The Land Registration Act 2002 (Transitional Provisions) Order 2003

Mortgage cautions

16.—(1) Subject to this article, mortgage cautions and sub-mortgage cautions entered in the register shall continue to have the same effect after commencement as they had immediately before commencement.

(2) Subject to paragraphs (3) and (4), the registrar must cancel a mortgage caution or a sub-mortgage caution where—

(a) the cautioner, or some other person who can satisfy the registrar that he is entitled to the benefit of the protected mortgage or protected sub-mortgage, makes an application to withdraw it in Form WCT in Schedule 1 to the 2003 Rules, or

(b) evidence is produced that satisfies the registrar, that the protected mortgage or protected sub-mortgage has been discharged, or

(c) an application is made to register the protected mortgage, and any protected sub-mortgage, under section 27 of the Act and the registrar approves the application.

(3) Where there is a sub-mortgage caution entered in the register and application is made to cancel the relevant mortgage caution under sub-paragraph (a) or (b) of paragraph (2), the registrar must give notice of the application to the sub-mortgage cautioner.

(4) An application to register a protected mortgage under section 27(2)(f) of the Act must comply with the 2003 Rules and be accompanied by—

(a) the original deed creating the protected mortgage, and

(b) where title to the protected mortgage is vested in someone other than the cautioner, the documents proving devolution of title to the applicant.

(5) When registering a protected mortgage, the registrar must make an entry showing that it has priority in relation to other entries in the register from the date that the mortgage caution was entered in the register.

(6) Where application is made to register a disposition of the registered estate or registered charge affected by a mortgage caution or sub-mortgage caution, the registrar must—

(a) give notice of the application to the cautioner,

(b) retain the mortgage caution or sub-mortgage caution in the register unless it is to be cancelled in accordance with paragraph (2).

(7) In this article—

“cautioner” means the person named in a mortgage caution or sub-mortgage caution,

“mortgage caution” means a caution entered in the register in a specially prescribed form under section 106 of the 1925 Act as originally enacted(1),

“protected mortgage” means the mortgage that is protected by a mortgage caution,

“protected sub-mortgage” means the sub-mortgage that is protected by a sub-mortgage caution,

“sub-mortgage caution” means a sub-mortgage caution to which rule 228 of the 1925 Rules applied before commencement.

(1)

Section 106 of the Land Registration Act 1925 was substituted by a new provision from 29 August 1977 by section 26(1) of the Administration of Justice Act 1977 (1977 c. 38).