An interim or final charging order that charges the legal estate may be protected by the entry of a notice in the register. A charging order that charges a beneficial interest under a trust of land cannot be protected by way of notice but can be protected by the entry of a Form K restriction. Practice guide 76: charging orders contains detailed guidance on the points to take into account when considering whether a charging order imposes a charge on the legal estate or on a beneficial interest.

An application to the court (including one to the County Court Money Claims Centre) for a charging order on the legal estate is a pending land action and so is capable of protection by entry of a notice - see Pending land actions. An application to the court for a charging order in respect only of a beneficial interest under a trust cannot be protected by notice or restriction, as the application to the court relates to a beneficial interest under a trust and not to the legal estate.

A charging order may often have two different dates, but please remember that the correct date to use in an application is the one contained in the preamble to the order (for example “On [date], District Judge [name] considered the application…..”).

6.2 Bankruptcy

Where a petition in bankruptcy is filed in the court against a sole registered proprietor, a bankruptcy notice is entered in the register. Once the bankruptcy order has been made against a sole registered proprietor, a bankruptcy restriction is entered in the register.

Where one or more of joint registered proprietors is subject to a petition in bankruptcy or bankruptcy order, neither a bankruptcy notice nor a bankruptcy restriction will be entered. However, the trustee in bankruptcy may apply in form RX1 for a Form J restriction once the bankruptcy order has been made. The application should be accompanied by a certified copy of the bankruptcy order and evidence of the trustee in bankruptcy’s appointment.

The trustee in bankruptcy may apply at the same time and in the same form RX1 for a restriction in Form A, provided a Form A restriction has not already been entered in the register.

For further information please refer to our practice guide 34: personal insolvency.

6.3 Contract for sale

A contract for sale may be protected by agreed notice or unilateral notice. If you are applying for an agreed notice, see Applying for an agreed notice. Your application should be accompanied by a certified copy of the contract, and the consent of the registered proprietor, if available. If you are applying for a unilateral notice, see Applying for a unilateral notice. Form UN1 must be completed with either a statement in panel 11 or conveyancer’s certificate in panel 12 setting out details of the contract, including the date of the contract and the parties.

In the case of a sub-sale, you must also lodge certified copies of both contracts if an agreed notice is sought. If a unilateral notice is applied for you must provide details of both contracts, as above, and establish the link between the registered proprietor and the applicant.

If the contract expressly limits the registered proprietor’s powers to make any disposition of the property you may also be able to apply in form RX1 for a restriction to prevent a breach of this provision, see Applying for a restriction. The application would normally be for a restriction in Form L referring to the relevant provision of the contract. In the absence of the registered proprietor’s consent, you must lodge a certified copy of the contract and complete the statement in panel 12 of form RX1 or conveyancer’s certificate in panel 13. Give details of the contract and identify the provision in the contract limiting the registered proprietor’s ability to make any disposition.

6.4 Beneficiaries under a trust of land

An interest under a trust of land can only be protected by a restriction. A beneficiary under a trust of land should generally apply for a restriction in Form A, if a restriction in Form A has not already been entered in the register. A Form A restriction ensures that any capital money must be paid to 2 trustees or a trust corporation. The application must be accompanied by a certified copy of the trust deed evidencing the applicant beneficiary’s interest under the trust of land. The statement in panel 12 of form RX1 or conveyancer’s certificate in panel 13 must be completed, setting out how the beneficiary’s interest under the trust of land has arisen.

A consent restriction in Form N will not normally be appropriate as this would give the beneficiary a right they are not entitled to and could result, in practice, in thwarting the clear intention of sections 42(1)(b) and 44(1) of the Land Registration Act 2002 and sections 2 and 27 of the Law of Property Act 1925 that overreaching should take place. However, such an application for a Form N restriction in addition to a Form A restriction might be made, for example, by a beneficiary whose specific consent is required in the trust deed to any disposition by the trustees. Such a restriction may also, of course, be entered if the registered proprietors apply for or consent to such a restriction.

The position is similar where the beneficiary’s interest under a trust of land arises under an implied, resulting or constructive trust rather than by deed. The interest may only be protected by restriction, not notice, and again the form RX1 application should generally be for a restriction in Form A. The statement in panel 12 of form RX1 or conveyancer’s certificate in panel 13 must set out how the beneficiary’s interest under the implied, resulting or constructive trust of land has arisen.

