Cross leases and mortgagee consents

When a new cross lease is presented for registration, it must be accompanied by the consent of every mortgagee of a share of the fee-simple estate affected by the cross lease.

This includes every fee simple share comprised in an existing cross lease record of title.

The same requirement, and the following comments, also applies to mortgagees of shares in a head lease when a leasehold estate is being cross leased.

The relevant provision is section 91(4) of the Land Transfer Act 2017 (LTA): “The consent of a registered mortgagee of an estate or interest in land to be leased must be obtained before registration of a lease instrument.” A cross lease involves all of the undivided shares in the fee simple estate. In a 'staged' development, where one or more flats have already been leased and are comprised in cross lease titles, a new cross lease affects the fee simple shares comprised in all of those cross lease titles as well as the 'balance' share titles. This is evident from the fact that all of the shareholding owners are lessors, and that the new cross lease will be noted against all of the titles issued for fee simple titles, including existing cross lease titles.

This approach mirrors the requirements of the previous Land Transfer Act 1952.

Last Updated: 12 November 2018