Solicitor, North Devon District Council: Acting for a local authority whose enforcement action under
the Town and Country Planning Act 1990 created a land charge against a
property. The LA now need to follow enforced sale procedures to sell the
property to recover the outstanding debt. A procedure note and counsel's advice
on this process state that the local authority will need to prepare a
declaration and have it sealed to send to the Land Registry to get the charge
noted on the registered title. I do not understand the reference to a declaration
being 'sealed', a statutory declaration would be made by a person, so not
sealed, the local authority could seal, but is a body corporate without actual
knowledge to prepare a stat dec. Is there a practice guide that shows what kind
of declaration you are expecting? No precedent seems to be available.
Adam: Thank
you for your query. Although you refer to the statutory charge creating a land
charge, given you refer to registration of that charge in the register for the
property, I presume you mean a local land charge.
The Land
Registration Act 2002 (‘LRA 2002’) provides that local land charges are
overriding interests. This means that they will usually bind future owners
whether or not they are registered at HM Land Registry (‘HMLR’). For further
details, see practice guide 15: overriding interests
and their disclosure.
However, if you wish to enforce the charge, it must be registered at HMLR (s55
LRA 2002).
Any application
to register the statutory charge must be accompanied by evidence to show the
charge has arisen (r104 Land Registration Rules 2003). Because there is no
charge deed, that evidence usually takes the form of:
- a
sealed resolution; or
- a
minute of a council meeting
proving that a
charge has arisen. Where there is no sealed resolution, we will ask for a
certificate by somebody authorised by the council to confirm that the charge
arose. We have a standard form of wording for such a certificate which we can
supply, if needed. This may be where the confusion between sealing and
declaring has arisen. If there is a sealed resolution, then we do not need a
certificate. However, if not, we will need a certificate from a duly authorised
person on behalf of the council.
Lauran
McDonough: Can I remove a rent
charge dated 1912 from the register if the owner is absent? It is not
registered under a separate title number and is shown on the register of our
client's title.
Adam:
An application to cancel a noted rentcharge should be made using form CN1
together with supporting evidence as appropriate. Supporting evidence to
consider where the rentcharge owner is absent would include:
- peaceable
re-entry where application is made to rectify a registered freehold title
on the grounds that the estate to the registered land has been determined
by the exercise of an absolute power of re-entry out of court;
- re-entry after
order of the court where the rentowner has obtained possession of the
registered land subject to the rentcharge by order of the court;
- in the case of
a terminable rentcharge by effluxion of time; or
- adverse
possession when because of non-payment by the applicant or by any other
person, the rentcharge has become statute barred.
It is for you to demonstrate how the rentcharge has
been determined. The most common methods of determination are set out in section 6 of practice guide 56: rentcharges.
