Notices And Restrictions

What is a Notice?

A notice is an entry which appears in the Charges Register (with the exception of a Bankruptcy Notice) of the Official Copies and which protects the priority of a third party interest in the property against the affect of a "disposition for value" (basically a purchase, a charge or the grant of a new lease, but not a gift or a transfer at undervalue). With the exception of certain overriding interests, any third party interest not protected by being noted on the registers is lost when a property is sold, because the purchaser is entitled to be free of any interests other than those which he has had notice of (and overriding interests). The fact that a notice is registered does not necessarily mean that the interest to which it relates is valid, merely that it is claimed. Some examples of interests which may be protected by a notice are:-

• (Matrimonial) Home Rights
• A Bankruptcy Petition
• A contract for sale
• An agreement for Lease
• A charging order
• An equitable charge
• An option agreement or right of pre-emption
• Other interests which are not registrable dispositions within the meaning of Section 27(2)(d) of the Land Registration Act 2002, save that a grant of an easement or profit may be protected by a notice, however unless properly registered it will not operate at law.

Under the Land Registration Act 2002 there are two types of notice - Agreed and Unilateral, however prior to 2002 there were several others, some of which will still be in existence.

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Agreed Notice

An agreed notice can only be registered either with the consent of the owner, or if the applicant produces satisfactory evidence to the land registry of his claim. It is applied for using form AN1. If registering a notice to protect a contract or agreement for lease (this will sometimes be done by people who are purchasing a plot or apartment in a new development, to protect their interest between exchange of contracts and completion, which can be several months) then satisfactory evidence would be a certified copy of the contract. An agreed notice must specify the interest which it protects, and where that interest is evidence by a document and extract of it will be set out in the registers, or else a copy will be retained by Land Registry and the register will note that an office copy is available. Once an agreed notice has been registered, notice of it will be served on the registered proprietor of the land. Whether with the consent of the owner or based on evidence, it can only be removed either following an application by the beneficiary of it or if evidence is produced to the land registry that the interest to which it relates is no longer valid/required. The form used to cancel it is form AN4. An Agreed notice is therefore more durable than a Unilateral Notice, but is more difficult to have registered unless the owner of the land consents.

Unilateral Notice

A unilateral notice does not require the consent of the proprietor, nor is the applicant obliged to provide evidence to satisfy the land registry that the claimed interest is valid. Once the notice is registered however, the proprietor will be informed and will have the opportunity to object. Upon receipt of an objection the beneficiary of the notice is obliged to provide evidence of the interest being claimed to the land registry. If he is unable to provide evidence that the notice will be removed. The notice is entered using for UN1 and removed using UN4.

Home Rights Notice

A home rights notice (formerly a matrimonial home rights notice prior to the Civil Partnership Act 2004) is a form of agreed notice, which protects an interest of the non-owning spouse or civil partner arising under section 31(2) or 31(5) of the Family Law Act 1996. The application to register a notice is made using form HR1. As with any agreed notice, if the proprietor's consent is not obtained then evidence of the interest being claimed will need to be produced, in this case in the form of a court order. As to the circumstances in which rights might or might not accrue, the framework is set out in the Family Law Act 1996 and Civil Partnership Act 2004, but beyond that this is a matter for a matrimonial lawyer, and that is not my field of expertise.

A home rights notice is removed using form HR4 (though this is not absolutely necessary - a written application can be accepted). One of the following must accompany the application:-

• Death certificate
• Office Copy of the Decree Absolute of the divorce or nullity
• Office Copy of a court order ending the home rights
• an office copy of the final dissolution, nullity or presumption of death order, or of the separation order, relating to the civil partnership
• a release of the home rights, signed by the spouse or civil partner and either made by letter or using form HR4.

A spouse's/civil partner's home rights are extinguished upon the dissolution of the marriage/civil partnership, however the notice must still be removed.

