PP 2009/73

The Companies Act 2006 was fully implemented on 1 October. It has been comprehensively overhauled and conveyancers should be aware of the changes it has made and those have been introduced to complement it. Changes to documents Statutory references in documents will need to be updated. For example, leases often include alienation provisions that refer to group companies, which are defined by reference to the Companies Act 1985. Such references will need to reflect the 2006 Act or, alternatively, to refer to section 42 of the Landlord and Tenant Act 1954. If a document slips through the net, section 1297 of the 2006 Act may assist. It provides that references to the repealed provisions of the Companies Act 1985 in enactments, instruments or documents are to be construed as including references to the corresponding new provision of the 2006 Act.  Changes to Companies House and Land Registry forms Wholesale changes have been made to all Companies House forms. Changes have also been made to Land Registry forms and prescribed lease clauses, to cater for the establishment of a single UK-wide register for overseas companies with an office in the UK. Conveyancers must use the new forms when dealing with overseas companies. However, the Land Registry will continue to accept old versions after 1 October unless the application for which they are used involves an overseas company: see the Land Registration (Amendment) Rules 2009. Execution of deeds and documents The Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009 apply sections 44 (execution of documents) and 46 (execution of deeds) of the 2006 Act, in modified form, to overseas companies. In addition, the Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009 provided for a single member of an LLP to execute on its behalf in the presence of a witness. The 2009 Rules include provisions to implement this change at the Land Registry. Registration of charges created by English companies The 2006 Act replaces sections 395 to 409 of the 1985 Act with new provisions dealing with the registration of company charges. These are set out in sections 860 to 887 of the 2006 Act and broadly reflect the previous law. Registration of charges created by overseas companies The Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009 introduce a new regime for overseas companies that are registered at Companies House and create charges on property in the UK. The regime closely follows that applying to English companies and obviates the need to register charges created by certain foreign companies in a separate register, which was established and became known as the Slavenburg register after the decision in Slavenburg’s Bank NV v Intercontinental Natural Resources [1980] 1 WLR 1076. Complementary changes made by the 2009 Rules ensure that applications to the Land Registry to register charges created by foreign companies are accompanied by evidence that the charge has been registered with the Registrar of Companies (or include a statement that the charge did not require registration), failing which the Land Registry will enter a cautionary note on the register.  Commonhold associations The Commonhold (Land Registration)(Amendment) Rules 2009 provide for changes to the constitutional documents used by commonhold associations that were necessitated by the 2006 Act. For a useful guide to the changes that apply to company constitutions, see Companies Act 2006 final implementation: a summary of what the approach means. Allyson Colby is a property law consultant