Manchester Conveyancing Solicitors | Ford Banks Irwin Solicitors

Manchester Conveyancing Solicitors | Ford Banks Irwin Solicitors - The Property Lawyers in Manchester on Transfer, Equity and Trusts of Land

Please note: Not to be used or relied upon without legal advice. These notes are for illustrative purposes ONLY.

. . . continued from page 5

Private Trusts of Land / Property

Standard Form Restrictions:

The form B restriction - where the trustees powers are limited:

Its Purpose and Wording:
The wording of this restriction is as follow (form B Schedule 4 Land Registration Act 2003):

'No disposition [or specify details] by the proprietors of the registered estate is to be registered unless one ore more of them makes a statutory declaration or statement of truth, or their conveyancer gives a certificate, that the disposition [or specify details] is in accordance with [specify the disposition creating the trust] or some variation thereof referred to in the declaration, statement or certificate'.

The general rule for Property Lawyers and Conveyancing Solicitors is that, for the purpose of exercising their functions as trustees, trustees of Land have all the powers of an absolute owner. However, under section 8 Trusts of Land and Appointment of Trustees Act, a disposition creating a trust of Land / Property can contain provisions limiting a trustees powers. Any such limitation needs to be reflected by a restriction on the register (Property Title Deeds) in order to protect the rights of the beneficiaries. In the absence of a restriction, Land Registry states Property Lawyers and Conveyancing Solicitors for a Purchaser of a registered estate from the trustees will not need to check whether any necessary consent has been obtained, or that any limitation on the trustees powers of disposition has been complied with. The purchaser's title cannot be questioned even if the trustees exceeded their powers in making the disposition (section 26 Land Registration Act 2002).

When must trustees apply for a Form B restriction?

Trustees should instruct Property Lawyers and Conveyancing Solicitors to apply for a Form B restriction in the following circumstances (rule 94(4) and (5) Land Registration Rules 2003):
- in respect of a registered estate, when a declaration of trust imposes limitations on the powers of the trustees under section 8 TLATA;
- also in respect of a registered estate, when a change in the trusts on which it is held imposes limitations on the powers of the trustees under section 8 TLATA
- on an application for first registration of a legal estate held on trust of Land, when the powers of the trustees are limited by section 8 TLATA.

This applies not only when the legal estate is held by trustees, but also when it is held by the personal representatives of a sole or last surviving trustee (rule 94(7) Land Registration Rules 2003).

An application by Property Lawyers and Conveyancing Solicitors for one of two or more trustees satisfies the requirement to apply, although such an application should be made as an application by a person with sufficient interest in the making of the entry and be accompanied by evidence of that interest.

Where a form A restriction is required, it will be needed as well as the Form B restriction.

When may a beneficiary apply for a Form B restriction?

Where a registered estate is held on a trust of Land, and the powers of the trustees are limited by section 8 TLATA, any person interested in the estate can instruct Property Lawyers and Conveyancing Solicitors to apply for a Form B restriction. Unless the consent of the registered proprietors accompanies the application, the Registrar will have to serve notice of the application on them. The notice will give them 15 business days in which to object.

What wording should be used for a Form B restriction?

In many cases, the limitation on the trustees powers will not apply to all dispositions, but only those of a certain kind. In such cases, the word 'disposition' may be replaced with 'transfer', 'Lease' or 'charge' (mortgage). It should not however be replaced with a more complicated provision, for example 'Lease for a term of more than 21 years'. (rule 91A(8) Land Registration Rules 2003).

Property Lawyers and Conveyancing Solicitors should not specify the nature of the consents required, or any similarly complex provision in the restriction. The restriction contains the qualifying words 'unless one or more of them makes a statutory declaration or statement of truth, or their conveyancer gives a certificate, that the disposition [or specify type of disposition] is in accordance with . . .' The purpose of this is to allow the restriction to reflect the terms of the disposition creating the trust without requiring the Registrar to consider those terms or whether they have been complied with.

The normal way of complying with the restriction will be to supply a certificate by the proprietors' Property Lawyers and Conveyancing Solicitors. A statutory declaration or statement of truth will only be needed if the Conveyancer is unwilling to give a certificate for any reason or if no Conveyancer is acting.

(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)

. . continued on page 7 (Property Lawyers and Conveyancing Solicitors in Manchester - Transfer, Equity and Trusts of Land page 7)

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