Consent by a landlord

Leases often contain a clause prohibiting or restricting the power of the tenant to sub-let the demised land. This is commonly known as an 'alienation clause'. When this clause appears in a lease being registered, Land Registry makes the following entry in the Property Register of the tenant's title under rule 6(2) Land Registration Rules 2003:

"There are excepted from the effect of registration all estates, rights, interests, powers and remedies arising upon, or by reason of, any dealing made in breach of the prohibition or restriction against dealings therewith inter vivos contained in the Lease."

If the tenant later grants a sub-lease, Land Registry practice was to examine the head lease to see if a consent was required. If the necessary consent was not lodged only good leasehold title was granted to the sub-lease. This practice has now changed.

New practice from 19 June 2006

From 19 June 2006, the lack of a consent will not prevent the granting of absolute title.

This new practice is on the basis that the sub-lease is not prevented from being a legal lease simply because there has been a breach of the alienation clause, albeit that this breach is likely to make the sub-lease liable to determination through forfeiture of the head or superior lease.

The next page looks at how the new practice will be applied.