Bankruptcy Notice

Unlike other notices, a bankruptcy notice is placed in the proprietorship register. When a new bankruptcy petition is made against an individual it is first registered with the Land Charges Department. This is an entry recorded against the person's name, and is registered whether or not that person is known to own property. Land charges will then check to see if the person does own property, and will supply the Land Registry's Bankruptcy Unit with a list of title numbers they believe may be affected. The Land Registry will then check to see whether the debtor is the registered proprietor of any of the titles. If they are satisfied that the debtor and proprietor are one and the same, they will register a notice in the following form:-

"BANKRUPTCY NOTICE entered under section 86(2) of the Land Registration Act 2002 in respect of a pending action, as the title of the proprietor of the registered estate appears to be affected by a petition in bankruptcy against [name of debtor], presented in the [name] Court (Court Reference Number_________ ) (Land Charges Reference Number PA_________ )"

If they are satisfied that they are not the same they will take no further action. If it is unclear they will write to the proprietor and ask whether they are the debtor. If the proprietor responds to say they are, or if the proprietor does not respond, they will register the notice. If the proprietor confirms that he/she is not the debtor, no further action will be taken.

The effect of a bankruptcy notice is that anyone who purchases the property following the registration of the notice does so subject to the rights of the creditors. Similarly if the purchaser took a mortgage the lender's interest would be subject to the creditors' rights. A notice (unless registered in error) will normally only be canceled either by order of the court, or else when a bankruptcy restriction (discussed later on this page) is registered.

A bankruptcy notice will only be registered where the debtor is the sole proprietor of the subject property. In the case of joint or multiple proprietors no notice will be registered.

Restrictions

What is a Restriction?

A restriction is an entry made in the Proprietorship register of the title to freehold property, which restricts what dispositions (sales, mortgages, gifts etc) can be registered against the title. It is registered using form RX1 and removed with form RX4. A restriction can be used to protect any number of interests, and there are many standard forms. The full list can be found in Land Registry Practice Guide 19 at section 10. We will discuss the more common forms of restriction below:-

Restriction on Dispositions by a Sole Proprietor (Form A)

"No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court."

The above restriction appears when 2 or more people purchase a property and choose to hold it as Tenants in Common , rather than as Joint Tenants. It should also be registered (though the proprietors will need to apply to the Land Registry) if a Joint Tenancy is severed. Its purpose is to ensure that, on the death of one proprietor, the property cannot be sold by one survivor on his own. Instead, either the personal representatives of the deceased must join in the sale, or else the survivor must appoint a trustee. The appointment is usually made in the transfer deed with the following wording in box 12 "So that the Transferor can give a good receipt for the purchase price Jane Doe in exercise of her statutory powers appoints John Doe to be a trustee of the Property together with Jane Doe". The appointment of a trustee overreaches the other proprietor's interest in the legal title (he does not have to be deceased) however the trustee is then equally responsible with the seller for ensuring that the other proprietor (or his estate) receives whatever portion of the equity that is due to him". 

Non-exempt Charity - Certificate Required (Form E) 

"No disposition by the proprietor of the registered estate to which section 36 or section 38 of the Charities Act 1993 applies is to be registered unless the instrument contains a certificate complying with section 37(2) or section 39(2) of that Act as appropriate"

This restriction prevents land held in a charitable trust from being sold for less than its market value. To comply with the restriction the trustees of the charity (that is to say the sellers) must certify in the transfer deed that they have complied with the provisions of section 37(2)(b) of the Charities Act 1993. These provisions call for them not to transfer the property unless they have the authority under the trusts to do so, and also not to transfer it except at the best price reasonably achievable. They must also not sell the property to a person connected to the charity or trust without an order of the court or the Charity Commissioners. An example of the wording that you would expect to see in the transfer to satisfy this covenant is " ".

Restriction on Sale When One of Proprietors is a Bankrupt (Form J)

"No disposition of the [registered estate or registered charge dated [date]] is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to [name of trustee in bankruptcy] (the trustee in bankruptcy of [name of bankrupt person]) at [address for service]."

This restriction will be entered where a bankruptcy order has been made against one of the proprietors of a property held in one or more names. Where a property is held in joint names the property does not become vested in the Trustee in Bankruptcy as it would if it were solely owned by the Bankrupt and therefore the Trustee in Bankruptcy does not have the power to sell the property or to prevent sale. The purpose of the restriction is that he will have notice of any sale and will therefore be able to pursue the bankrupt, as any equity that, but for the bankruptcy, would be due to the bankrupt, will be due instead to the trustee. The non-bankrupt proprietors are entitled to their share of the equity. Any bankrupt or impending bankrupt attempting to avoid the loss of their property should be warned that any transaction, particularly one to a connected person, that takes place at undervalue (for example if the property is transferred by way of a gift, or into joint names) can be overturned by the Trustee in Bankruptcy.