For the avoidance of doubt, please note that an application that relies solely on the fact of marriage or civil partnership and/or divorce or dissolution proceedings cannot proceed unless it is also supported by a statement, or evidence, that confirms the applicant is also a beneficiary under a trust of land and explains how their interest has arisen.

A beneficiary under a trust of land may, however, wish to apply for an additional form of restriction and will be able to do so in certain circumstances. For example, a beneficiary under a constructive trust claiming that the registered proprietors hold on a trust of land for the beneficiary and for themselves may apply for a restriction in Form II.

The application for restriction must be applied for as per Applying for a restriction. Form RX1 must contain a statement in panel 12 or conveyancer’s certificate in panel 13 must set out how the beneficiary’s interest under the trust of land has arisen. Note that payment of capital money to 2 trustees or a trust corporation will still overreach the beneficiary’s interest under the trust of land and a restriction in this form will not prevent overreaching.

Special provision is made under the Land Registration Rules 2003 where the beneficiary’s interest under a trust of land arises from a charging order on a beneficial interest, a trustee in bankruptcy has a beneficial interest in a registered estate held under a trust of land. See Interests under trusts, Charging orders and Bankruptcy.

6.5 Home rights

Home rights may only be protected by agreed notice (rule 80(a) of the Land Registration Rules 2003). To apply you should include the ‘notice of home rights’ transaction in your application and upload form HR1. Where the application is made after the court has made an order under section 33(5) of the Family Law Act 1996, you must enclose an office copy of the order or a conveyancer’s certificate confirming they hold such an order.

Where the court has made an order under section 33(5) of the Family Law Act 1996, an application for renewal of registration in respect of matrimonial home rights must be made. To apply, include the ‘renewal of home rights’ transaction in your application and upload form HR2. You must upload an office copy of the order or a conveyancer’s certificate confirming they hold such an order.

6.6 Option agreements and rights of pre-emption

An option to purchase or a right of pre-emption may be protected by agreed notice or unilateral notice, as may an option to renew a lease. If you are applying for an agreed notice, see Applying for an agreed notice. Your application should be accompanied by a certified copy of the deed creating the option or right of pre-emption. You should also enclose the consent of the registered proprietor, where available. If you are applying for a unilateral notice, see Applying for a unilateral notice. Form UN1 must be completed with either a statement in panel 11 or a conveyancer’s certificate in panel 12 setting out the details of the agreement, including the date of the agreement and the parties.

If the agreement limits the registered proprietor’s powers to make a disposition you may also be able to apply in form RX1 for the entry of a restriction to prevent a breach of this provision. Application should be made as per Applying for a restriction. The application would normally be for a restriction in Form L, or Form M if appropriate, referring to the relevant provision of the agreement. In the absence of the registered proprietor’s consent to the entry of the restriction, you must lodge a certified copy of the deed creating the option or right of pre-emption, and complete the statement in panel 12 or conveyancer’s certificate in panel 13. Give details of the agreement, including the date of the contract and the parties, and identify the provision in the contract limiting the registered proprietor’s ability to make any disposition.

If application is made by or with the consent of the registered proprietor there is no requirement to provide a copy of the agreement. If however a copy is lodged with the application it will be retained and will normally available as a publicly accessible document (section 66 of the Land Registration Act 2002 and rule 135 of the Land Registration Rules 2003). This may assist with future compliance with the terms of the restriction.

6.7 Equitable charges

An equitable charge against the legal estate may be protected by agreed notice or unilateral notice. If you are applying for an agreed notice, see Applying for an agreed notice. Your application should be accompanied by a certified copy of the equitable charge. If you are applying for a unilateral notice, see Applying for a unilateral notice. Form UN1 must be completed with a statement in panel 11 or a conveyancer’s certificate in panel 12 setting out the details of the charge, including the date of the charge and the parties.

An equitable charge over a beneficial interest cannot be protected by notice. A person having the benefit of such an equitable charge should apply for a restriction in Form A, provided a restriction in Form A has not already been entered in the register. The application should be made as per Applying for a restriction and accompanied by a certified copy of the equitable charge over the beneficial interest. A Form A restriction ensures that any capital money must be paid to 2 trustees.

If a restriction in Form A is already entered in the register, then no further restriction is required and no further restriction may be entered.

