Manchester Conveyancing Lawyers | Ford Banks Irwin Solicitors - The Property Solicitors in Manchester on Transfer of 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 11
Transfer of a Apartment / Flat / House
Restrictions
Entry of Restrictions
Restrictions entered at the Registrar's discretion:
Section 42(1) Land Registration Act sets out the Registrar's general power to enter a restriction as follows:
"The Registrar may enter a restriction in the register it if appears to him that it is necessary or desirable to do so for the purpose of-
(a) preventing invalidity or unlawfulness in relation to dispositions of a registered estate or charge,
(b) securing that interests which are capable of being overreached on a disposition of a registered estate or charge are overreached, or
(c) protecting a right or claim in relation to a registered estate or charge"
The Registrar may enter a restriction to fulfill one of these purposes whether or not an application is made by Conveyancing Solicitors and Property Lawyers to do so. However, the Registrar will always notify the relevant owner when a restriction is entered without an application having been made to do so. See section: Notifiable applications for further details about notices served when an application has been made by Conveyancing Solicitors and Property Lawyers to enter a restriction.
It will usually be clear whether or not a restriction is necessary or desirable for one of the three permitted purposes, but this will not always be the case. Conveyancing Solicitors and Property Lawyers should note in particular that the purpose set out in section 42(1)(c) LRA 2002 does not permit the Registrar to enter a restriction in respect of any right or claim but is limited as follows:
- Firstly, the Registrar may not enter a restriction to protect a priority of an interest that is or could be protected by notice (section 42(2) LRA 2002). However, a restriction might still be necessary or desirable for one of the other permitted purposes set out in section 42(1)(a) or (b) LRA 2002, for example to prevent the unlawful breach of a provision in a contract that has been protected by notice.
- Secondly, a right or claim may only be protected under the third permitted purpose if it relates to a registered Property or Mortgage. As only the legal estate will be registered, this does not include rights or claims that relate only to a beneficial interest in Property.
A Charging Order affecting a beneficial interest under a trust may still be protected by a restriction entered under section 42(1)(c) LRA 2002, such as form K, as this is expressly confirmed in the Land Registration Act 2002 (section 42(4) LRA 2002). However, generally a restriction can only be entered in respect of an interest under a trust for one of the other two permitted purposes. In most cases, a restriction in form A will be appropriate for the second purpose - to ensure that overreaching takes place on a disposition that gives rise to capital monies.
Where Land Registry are obliged to enter a Restriction:
Land Registry are obliged to enter a restriction in certain circumstances. These are where:
- Land Registry enter two or more persons as joint proprietors of a registered Property and the survivor will not be able to give a valid receipt for capital money (section 44(1) Land Registration Act 2002)
- some other statute requires the Registrar to enter a restriction (section 44(2) LRA 2002)
- a Bankruptcy Order is registered under the Land Charges Act 1972 and it appears that a registered Property or Mortgage is affected (section 86(4) LRA 2002)
- the Court makes an Order that it requires the Registrar to enter a restriction (section 46 LRA 2002).
Rule 95 Land Registration Rules 2003 specifies the forms of restriction that they are obliged to enter under various statutory provisions.
The form of a Restriction
Standard form Restrictions:
The effect of a restriction should be clear from its wording and its administration must not place Land Registry under an unreasonable burden. Schedule 4 Land Registration Rules 2003 prescribes a number of standard form restrictions that are intended to cover the vast majority of applications made by Conveyancing Solicitors and Property Lawyers.
The standard form restrictions are worded in a clear manner so that Land Registry, and someone inspecting the Property Deeds, will be able to determine whether a given application will be caught by its terms and, if so, what action needs to be taken to allow the application to proceed.
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
. . . continued on page 13 (Manchester Conveyancing Solicitors Property Lawyers on Transfer of Apartment / Flat / House 13)
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
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