8:38 AM, 16th February 2016, About 6 years ago 6
First off hi to everyone on this forum. I have been reading on this forum for a long time but I now have a question.
I have a BTL property which has a form B restriction on registered at land registry. What I need to know is will this affect my ability to re – mortgage ?
From Gov.uk >> https://www.gov.uk/government/publications/private-trusts-of-land/practice-guide-24-private-trusts-of-land
The wording of this restriction is as follows (Form B, Schedule 4 of the Land Registration Rules 2003).
“No disposition [or specify details] by the proprietors of the registered estate is to be registered unless one or more of them makes a statutory declaration or statement of truth, or their conveyancer gives a certificate, that the disposition [or specify details] is in accordance with [specify the disposition creating the trust] or some variation thereof referred to in the declaration, statement or certificate.”
The general rule is that, for the purpose of exercising their functions as trustees, trustees of land have all the powers of an absolute owner (section 6(1) of the Trusts of Land and Appointment of Trustees Act 1996). However, under section 8 of the Trusts of Land and Appointment of Trustees Act 1996, a disposition creating a trust of land can contain provisions limiting the trustees’ powers. Any such limitation needs to be reflected by a restriction in the register in order to protect the rights of the beneficiaries. In the absence of a restriction, a purchaser of a registered estate from the trustees will not need to check whether any necessary consent has been obtained, or that any limitation on the trustees’ powers of disposition has been complied with. The purchaser’s title cannot be questioned even if the trustees exceeded their powers in making the disposition (section 26 of the Land Registration Act 2002).
Trustees must apply for a Form B restriction in the following circumstances (rule 94(4) and (5) of the Land Registration Rules 2003).
This applies not only when the legal estate is held by trustees, but also when it is held by the personal representative of a sole or last surviving trustee (rule 94(7) of the Land Registration Rules 2003).
An application by one of two or more trustees satisfies the requirement to apply (rule 94(9) of the Land Registration Rules 2003), although such an application should be made as an application by a person with sufficient interest in the making of the entry (rule 92 of the Land Registration Rules 2003) and be accompanied by evidence of that interest.
Where a Form A restriction is required (see Form A: the joint proprietorship restriction), it will be needed as well as the Form B restriction.
Where a registered estate is held on a trust of land, and the powers of the trustees are limited by section 8 of the Trusts of Land and Appointment of Trustees Act 1996, any person interested in the estate can apply for a Form B restriction (under section 43(1)(c) of the Land Registration Act 2002 and rule 93(c) of the Land Registration Rules 2003). Unless the consent of the registered proprietors accompanies the application, the registrar will have to serve notice of the application on them (the application will be a notifiable one under section 45 of the Land Registration Act 2002). The notice will give them 15 business days in which to object (rule 92(9) of the Land Registration Rules 2003).
In many cases, the limitation on the trustees’ powers will not apply to all dispositions, but only those of a certain kind. In such cases, the word ‘disposition’ may be replaced with ‘transfer’, ‘lease’ or ‘charge’. It should not however be replaced with a more complex provision, for example ‘lease for a term of more than 21 years’ (rule 91A(8) of the Land Registration Rules 2003). You should not specify the nature of the consents required, or any similarly complex provision in the restriction. The restriction contains the qualifying words “unless one or more of them makes a statutory declaration or statement of truth, or their conveyancer gives a certificate, that the disposition [or specify type of disposition] is in accordance with…”. The purpose of this is to allow the restriction to reflect the terms of the disposition creating the trust without requiring the registrar to consider those terms or whether they have been complied with. The normal way of complying with the restriction will be to supply a certificate by the proprietors’ conveyancer. A statutory declaration or statement of truth will only be needed if the conveyancer is unwilling to give a certificate for any reason or if no conveyancer is acting.”
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