| Ask Adam Please keep your questions coming for Customer Policy Manager Adam Hookway. We're very keen to focus on the land registration aspects of conveyancing transactions, as the interactions between conveyancers and other property professionals aren't really in our scope, but we'll consider everything you put to us. |
Anonymous: I am dealing with a matter where a freehold Title is owned jointly and subject to a Form A Restriction. My Client is 'buying out' the 50% interest of his former partner. The Form A Restriction will be cancelled as the TR1 will be from both registered proprietors to my Client. There is a further Restriction which was entered by my Client's late mother pursuant to a Declaration of Trust which was prepared in 2007 when my Client and his former partner purchased the property. The Dec of Trust recites details of the financial assistance provided by her to the purchase price paid by my Client and his former partner and provides for her to be entitled to a share of the balance net sale proceeds after paying off the mortgage. The mortgage was paid off some time ago. The Restriction states that "No disposition of the registered estate by the proprietor of the registered estate is to be registered without a written consent signed by [name and address of my Client's late mother". The issue I have is that my Client's mother passed away in 2014. Probate to her estate was granted to my Client and her brother (my Client's Uncle). My Client is the beneficiary under his late mother's Estate. My question is can my Client and his Uncle, the co-executor, sign a Land Registry Form RX4 application to withdraw the Restriction supported by a certified copy of the Grant of Probate to my Client's late mother's Estate? Adam: The late motherâs interest, as protected by her restriction, may form part of her estate and therefore may not have come to an end. We cannot assume that an interest protected by a restriction ends upon the death of a named restrictioner so a form RX3 will be required, along with supporting evidence to explain the nature of the interest protected by the restriction and show how this has come to an end. Sections 3.7.3 and 4 of practice guide 19: notices, restrictions and protection of third-party interests provide guidance. The Form A restriction would not be automatically cancelled in the way you have suggested. We cannot automatically assume that the trust of land has come to an end in such a scenario as one of the current registered owners, your client, is the transferee and remaining on the register. You would need to show that your client has become the sole beneficial owner and any trust under which the property was held has come to an end. There could also be other beneficial interests, or one of the former or current proprietors could have charged or otherwise encumbered their share. We can only cancel the restriction where we are satisfied the trust(s) have come to an end. Section 6.2 (first bullet point) of practice guide 24: private trusts of lands explains how a Form A restriction can be cancelled and I would draw you to the reference to a conveyancerâs certificate being an option that may fit your specific scenario. * With regards to the late motherâs restriction, itâs important to match the form of restriction with the right guidance. Both practice guide 19 and practice guide 24 cover the different scenarios regarding the cancellation/withdrawal of restrictions. Anonymous: I have a client who has purchased a property from a mortgagee in possession via a TR2. In addition to the mortgage on the property, there are two entries for Equitable Charges which relate to different lenders than the mortgagee in possession. There are no related restrictions on the title. Will the TR2 over-ride these Equitable Charges, or will they carry over onto my client's title on registration? Adam: Equitable charges are protected by a notice in the register and their consideration is dependent on when they were noted. If they were noted after the registration of the transferorâs charge, we will generally cancel the notice automatically on registering the transfer. If they were noted before the registration of the transferorâs charge, we will not automatically cancel these and an application in form CN1 (for a charge protected by an agreed notice) or form UN4 (for a charge protected by a unilateral notice) must be lodged. Please see section 2.2 of practice guide 75: transfer under a chargee's power of sale  for guidance on when such charges will be automatically cancelled. | 