Anonymous: I need help with the wording for inserting a restriction onto a title register for our client to pay back her legal aid fees on the sale or transfer of the property. Property is in joint names with former spouse and she will not sign the document required by the Legal Aid Agency to place a charge on the property so this is not an option.
Adam: Section 3.4.5 of practice guide 19: notices, restrictions and the protection of third-party interests in the register states that the Legal Aid Agency, where it has a statutory charge over a beneficial interest under a trust of land, may apply for a restriction in Form JJ. Practice guide 19 gives details of this restriction in appendix B. You should ensure that the circumstances that would entitle the Legal Aid Agency to apply for a restriction have been satisfied. A completed Form RX1 would be required accompanied by a fixed fee which is payable under Schedule 3, Part 1(1)(a) of the Land Registration Fee Order 2024.
Anonymous: I am dealing with a sale of a property where it was in joint names. One party executed a TR1 many years ago but it was not submitted for registration. The departing party has subsequently died in South Africa but there is no information as to where exactly or when. Would a statement of truth from the surviving owner setting this out be sufficient to transfer ownership? If not what other solution is there?
Adam: It is not clear from your query as to whether the party who executed the transfer is the individual who is believed to be deceased.
If the transfer has been executed by the party who is believed to be deceased and all other parties then you would need to submit the application for registration together with a full account for the delay. However you should be aware that HM Land Registry may raise additional enquiries regarding the application and if these require evidence of death to be provided that we would require the death certificate (or South African equivalent – if this is not in English a translation would be required). You would therefore be advised to attempt to obtain this information to prevent any additional delay.
If the individual who is believed to be deceased did not execute the transfer then we could not accept a statement of truth from the surviving proprietor as sufficient to process the transfer. HM Land Registry might consider an application to remove a deceased joint proprietor from the title by means of an application using form DJP but this would require evidence of death to be provided to support the application. Practice guide 6: devolution on the death of a registered proprietor contains additional information.
Alternatively, you may wish to explore the provisions of the Presumption of Death Act 2013 as to whether an application to the court under this legislation may be appropriate.
Anonymous: If there is a Form A restriction on a Title Register can you still register a Form MM restriction for one of the owners who has entered Residential Care?
Adam: Yes. The two restrictions are not mutually exclusive and serve different purposes.
A Form A restriction ensures that interests behind a trust are overreached when there is a disposition by two or more trustees or personal representatives. It does not give notice of an individual’s interest under the trust.
A Form MM restriction protects specific charges, such as those under section 71 of the Social Services and Well-being (Wales) Act 2014, affecting an equitable joint proprietor’s interest in a registered estate.
Stuart Gilchrist, Plotholders Land Management Group: We have been acquiring plots from victims of land banking scandals of 20 years ago. At one site we have 86% of the plots now committed to our co-operative of victims. The residual plots all have special difficulties. In one case the plotholder died suddenly in 2011. His executors were his mother and uncle (her brother). I have provided the will, coroner's and official death certificates, the death certificate of the uncle and the re-marriage certificate for the mother. She had provided all those documents, but a probate was requested. Mother does not want to take the matter further, partly because it is too distressing, but also the cost at an estimated £1,000 is more likely than not to be wasted as the prospects of development at the site is remote, at least for quite a few years. Her son had no assets, not even a car, never mind an owned home. His bank account was insufficient to cover the funeral so mother had to cough up most of the cost. (I must confess I found HMLR’s attitude here quite impossible. Given the elapse of time, no solicitor could know anything of the son or his circumstances, and mother could have declared virtually anything, because no contradiction could be made by any person.)
However, the question here is whether our co-operative, having a tenant of 10 years standing, and owning most of the site during that time, is likely to succeed in an adverse possession claim, or would the charade of insisting on a probate still be required?
An (apparently) similar case involved a plot owned by father and two daughters (all resident in Northern Ireland). Each of them became estranged from each other and father died in 2014. We contacted the care home manager who put us in touch with one daughter. She expressed little interest, mentioned the mutual estrangement of the owners, but we can no longer find her anyway. Is adverse possession feasible here (without will/probate)?
Adam: Probate is always required when a sole legal owner dies. It is a legal requirement with the registration requirements in tandem where land/property is concerned. While I understand and appreciate the issues this can pose, in the scenario as described it is quite clear that probate is required and our registration requirements follow and are not a ‘charade’.
Probate is required to ensure the legal authority of the person dealing with a deceased person's estate and the plot of land forms part of the son’s estate.
Probate provides formal recognition and safeguards for all parties involved in managing and transferring ownership after someone's death while ensuring compliance with legal processes related to estates and property rights.
Your scenario does not suggest that a claim as to adverse possession by your group would be successful as you have not met the complex legal requirements for such a claim to be successful – practice guide 4: adverse possession of registered land.
Anonymous: Would an "Interim" Death certificate, issued by the Coroner pending an inquest, be acceptable to Land Registry as evidence of the death of a registered proprietor? If so, are there any time limits?
Adam: An original interim death certificate (Coroner’s Certificate of the Fact of Death) would be acceptable as evidence of death; HM Land Registry does not prescribe a time limit. However, if the applicant is in possession of the original death certificate following conclusion of the coroner's enquiries then it would be anticipated that this would be provided.
A grant of probate/letters of administration would be required to support any disposition on behalf of a deceased individual where they were a sole proprietor. Practice guide 6: devolution on the death of a registered proprietor contains additional information.
Anonymous: When I am applying to close a Leasehold title and also want reference to the lease removing from the Schedule of Leases on the registered Freehold title I am not clear which form to use. Should I select "Lease Closure" as the transaction even against the Freehold? Could the portal be updated so that this is an application type on the drop down menu. Something like "Removal of reference to lease on Freehold title" CN1 seems to be geared to unregistered leases.
Adam: HM Land Registry provides guidance as to standalone lease closure applications through the Digital Registration Service.
This details the different types of lease closure and the transactions to select. The same transaction can be used for both the freehold and leasehold title.
Depending in your circumstances section 2 of that guide explains the transaction codes.
