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 21
Transfer of a Apartment / Flat / House
Transitional Provisions
Inhibitions:
The provisions of the Land Registration Act 2002 that relate to restrictions also apply to inhibitions in the Property Deeds. Inhibitions are entries that prohibit dispositions from being entered in the Property Deeds and therefore are treated as restrictions for the purposes of the Land Registration Act 2002 (paragraph 2(2) of schedule 12, LRA 2002).
Cautions against dealings
The nature of a caution against dealings:
A caution against dealings is an entry in the Property Deeds in respect of a claim to an interest in a registered Property or Mortgage. Although no new cautions against dealings can be created after 13 October 2003, existing cautions will continue to have effect.
The general effect of the Land Registration Act 2002 is to preserve the nature and effect of existing cautions against dealings. This is achieved by providing that sections 55 and 56 Land Registration Act 1925 continue to have effect in relation to existing cautions (paragraph 2(3) of schedule 12 LRA 2002). Rules 218 to 223 Land Registration Rules 2003 make similar provisions for how cautions procedures will have effect to those in the Land Registration Rules 1925.
A caution does not confer any priority on the interest that it protects. However the person claiming the interest, 'the cautioner', is identified in the entry and is entitled to be notified before any entry is made in the Property Deeds that might prejudice their interest, thus giving them opportunity to object to the entry.
Cautions offer an unstable form of protection because they are liable to be cancelled whenever a dealing by the proprietor or a registrable disposition is entered in the Property Deeds. As with unilateral notices, cautions are also vulnerable to the relevant proprietor applying to cancel the caution and requiring the cautioner to prove their claim.
Notice served on the cautioner:
The Registrar will serve a notice on the Property Solicitors and Conveyancing Lawyers for the cautioner:
- before approving any application to process a registrable disposition which is not accompanied by the cautioner's consent;
- before approving any application to make any entry in the Property Deeds in respect of a dealing by the relevant proprietor which is not accompanied by the cautioner's consent, or
- where the relevant proprietor (or someone who is entitled to be registered as such) applies for cancellation of the caution.
An application by the relevant proprietor to cancel the caution should be made on form CCD. Property Solicitors and Conveyancing Lawyers should check the latest Land Registry Fee Order for the fees payable.
The notification will give the cautioner a set period (usually 15 business days) within which to respond. The caution will then be cancelled unless the Registrar makes an Order to the contrary.
Options open to the cautioner:
If the cautioner wishes the Registrar to make an Order permitting the caution to remain in the Property Deeds they may:
- object to the application by lodging a statement showing a fairly arguable case for the Registrar not to give effect to the application that generated the notice. The grounds of their objection might be that the application is defective in some way or that, even though the application appears to be in order, it would have the effect of postponing the priority of their interest, or
- consent to the application proceeding but request that their caution be entitled to remain in the Property Deeds.
The second option would only be available if the effect of the application would not wholly defeat the cautioner's interest. Where, for example, the application is to register a transfer for value that would postpone the cautioner's priority, or is for cancellation of the caution itself, the caution will not be allowed to remain.
A dispute about whether the application should proceed would be referred to the Adjudicator if it could not be resolved by agreement.
Withdrawal of a caution:
The cautioner or their personal representative may apply at any time to cancel a caution against dealings.
The application should be made in form WCT. Property Solicitors and Conveyancing Lawyers should check the current Fee Order for the fees payable.
A cautioner is not permitted to apply for a notice or a restriction in respect of the claim they have protected by caution unless they also apply to withdraw the caution (paragraph 17 of schedule 12 Land Registration act 2002).
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
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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