Form ii Restriction Removal

My husband and I purchased our house in July 2017 and title was transferred to our joint names.  We are currently divorcing and trying to transfer it to my sole name but have hit a brick wall with a restriction that I desperately need to solve.

Title HP202637

The restriction was dated 09/11/2006 and states that no disposition can be registered without a certificate that written notice has been given to the ex-wife of the man we purchased from.

It has now come to light that, although this was complied with and title was re-registered to us, our solicitor at the time did not ensure that the restriction was removed from the deeds.  They have subsequently been closed down by the SRA as part of the Metamorph group so cannot be contacted.

My current solicitor is insisting that we cannot go ahead with the transfer of equity, despite the fact that she has again sent notice to the woman named in the deed, as the restriction needs to be removed.

Is there a procedure for getting this restriction removed?  Surely as the ex-wife of the person we purchased from cannot retain the restriction indefinitely, especially after being notified of 2 dispositions taking place?

 

Abigail - you can apply to cancel it using form RX3 and providing supporting evidence as appropriate to show that her protected interest has come to an end. Or the restrictioner can apply to withdraw it using form RX4.
You are correct that such an application should have been made when you were registered as the new owners 
As far as an actual transaction is concerned the restriction wording needs to be complied with so you'd need to ask your current solicitor why the transaction can't complete and an application made to update the register 
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Can you please advise what supporting evidence would be required?  Obviously we are quite limited as we do not have access to the previous files, however I would assume Land Registry hold details that the restriction was complied with when we purchased the property or the register wouldn't have been updated to show my husband and I as the new proprietors?

Thanks

Abigail - sadly not as it all depends what her interest was and whether it's come to an end for some reason, been dismissed, resolved or otherwise. 
Compliance relates to the wording of the restriction and the conveyancer would have provided the certificate as stated. That certificate would only have stated that the restrictioner had been notified. That in itself does not mean that the protected interest has come to an end
Your current conveyancer may need to dig into what interest the restriction protected or contact the restrictioner and ask them to withdraw it 
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I have spoken to the restrictioner on the phone.  She has told me that the restriction was put in place so that she would be notified when her ex-husband sold the property so she could then pursue a claim against him for some of the money he received for it.  She told me that she tried, unsuccessfully, to do that after we purchased the house and assumed that the restriction had been removed. She is currently refusing to remove the restriction, now she knows it is still there, without her solicitor confirming that having the restriction ensuring she is notified if the house is sold/transferred won't impact on her ability to bring a claim against him at any point.  I really don't know what sort of evidence we could provide regarding this?

Abigail - seems you may have the evidence you now need as you know what her interest is, why the restriction was applied for and agreed to by her ex and as the property has been sold she needs to pursue the monies she refers to. That doesn't involve you as you paid the purchase price so her original 'interest' is presumably no longer valid.
You need to rely on your conveyancer here to assist in putting an application together to request cancellation of the restriction and why you can't register your transfer of equity having complied with the restriction. Preferably they can do both for you.
It's not our role to advise you on such specific matters and we can only update the register once an application is submitted so you really do need to press your conveyancer to help you progress matters 

I've received acknowledgement of the application today ref: U696CVT, can you please let me know how to expedite it?

Abigail - Request an expedite - GOV.UK

Thanks, I have just submitted an expedite request via the contact form, reference: 250327-4507259.  I am concerned that it may take up to 20 working days for someone to look at it though and my mortgage offer is rapidly reaching expiry.

Abigail - your request has already been approved but I think you are being a tad pessimistic re your interpretation of the timescales mentioned, hence your 20 days reference
Expedition generally means the case is considered within 10 days - often it is processed within a few days
The second reference to 10 days is with regards any requests we might issue for more information - hopefully no such request is needed as you have completed the form RX3 correctly and there is no need to raise such a request
U696CVT 

I have received a reply today, but I'm very confused.

Please note that the restriction correctly remained on the register following completion of the registration of the Transfer dated 14 July 2017 as insufficient evidence was provided to cancel it at that time. As the restriction relates to an interest under a trust of land in favour of ************ this could not be cancelled automatically, as the purchase money was paid only to ************ and not to at least two trustees of land. Where purchasers pay the purchase price to at least two
trustees of land, the beneficial interests are overreached, and the trust attaches to the proceeds of sale, freeing the purchasers’ estate from it (sections 2 and 27 of the Law of Property Act 1925). In which case we would require evidence that ************* no longer has a beneficial interest under the trust before we could be satisfied enough to remove the restriction without the consent of *************.

We've never been made aware of any "trust of land" relating to the property and there is no mention of it in the Title Deed.  How do I provide evidence that the person in question no longer has a beneficial interest under the trust?  Does this mean that we paid the full purchase price and yet can still be held liable to pay more money?

Abigail - the 'trust' being referred to was the one created when the restriction was added to the register. The restriction effectively protected C J Drewett's beneficial interest and as your purchase transfer was from just Mr Harris we can't just assume that the trust/her beneficial interest is no more.
I suspect you won't know what happened next re the purchase monies you paid and can't satisfy the first option. As such the way forward is to contact her and ask her to provide a completed RX4 to withdraw the restriction as appropriate 
Whether you are under any liability to pay more in some way would be something to discuss with your legal rep and that may all depend on how she responds. 
As far as proceeding with the transfer of equity is concerned, having complied with the restriction, I suspect that the conveyancer won't proceed due to the requirements of the lender but only something they can answer.
U696CVT 

Hi

My solicitor has now received confirmation from yourselves that there was insufficient evidence to place the restriction on the register in the first place so she is filing an application to have it removed.  Can you please confirm what the timescale is in order to do this?  My mortgage offer is rapidly running out.

Thanks

Hi Abigail - we contacted the conveyancer on the 27th May to explain the position and explain what options are available to them. They need to read and respond to the contact as appropriate, presumably by selecting one of the options or a 'new' one as appropriate
If they are filing an application, and it is in order, then it can be processed quickly but as the letter explains we would have to complete wider checks which could last approx 3 weeks
Do speak to your conveyancer for clarity re what they are filing and what happens next
U696CVT

My solicitor lodged the application on 29 May, reference R359VWT.  Can you please confirm that it is being expedited as she was promised and give an update on the timescale.

Thanks

Abigail - the second application was also expedited and partially processed on the 29th May. Wider checks are now being completed by contacting the restrictioner. They are given until the 23rd June to consent/object as appropriate. If they don't reply then time runs out and the application is generally completed within 2/3 days after that date 
R359VWT

Can you confirm if there has been any reply from the restrictioner as they had until today to respond?

Thanks

Abigail - nothing showing as yet. The case will be referred back to the casework team tomorrow and they will then have to check all contact channels for a response. A final decision will then be made re completion of the application as appropriate. It's a manual process and not an automatic one and these subsequent checks must also be made 
R359VWT

Thanks. According to the letter the restriction should be able to be removed after 12pm today, can you please give me an update?

Abigail - the letter gives X amount of time to respond. Once the time has elapsed it's a manual process and the casework team have to check contact channels to be certain no responses received.
I'll check with the team for an update and will post again when I have something to share
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