Manchester Conveyancing Solicitors | Ford Banks Irwin Solicitors - The Property Lawyers in Manchester on Transfer of Deeds and Names on Title Deeds of any House / Apartment / Flat.
Please note: Not to be used or relied upon without legal advice. These notes are for illustration purposes ONLY
continued from page 19 . . .
Transfer of Deeds or Names on Title Deeds
Execution under a Power of Attorney
Individual delegation
(3) The words of signature may be expanded to:
John Smith by his Attorney Jane Cheshire who confirms that the donor has a beneficial interest in the Property at the date hereof.
The written statement can also be made separately as long as it is dated within three months of the date of the document.
If such a statement cannot be produced in any of these forms, Land Registry will consider other evidence that the donor had a beneficial interest at the relevant time. A statutory declaration or statement of truth to that effect by a responsible person with full knowledge of the facts may be acceptable in some cases.
The document will need to be executed by the donor of the power in the absence of sufficient evidence of the donor's beneficial entitlement.
Collective delegation
Section 9 Trusts of Land and Appointment of Trustees Act 1996:
All the Trustees of a trust of land may jointly delegate their functions to a beneficiary or beneficiaries of full age and beneficially entitled to an interest in possession. The delegation may be for any period or indefinite.
However, these beneficiary Attorneys are not treated as Trustees for the purposes of receiving capital money, which means that the Trustees themselves need to join in any disposition under which capital money arises if beneficial interests are to be overreached (section 9(7) Trustees of Land and Appointment of Trustees Act 1996). This type of power is only going to be appropriate, therefore, when no capital money is passing, eg on the grant of a Lease without payment of a premium.
Statutory protection is given to a third party who in good faith deals with an Attorney to whom trustee powers were delegated as beneficiary but who in fact was not a beneficiary to whom the trustee functions could be delegated. The Attorney is presumed to have been a person to whom the trustee functions could be delegated unless the third party had knowledge that they were not such a person (section 9(2) TLATA 1996). In consequence, where a beneficiary has executed a Deed under a Power of Attorney, Land Registry may require a statutory declaration or statement of truth from this third party to confirm that they acted in good faith and had no knowledge at the time of completion of the transaction that the Attorney was not a person to whom the functions of the trustees in relation to the Property could be delegated. Alternatively, the third party's Conveyancing Solicitors and Property Lawyers can provide a certificate to the effect that at the time of completion their client had no such knowledge (rule 63 Land Registration Rules 2003 and forms 2 and 3).
Section 11 Trustee Act 2000:
This section allows for the Trustees to "authorise any person to exercise any or all of their delegable functions as their agent". The delegable functions are all the Trustee's powers and duties other than:
(a) the distribution of trust assets,
(b) the power to allocate fees between capital or income;
(c) the power to appoint trustees or
(d) any power conferred by any other enactment or the trust instrument permitting delegation
The people who may act as agents include one or more of the trustees themselves, but do not include a beneficiary (even if the beneficiary is also a Trustee) (section 12 Trustee Act 2000).
Third parties who deal with these agents have the protection that a failure by the Trustees to act within the limits of the powers conferred by the section will not invalidate the authorisation (section 24 Trustee Act 2000).
Enduring Powers of Attorney
The Enduring Powers of Attorney Act 1985 was repealed by the Mental Capacity Act 2005. Enduring powers created before 1 October 2007 will continue to have effect but become subject to the provisions of schedule 4 Mental Capacity Act 2005. New Enduring Powers cannot be created after 30 September 2007. Those already created must be in one of the following prescribed forms according to the date of execution of the power and language used.
- The Enduring Powers of Attorney (Prescribed Form) Regulations 1986
- The Enduring Powers of Attorney (Prescribed Form) Regulation 1987
- The Enduring Powers of Attorney (Prescribed Form) Regulations 1990
(both in its original form and as amended by the Enduring Powers of Attorney (Prescribed Form) (Amendment) Regulations 2005).
- The Enduring Power of Attorney (Welsh Language Prescribed Form) Regulations 2000.
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
. . . continued on page 21 (Manchester Conveyancing Solicitors Property Lawyers on Transfer of Deeds or names on Deeds 21)
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