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 15
Transfer of a Apartment / Flat / House
The form of a Restriction
Interests under trusts:
If the application by Conveyancing Solicitors and Property Lawyers was for a consent restriction such as form N, the Registrar would have to be satisfied that it was necessary or desirable (for one of the purposes in section 42(1) LRA 2002) for such a restriction to be entered. To allow a consent restriction to be entered (except for example when it was required under a Trust) would be to give the beneficiary a right they are not entitled to and could result, in practice, in thwarting the clear intention of sections 42(1)(b) and 44(1) LRA 2002 and section 2 and 27 Law of Property Act 1925 that overreaching should take place.
Where a form A restriction is considered insufficient to protect a beneficiary's interest under a trust of Land, they may also apply for a restriction in form II. A restriction in this form should ensure that the person named in the restriction receives notice of the disposition, thereby giving them the opportunity of pursuing the proceeds of sale.
If the beneficiary's consent is required under the terms of the trust, an application may be made for a form B restriction.
The interest of a person who is two or more steps away from a registered Property which is subject to a trust of Land is for the purpose of this guidance termed a 'derivative interest' and examples include:
- proprietors J and K hold on trust for L and M and M holds on trust for herself, (N and O will have derivative interests)
- proprietors P and Q hold on trust for R and S, and S holds on trust for T and U (T and U have derivative interests - here S does not hold on a bare trust)
- proprietors V and W hold on trust for X and Y and X Mortgages their interest to Z (Z has a derivative interest).
A person with a derivative interest may instruct Conveyancing Solicitors and Property Lawyers to apply for a form A restriction provided such a restriction has not already been entered in the Property Deeds.
It is difficult to see how an applicant with a derivative interest would be able to satisfy the Registrar that they have sufficient interest under section 42(1) LRA 2002 for any other form of restriction, for example a consent restriction to be entered. Generally, a person with a derivative interest will not be able to apply for a different form of restriction because:
- the holder of a derivative interest cannot apply under section 42(1)(a) Land Registration Act 2002 on the basis that the restriction might prevent the trustees from misapplying the proceeds of sale following a disposition which overreaches the beneficial interests, as subsection (1)(a) is concerned only with preventing unlawfulness or invalid dispositions of registered Properties and not with subsequent dealings with the proceeds of sale.
-a derivative interest is not a right or claim in relation to a registered Property or Mortgage within section 42(1)(c) LRA 2002 as it is a right or claim in relation to the beneficial interest under the trust of land (not in relation to the registered Property or Mortgage).
A person with the benefit of a charging order over a beneficial interest under a trust of land may instruct Conveyancing Solicitors and Property Lawyers to apply for a form K restriction, even though their interest is a derivative interest, because the provisions of section 42(4) LRA 2002 and rule 93(k) LRR 2003.
The Legal Services Commission, where it has a statutory charge over a beneficial interest under a trust of land, may apply for a restriction in form JJ.
Notifiable Applications:
Land Registry will notify the relevant proprietor before they complete an application for a restriction unless it is either:
- made by or with the consent of the relevant proprietor or someone entitled to be registered as such
- one of the compulsory applications listed in rule 94 Land Registration Rules 2003, or
- applied for to reflect a limitation under a Court Order or an Order of the Registrar (or an undertaking given in place of such an Order) (section 45 Land Registration act 2002).
The notice will give the relevant proprietor time to object to the application. If a dispute arises from an objection to an application made within that period and it cannot be resolved by agreement, it will be referred to the Adjudicator to HM Land Registry.
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
. . . continued on page 17 (Manchester Conveyancing Solicitors Property Lawyers on Transfer of Apartment / Flat / House 17)
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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