Manchester Conveyancing Lawyers | Ford Banks Irwin Solicitors - The Property Solicitors in Manchester on Fees for Buying / Selling a House / Flat / Apartment.
Please note: Not to be used or relied upon without legal advice. These notes are for illustration purposes ONLY
. . . continued from page 7
Transfer / Buying a House / Apartment / Flat
Protection of Third Party Interests
Prevention of Fraud
Where it is believed that there may be an attempted fraudulent disposition, application may be made for entry of a restriction in form LL. This provides protection against forgery by requiring a Solicitor to certify that they are satisfied that the person who executed the document submitted for registration as disponer is the same person as the proprietor.
Where application is not made by or with the consent of either a sole registered proprietor or one of two or more registered proprietors, evidence should be lodged as to the applicant's entitlement to apply under section 43(c) Land Registration Act 2002.
Where application to enter the restriction is made by one of two or more registered proprietors, notice of the application will be served on the other proprietor(s).
Charges under section 22 of the Health and Social Services and Social Security Adjudications Act 1983 ('the 1983 Act')
A Local Authority which has provided a person ('the resident') with Part III accommodation (broadly speaking, accommodation in a care home) may recover charges assessed as due for it by creating a charge under section 22 of the 1983 Act on the interest which the resident holds in any one parcel of land. It does so by making a written declaration to that effect.
Where the resident is the sole beneficial owner of the Property charged, the charge will take effect as a charge of the legal estate and, where the estate is registered, may be registered as a registered charge, or noted under section 32 Land Registration Act 2002. If Property Solicitors and Conveyancing Lawyers for the Local Authority are applying for an agreed notice they should lodge form AN1 and the declaration of charge or a certified copy of it. Additionally a statement, either in the charge itself or in an accompanying letter, that the authority has made no declaration in relation to any other parcel of land in which the resident has a beneficial interest should be provided. If applying for a unilateral notice Land Registry require a form UN1 setting out in the statement in panel 11 or a Solicitor's certificate in panel 12 details of the charge, including the date, the name of the person whose interest is charged, the Property charged and confirmation that no declaration has been made in respect of other land.
Where the resident is a joint owner, the charge affects only his or her beneficial interest, not the registered legal estate.
A charge on the beneficial interest of an equitable tenant in common is a derivative interest. For various reasons the only restriction that the Local Authority can apply for in this case is a restriction in form A to secure that the interest is overreached. If (as will usually be the case where the proprietors are beneficial tenants in common) there is already a form A restriction in the Property Deeds, the Local Authority's interest is already protected and no further application seems to be possible.
Where the resident is an equitable joint tenant, section 22(5) and 22(6) of the 1983 Act make specific provision as to what happens. Normally, a charge on the beneficial interest of one joint tenant would automatically sever the joint tenancy. However, section 22(5) provides that the joint tenancy is not severed, but the charge will be for an amount not exceeding the value of the interest which the resident would enjoy if the tenancy were severed. Section 22(6) explains what happens when the resident dies. The interest of the surviving joint tenant or tenants becomes subject to a charge for an amount not exceeding the amount of the charge on the resident's former interest.
Where it takes a charge under section 22 of the 1983 Act on the interest of a beneficial joint tenant, therefore, a local authority may apply for a restriction in form MM. The restriction only affects dispositions made after the resident has died or has become a sole proprietor. Before then, joint proprietors can freely dispose of the Property, overreaching the beneficial interests, including the local authority's charge. The restriction allows for three possibilities:
- if there is more than one surviving joint proprietor on the death of the resident, they can overreach the local authority's interest in the usual way;
- if there is a sole surviving proprietor, the charge would now appear to attach to the legal estate vested in that proprietor, so that it can be noted or registered.
- it may be possible to show that no charge under section 22 is subsisting.
Application for a restriction should be made by Property Solicitors and Conveyancing Lawyers in form RX1. The application should be accompanied by a certified copy of the declaration of charge. The statement in panel 12 or form RX1 or Solicitor's certificate in panel 13 should be completed, setting out details of the charge. It should be confirmed that no such declaration has been made in respect of the resident's interest in any other parcel of land.
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
. . . continued on page 9 (Manchester Conveyancing Solicitors Property Lawyers on Fees for Buying / Transfer of Apartment / Flat / House 9)
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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