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Property Lawyers and Conveyancing Solicitors in Manchester City Centre for Transfer of Public Sector Housing Estates

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

Transfers of Public Sector Housing Estates

. . . continued from page 11

The Preserved Right to Buy:
The required restriction:

The statements required in the instrument referred to in the sub-heading: The disposal subject to preserved rights to buy are required so that the Land Registry can identify the transaction. The Land Registry is under a duty to enter a restriction on the register (Property Title Deeds) against any proprietor who becomes registered as a result of the instrument submitted by Property Lawyers and Conveyancing Solicitors. That proprietor cannot dispose (e.g. sale, transfer) of less than his whole interest without the consent of the Secretary of State or National Assembly for Wales, unless it is to a qualifying person or persons. A disposal (e.g. sale, transfer) without consent is void except where the Land Registry has failed to make an entry on the register (Property Title Deeds) reflecting the preserved right to buy. Suppose for example, that number 1 Manchester Road was listed in the schedule in the instrument but the Land Registry failed to include it in the register entry, so that it was included in a mortgage entered into without the consent of the Secretary of State or National Assembly for Wales. The Tenant would then be in danger of losing his preserved right to buy, as it is not an overriding interest and will be postponed to a registrable disposition made for valuable consideration. The qualifying tenant would be entitled to indemnity from the Land Registry for the loss caused by the failure of the Land Registry to perform its statutory duties. If, on the other hand, the original vendor (e.g. local authorities such as Manchester, Bury, Trafford, Salford, Stockport) failed to list number 1 Manchester Road as it was not known to be subject to the right to buy then an action for breach of statutory duty will lie against it. Finally, if a Property is listed erroneously and a person suffers loss as a result of the Land Registry making an entry, the Land Registry is entitled to be indemnified for such loss if it has to pay it in the first place. The restriction in the Proprietorship Register (Property Title Deeds) is as follows in form W:

'No disposition (except a transfer) of a qualifying dwellinghouse (except to a qualifying person or persons) is to be registered without the consent of the Secretary of State given under section 171D(2) of the Housing Act 1985 as it applies by virtue of the Housing (Preservation of Right to Buy) Regulations 1993'

Since it may not be clear to the Land Registry on a disposition by way of Lease whether or not the applicant Lessee is a qualifying person, a requisition may be avoided if the Property Lawyers and Conveyancing Solicitors make it clear in the Lease that the applicant is such a person. In all other cases (apart from transfers, which are not covered by the restriction) a consent will be required.

Previous forms of this restriction did not make it clear that a transfer of the Landlord's whole interest did not need this consent. Any such restriction will now be read by Property Lawyers and Conveyancing Solicitors as if this was the case.

A Mortgage by the new Landlord:
A mortgage by a proprietor will be a disposition for which consent will be needed if it includes any houses subject to the preserved right to buy. The creation of a mortgage is not an exempt disposal and, since it is clearly not a disposal of the entire interest of the new Landlord, it is caught by the requirement of consent.

Change of entries relating to the preserved right to buy:
The entries relating to the preserved right to buy will not be entirely static. The new Landlord has the right to move Tenants, with their consent, around its estate / development or indeed to any other house that it may own. In this case, the preserved right to buy goes with the Tenant.

The Landlord has a duty to apply to the Land Registry to enter notice of the Tenant's rights and for a restriction in for W whenever:
- the house is entirely different from the old house; or
- he adds Land to the existing house extent.

Tenant's also have the right to apply to enter the notice and restriction. Landlords should instruct the Property Lawyers and Conveyancing Solicitors to make application on form PSD 101.

This is the case where the new house or Land is held on a registered title.

However, it is possible that the other house is not registered and, since there is no requirement to register it, provision is made for the preserved right to buy to be registered as a Land Charge class C(iv) (estate contract) under the Land Charges Act 1972. Any application to the Land Charges Department should be made by the Property Lawyers and Conveyancing Solicitors on the normal Land Charges form K1.

If the Tenant has been moved to a new house and the old house is not occupied by a Tenant with the preserved right to buy, the Landlord should certify on form PSD 103 that the Land previously affected is no longer subject to the preserved right to buy, and apply for the cancellation of the entries relating to it.

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

. . . continued on page 13 (Property Lawyers and Conveyancing Solicitors in Manchester City Centre page 13)

If you require any further information please telephone 0161 866 8999 and we will be happy to help.

Ford Banks Irwin Solicitors
50 Stothard Road
Manchester
M32 9HB

Tel: 0161 866 8999
Fax: 0161 866 8333
E-mail: info@FordBanksIrwinSolicitors.co.uk

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Property Lawyers and Conveyancing Solicitors in Manchester City Centre for Transfer of Public Sector Housing Estates