Lexsure e-ROT

Missing Title Deeds · Report on Title scenario

There is an unregistered headlease above my lease

Because your lease sits on top of it. A headlease is a superior lease between landlords, and your own lease depends on it continuing to exist. If the headlease were forfeited for a breach by your immediate landlord, your lease could in principle fall with it — a remote risk, and one with a real remedy, but not one to leave unaddressed.

From the e-ROT archive

This scenario is drawn from Report on Title material dealing with this specific circumstance.

Lexsure master Report on Title paragraph: Unregistered Headlease · See the wording

Which describes you?

I’ve already bought the property A superior landlord is threatening forfeiture. Check what this could mean →WhenIBought.com
I’m a conveyancer I need Report on Title wording for this situation. View professional options →

How a chain of leases works

A freeholder grants a long headlease; the headlessee grants individual flat leases out of it. Your immediate landlord is the headlessee, and their obligations to the freeholder are set out in the headlease — obligations similar in kind to the ones your lease imposes on you.

The dependency runs downwards. Everything below the headlease exists because the headlease exists.

The risk, stated accurately

If your immediate landlord breached the headlease, the superior landlord could seek to forfeit it, and your own lease could technically go with it. The honest framing is the one the Lexsure wording below uses: a minor risk, and a frightening and costly one if it ever materialised.

There is a remedy. A leaseholder in that position can apply to the court for relief against forfeiture, and relief is commonly granted to people who have done nothing wrong. It is expensive and it is not automatic.

The practical frequency of this is very low. That is why it is insured rather than investigated at length.

What “unregistered” adds

It adds blindness. A registered headlease can be inspected: its terms, its parties, whether it has been varied, whether anything is noted against it. An unregistered one cannot, and where the freehold is unregistered too, nobody can confirm whether the headlease has been merged into it.

So the conveyancer may have a copy of the headlease and still be unable to confirm its current status. That gap is what the forfeiture indemnity policy addresses.

Ask who is paying for the policy, and keep it. Ask also whether your immediate landlord is paying the headrent and complying with the headlease, because the risk is created by their conduct rather than by yours.

Already bought, and forfeiture has been threatened?

If a superior landlord is threatening to forfeit, what was reported to you about the headlease during the purchase is where the question starts.

From the e-ROT archive

Report on Title paragraph

Unregistered Headlease

Master precedent Lexsure e-ROTScope Forfeiture of a superior leaseWord count 120Status Current master paragraph

If there was a potential breach of the Headlease then the Superior Landlord could threaten to forfeit the Lease to your immediate Landlord and as such, technically it follows that your Lease could be forfeited. In other words, there is a minor risk that the Freeholder or Superior Landlord of this Property could take your Lease back. The reality is that in such circumstances you could apply to the Courts for what is known as “a relief against forfeiture”. This however is a costly exercise and, although we have never had a client experience this, it would inevitably be a most frightening experience ( as well as costly ) given that the risk is that you could lose your property. …

Master precedent wording. This is current Lexsure Report on Title material, shown here in extract and reproduced exactly, including the spacing inside the brackets. It is professional precedent wording addressed by a conveyancer to a client, and is not advice about any particular property.

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