Follow the rules of registering deeds for the first time
Section 4(1)(a)(ii) of the Land Registry Act 2002 states that an Assent of land does invoke first registration of the title at Land Registry. Under Section 36(7) Administration of Estates Act 1925 an Assent is sufficient evidence of entitlement to the legal estate. However, Land Registry will require a copy of the will of your late relative and the Grant of Probate to be lodged with the first registration application.
Accordingly, the answer to your first question is yes. An Assent of the land needs to be prepared and signed by the executor of the estate in your favour and this will require registration of the title in your name at Land Registry.
While registration in this case is compulsory, it has many advantages:
Security of legal title ownership to the land
Protection against losing title by a person attempting to claim adverse possession
Introducing certainty and a more simple process to mortgage or sell the land
Setting out all rights benefiting the land and details of any restrictive covenants
Detailing the extent of the land by reference to a Land Registry title plan
Ordinarily, the cost of the Assent would be paid for out of the funds in the estate. However, the legal costs incurred to draft, complete and submit a complex first registration application should, in my view, be paid for the person taking the ownership of the land.
The second question relates to the application and missing documents. The appropriate class of title is determined by the quality of the documents supplied to Land Registry who will examine them under Sub Section 9(1) and 10(1) of the Land Registration Act 2002.
From your question, it would seem there are sufficient documents for Land Registry to assess and subsequently grant an absolute title.
However ,you state certain documents, known as conveyances, are missing and these contain “restrictive covenants”. If the land you inherited comprised say a 1930s’ semi-detached house, it is open to your conveyancer to obtain a copy of the title to an adjoining property which will undoubtedly contain similar restrictive covenants. However, from your description, such a course of action is not open to you.
Land Registry will be able to proceed with the registration but they will make a positive entry in the “Charges Register” of the title. This entry will state “the land is subject to such restrictive covenants as may have been imposed thereon before the date of first registration, so far as such covenants are subsisting and are capable of being enforced”.
Essentially this is not a major problem as at the point of mortgage or sale, your conveyancer will be able to offer unknown restrictive covenants indemnity insurance to the proposed lender or buyer.
John Robson is conveyancing manager at Ford & Warren Leeds.