and exercise rights over real estate? Are there restrictions on foreign ownership of property?
Any individual or entity – provided that it has a legal personality – may hold and exercise rights over real estate. Entitlement to exercise such rights may arise by way of an express grant, by statutory implication or by prescription (ie, use over a long period).
There are no restrictions on foreign ownership of real estate in England and Wales.
How are rights, encumbrances and other interests over real estate prioritised?
Earlier rights generally have priority over later rights, except in circumstances where the priority of the earlier right must be protected at the Land Registry (registered land) or the Land Charges Department (unregistered land).
Must real estate rights, interests and transactions be registered in your jurisdiction? What are the legal effects of registration?
The majority of rights, interests and transactions must be registered or protected by notice at the Land Registry. The register is a conclusive record of the legal ownership of land.
What are the procedural and documentary requirements for entry into the national real estate register(s)? Can registration be completed electronically?
The correct application form must be completed, evidence of payment of stamp duty land tax enclosed where appropriate and the correct registration fee paid. Documentation evidencing the transaction must also be sent. Depending on the nature of the transaction and the parties involved, additional documentation may be required and in some cases identity evidence will be needed where a particular party is not legally represented. A number of Land Registry applications can now be submitted online through the Land Registry Portal. However, an e-conveyancing system which facilitates the simultaneous completion and registration of a transaction is not yet available.
What information is recorded in the national real estate register(s) and to what extent is such information publicly available?
Each registered title has its own unique title number and the register for each title is divided into the following three parts:
- Property register – this describes the extent of the title by reference to a registered plan and identifies any rights that benefit the land. It also indicates whether the land is freehold or leasehold and, if leasehold, gives brief details of the lease.
- Proprietorship register – this identifies the owner and gives details of any limits on the owner’s powers to deal with the land.
- Charges register – this gives details of any financial charges and other encumbrances affecting the title.
The Land Registry maintains a public register which can be inspected by anyone. It is possible to apply to the Land Registry to restrict access to certain information contained in registered documents on the basis that disclosure may be prejudicial to a party’s commercial interest. However, certain commercial information (eg, price paid) must always appear on the register.
Is there a state guarantee of title?
Yes, for land registered at the Land Registry. A statutory scheme operates to indemnify any party which suffers loss as a result of the rectification of the register to correct a registration mistake – save to the extent that the claimant has contributed to the loss through its own fraud or lack of proper care.
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