Where a Form J restriction is registered, the Trustee in Bankruptcy will usually also register a Form A restriction. This is because any joint tenancy is severed once one of the proprietors becomes bankrupt.

Certificate of Compliance required - Form L

"No disposition [or specify details] of the registered estate [(other than a charge)] by the proprietor of the registered estate [,or by the proprietor of any registered charge,] is to be registered without a certificate [signed by [name] of [address] [or [his conveyancer] or specify appropriate details]] or [signed on behalf of [name] of [address] by [its secretary or conveyancer or specify appropriate details]] or [signed by a conveyancer] or [signed by the applicant for registration [or his conveyancer]] that the provisions of [specify clause, paragraph or other particulars] of [specify details] have been complied with."

This restriction requires that a certificate be given by either the beneficiary of the restriction or by the purchaser's conveyancer that some transfer or lease clause has been complied with. Typically this will appear on leasehold titles or on freehold titles which are subject to an estate charge, and the obligation contained in the clause referred to will be to ensure that the purchaser enters into a deed of covenant with the management company to pay the charge. This is because positive covenants (for example a covenant to pay money) are only enforceable between the original covenanting parties. The option for the purchaser's conveyancer to give the certificate is sometimes omitted. Prior to exchanging contracts the purchaser's conveyancer should enquire (through the seller's conveyancer) as to the restrictioner's requirements for issuing the certificate of compliance as registration cannot be completed without it. Exchange should not take place unless the purchaser's conveyancer either has everything that will be required to obtain the certificate, or else he is absolutely satisfied that he will have this at completion. It should be noted that there is often a fee charged for issuing the certificate and this should be ascertained pre-exchange.

Consent required - Form N

"No disposition [or specify details] of the registered estate [(other than a charge)] by the proprietor of the registered estate [or by the proprietor of any registered charge] is to be registered without a written consent [signed by [name] of [address] [or [his conveyancer] or specify appropriate details]]or [signed on behalf of [name] of [address] by [its secretary or conveyanceror specify appropriate details]]."

This is a general restriction which prevents a transfer being registered without the consent of the person named therein. The purchaser's solicitor must ascertain what will be required to obtain consent before moving to exchange. The restriction may be in favour of a management company or landlord to ensure that a Deed of Covenant is entered into, or it may be in favour of an individual to secure a debt. where appropriate an undertaking that the consent will be obtained and handed over, or that the seller's solicitors will perform any actions no behalf of the seller that are necessary to obtain the consent, should be obtained prior to exchange.

Consent of chargee needed to transfer - Form P

"No disposition [or specify details] of the registered estate [(other than a charge)] by the proprietor of the registered estate [or by the proprietor of any registered charge] is to be registered without a written consent signed by the proprietor for the time being of the charge dated [date] in favour of [chargee] referred to in the charges register [(or his conveyancer or specify appropriate details)] or, if appropriate, signed on such proprietor's behalf by [its secretary or conveyancer or specify appropriate details]."

This restriction will often appear where there is a charge on the property and it prevents any transfer being registered without the consent of the proprietor of the charge. Consent need not be obtained however when the mortgage is being repaid on completion (which would practically always be the case) because the restriction will automatically be removed along with the charge.

Bankruptcy Restriction

"BANKRUPTCY RESTRICTION entered under section 86(4) of the Land Registration Act 2002, as the title of the proprietor of the registered estate appears to be affected by a bankruptcy order made by the [name] Court (Court Reference Number_________ ) against [name of debtor] (Land Charges Reference Number WO_________ ). No disposition of the registered estate is to be registered until the trustee in bankruptcy of the property of the bankrupt is registered as proprietor of the registered estate"

This restriction will be entered by the Trustee in Bankruptcy where the bankrupt is the sole proprietor of the property. It prevents any sale or mortgage of the property except by the trustee in bankruptcy. Once a bankruptcy order is served, the bankrupt's property automatically vests in, that is to say belongs to, the trustee, whether or not it is actually registered in his name. He may proceed to have the property registered in his name, or else he may sell.