Manchester Conveyancing Solicitors | Ford Banks Irwin Solicitors - The Property Lawyers in Manchester for Buying / Selling Leases and Business Premises
Please note: Not to be used or relied upon without legal advice. These notes are for illustration purposes ONLY
continued from page 12 . . .
Buying and Selling Leases
Bulk applications affecting one or more Land Registry Office
Types of Power of Attorney
Lasting Powers
If a Lasting power has been registered but not lasting was, in fact, created, a transaction between the donee and another person is, in favour of that person, as valid as if the power had existed, unless at the time of the transaction that other person knew that a lasting power was not created or was aware of the circumstances that would have terminated the donee's authority to act had a lasting power been created (section 14(3) Mental Capacity Act 2005).
There is a conclusive presumption in favour of a purchaser whose interest depends on whether that transaction was valid by virtue of that section that the transaction was valid if either:
- the transaction was completed within 12 months of registration of the power, or
- the purchaser makes a statutory declaration, before or within three months after the completion of the purchase, that he or she had no reason at the time of the transaction to doubt that the donee had authority to dispose of the Property that was the subject of the transaction (section 14(4) Mental Capacity Act 2005). For Land registration purposes under rule 62 Land Registration Act 2003, a statutory declaration or a statement of truth to this effect may be in form 2 of schedule 3 to LRR 2003.
Joint Proprietors - receipts for capital money
For dispositions dated after 29 February 2000 section 7 Trustee Delegation Act 1999 provides that a receipt for capital money will overreach beneficial interests only if an Attorney acts with at least one other person. This means that a receipt clause in a disposition by joint proprietors is not acceptable if it is signed only by one person both as proprietor and as Attorney for the other proprietor(s). Nor is it acceptable for one person to sign as Attorney for all the proprietors.
If such a document is lodged Land Registry will return it to the Conveyancing Solicitors and Property Lawyers for execution by the donor of the power. The donor of a lasting or enduring power of Attorney will not be able to execute a document if he or she lacks capacity. (In these circumstances the document may, of course, be executed by another Attorney if one has been appointed jointly and severally).
If the document is not re-executed it will be necessary to protect any beneficial interests that may still subsist. Land Registry will therefore enter on the register a restriction on dispositions by a sole proprietor in form A of schedule 4 Land Registration Rules 2003.
Joint Proprietors - evidence that the donor of a power had a beneficial interest
All joint proprietors hold the registered legal estate as trustees. A general enduring or lasting power of Attorney dated after 29 February 2000 may be used in relation to trust Property if, at the time it is used, the donor of the power owns a beneficial interest in that Property unless contrary intention is shown in the power (section 1(1) Trustee Delegation Act 1999).
A written statement by the Attorney given within three months of the date of the document confirming that the donor had a beneficial interest in the Property is, in favour of a Purchaser, conclusive evidence that the power could be used (section 2(2) Trustee Delegation Act.
The most convenient place for the Attorney to make this written statement will be in the disposition itself. The Attorney may:
- include a statement on the following lines in the additional provisions panel of a TR1 or other prescribed form, or in the body of a Lease or Mortgage (Charge):
(Name of Attorney) confirms that (donor of the power) has a beneficial interest in the Property at the date of this (transfer, charge etc.)
OR
- adapt the attestation clause as follows:
Signed as a Deed by (name of donor of the power), who has a beneficial interest in the Property at the date of this (transfer, charge etc.), acting by (his/her) Attorney (name of Attorney) in the presence of:
OR
- expand the words of signature as follow:
John Smith by his Attorney Jane Brown who confirms that the donor has a beneficial interest in the Property at the date hereof.
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
. . . continued on page 14 (Manchester Conveyancing Solicitors Property Lawyers for Buying and Selling Leases 14)
Please telephone Paul on 0161 866 8999 if you require any further information.
Ford Banks Irwin Solicitors
50 Stothard Road
Stretford
Manchester
M32 9HB
Tel: 0161 866 8999
Fax: 0161 866 8333
E-mail: info@FordBanksIrwinSolicitors.co.uk
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