The authority of the freeholder comes from the deed, a legal document relating to the mortgage lenders interest in the property. It will confirm evidence of title (proof of ownership) of land (that may or may not have buildings on it) and create and confirm a binding obligation on someone.
The following information concerning errors found in deeds has been extracted from the Land Registry Practice Guide No 68.
If an error in a deed is discovered before registration then the parties to it can simply alter the deed provided such alterations are signed by all of them.
If the error is discovered during registration the parties may request the Land Registry temporarily returns the deed. The Land Registry will oblige in certain circumstances with a requisition requiring the deed to be amended by a deed of variation and countersigned by all parties and then returned.
However as any amendment to the Land Register needs to be by way of a registerable deed, it will be a little more extensive than the above two situations.
If an error is found within the deeds during the conveyancing process, such as an incorrect term for example, then the parties can amend the lease by a deed of variation which extends the term. A deed of surrender can be created by expressly surrendering the existing lease and creating a separate new lease of the same premises for the extended term. Or, the existing lease cen be kept and a further lease of the same premises granted for a term that begins on expiry of the existing lease and ends on the final day of the extended term.
Incorrect Registered Lease: Extent of the Premises
If a registered lease is incorrect as to the extent of the premises then the parties can amend the lease by reducing the extent of the premises: any deed purporting to reduce the extent of the land leased will be treated as a deed of surrender of the part that is not required.
If the extent of the premises needs to be increased it can be achieved in a number of ways. Again, any deed that purports to extend the premises is deemed to take effect as a surrender of the existing lease and as a grant of a new lease of the original land and the part being added to the demised premises.
In either of the above cases if the term is 7 years or less but more than 3 years then an application to note the new lease against the landlord’s title may be possible. Where the lease term granted is longer than 7 years then either the lease or the deed (whichever is used in the circumstances) must be drafted as a ‘prescribed clauses’ lease.
If the existing leasehold title is charged then it will be necessary to discharge this using form DS1 (cancellation of entries relating to a registered charge) and if necessary arrange for the tenant to execute a fresh charge in favour of the lender over the lease of the extended area.