I am reposting the whole thread here. Thankfully I had printed it. It is slightly re-worked for brevity. Please merely add your response on the question of Rule 114(4):
My partner is the sole legal owner of a property in England.There is a charge in favour of her deceased ex-partner for half of the gross proceeds of sale.There is no probate/grant registered and the only potential beneficiary she can identify (her estranged son) will not cooperate with her or her conveyancer. The deed of charge effectively establishes a trust, with the 50% constituting the Trust property, my partner as the Trustee, and the Beneficiary the Estate of her ex partner. The law (Trustee Act 1925 see below) allows her as Trustee to make a payment of the 50% into court, explaining who the beneficiary should be, and thus discharge her duties as Trustee (s63 para 2). Will the registrar accept this as sufficient discharge to remove the charge on receipt? If so, what forms should be completed by her conveyancer?
There is a linked restriction on transfer which I have made an application for removal with reference 230713-2232813. All the documents are there, and that application has been expedited. It might help, in order for you to answer, to refer to that file.
You replied:
In the situation that you are describing we would expect either a discharge in form DS1 executed by the Court or a Court Order specifically instructing HM Land Registry to remove the Charge. These would then be submitted to us together with an application form DS2 or AP1.
I was then asking about the registrar's discretion under Rule 114(4), see below, and if it were not to be a waste of time trying that route, what forms should be used to ask the registrar to apply their discretion under this rule...
Many thanks
Andy
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Land Registration Rules 2003
Discharges and releases of registered charges
114.—(1) Subject to rule 115, a discharge of a registered charge must be in Form DS1.
(2) Subject to rule 115, a release of part of the registered estate in a registered title from a registered charge must be in Form DS3.
(3) Any discharge or release in Form DS1 or DS3 must be executed as a deed or authenticated in such other manner as the registrar may approve.
(4) Notwithstanding paragraphs (1) and (2) and rule 115, the registrar is entitled to accept and act upon any other proof of satisfaction of a charge that he may regard as sufficient.
(5) An application to register a discharge in Form DS1 must be made in Form AP1 or DS2 and an application to register a release in Form DS3 must be made in Form AP1.
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Trustee Act 1925
63 Payment into court by trustees.
(1)Trustees, or the majority of trustees, having in their hands or under their control money or securities belonging to a trust, may pay the same into court; . . . F1
(2)The receipt or certificate of the proper officer shall be a sufficient discharge to trustees for the money or securities so paid into court.
(3)Where money or securities are vested in any persons as trustees, and the majority are desirous of paying the same into court, but the concurrence of the other or others cannot be obtained, the court may order the payment into court to be made by the majority without the concurrence of the other or others.
(4)Where any such money or securities are deposited with any banker, broker, or other depositary, the court may order payment or delivery of the money or securities to the majority of the trustees for the purpose of payment into court.
(5)Every transfer payment and delivery made in pursuance of any such order shall be valid and take effect as if the same had been made on the authority or by the act of all the persons entitled to the money and securities so transferred, paid, or delivered.
