Under Rule 97 of the Land Registration Rules 2012, the consent of a person authorised to concur in the registration of a burden is to be given by written assent.
This assent may be given in the instrument creating the burden. Otherwise, it is to be given in Form 48 or included in the Form 17.
In the case of the creation of a lease (for instance in the case of a development of apartments), the assent to registration of the lease as a burden on the freehold folio will almost always be contained in the lease and practitioners will be familiar with this requirement.
However, there are circumstances where there may not have been compliance with the requirement and where the issue may not be so apparent.
Where the freehold title was not registered in the Land Registry at the time the lease was created, but is subsequently registered, then the question of whether the necessary assent to the registration of the lease as a burden on the freehold property was given might not arise until the leasehold property is assigned on a subsequent sale, which could be many years later. In those circumstances the PRA may well require an assent in Form 48.
The freehold may be held by the OMC, or in many cases by the original developer, and practitioners should be aware of the need, where the assent has not previously been made, for the freehold owner to execute an assent in Form 48 at the earliest stage possible, to avoid subsequent difficulties with registration.