Special provision is made in respect of charging orders on a beneficial interest. See Charging orders.

Please remember that an unsecured debt is not an interest in land and is therefore not a third-party interest capable of protection by notice or restriction.

6.8 Protection of charges in the register when a restriction prevents registration

A prior restriction may require the consent of a specified person, for example a registered chargee, before any disposition by a registered proprietor may be registered. If the necessary consent cannot be obtained and the restriction complied with, a person who has taken a further charge will be unable to register that charge substantively. The charge may, however, be protected by agreed or unilateral notice. If you are applying for an agreed notice, see Applying for an agreed notice. Your application should include a certified copy of the charge. If you are applying for a unilateral notice, see Applying for a unilateral notice. Form UN1 must be completed with a statement in panel 11 or a conveyancer’s certificate in panel 12 setting out details of the charge, including the date of the charge and the parties.

Note that many charges contain an application for a restriction that follows the lines of the standard Form P restriction and call for the consent of the proprietor of the charge. This type of restriction cannot be entered when the charge is not substantively registered. This is because there will be no proprietor of a registered charge (a beneficiary of a unilateral notice is not a proprietor for this purpose). So, if a charge is not substantively registered and an application is made to note the charge instead, a separate application must be made for an appropriate form of restriction; this will generally be for a restriction in standard Form N. This must be applied for as per Applying for a restriction. The consent of the borrowers to the form of restriction applied for should accompany the application.

6.9 Freezing orders

Any person who has applied for a freezing order may apply for the entry of a restriction in Form CC or DD, depending on whether the restriction is to prevent dispositions of the registered estate or a registered charge. This must be applied for as per Applying for a restriction. The application must be accompanied by a certified copy of the application to the court for the freezing order.

Once granted, the freezing order may be protected by restriction. Apply in form RX1 for a restriction in Form AA or BB, depending on whether the restriction is to prevent dispositions of the registered estate or a registered charge. The application must be accompanied by a certified copy of the freezing order.

6.10 Individual voluntary arrangements (IVA)

If the debtor is the sole proprietor of the registered estate which they hold for their own benefit, application may be made for an agreed notice or unilateral notice if the IVA contains an equitable charge, a contract for sale, option or right of pre-emption in favour of the supervisor affecting the registered estate. If you are applying for an agreed notice, see Applying for an agreed notice. Your application must be accompanied by a certified copy of the IVA. The consent of the registered proprietor, where available, should also be provided. If you are applying for a unilateral notice, see Applying for a unilateral notice. Form UN1 should include a statement in panel 11 or a conveyancer’s certificate in panel 12 setting out the details of the IVA, including the date of the agreement, the debtor’s name and details of the provisions in the IVA relating to the registered estate claimed to give the supervisor an interest in the registered estate or charge.

If the debtor has a beneficial interest under a trust of land of a registered estate and the IVA creates an equitable charge, a contract for sale, option or right of pre-emption in favour of the supervisor or if the effect of the IVA is to create a trust either expressly or the property is stated to be held for the benefit of the creditors the interest cannot be protected in the register by entry of an agreed or unilateral notice affecting that interest. The method of protecting an interest under a trust of land is by way of restriction.

Any application for a restriction must be applied for as per Applying for a restriction. Other than an application made by or with the consent of all the registered proprietors, your application must be accompanied by a certified copy of the IVA to show that the registered estate is subject to the trust and that the supervisor has a sufficient interest in the entry of the restriction sought.

If the debtor is a sole registered proprietor who was holding the property on trust for their own benefit before the IVA and is holding the property on trust for the creditors under the voluntary arrangement, an application may be made for a restriction in Form A or Form II.

If the IVA contains a provision that the debtor will not transfer, charge or otherwise deal with the property without the consent of the supervisor then, in addition to a Form A restriction, if applied for, application may also be made for a restriction in Form N, Form NN or Form L. In other circumstances where a restriction is required the consent of the registered proprietor to the entry of a restriction should be provided in form RX1 or a conveyancer’s certificate given that such consent is held.

Where the property is held by joint registered proprietors (one of whom may be the debtor) on trust for the debtor and others before the IVA, an application may be made for the entry of a restriction in Form A, provided a Form A restriction has not already been entered in the register if the IVA contains a charge or assignment of the debtor’s beneficial interest, or creates a trust in favour of the supervisor.

The supervisor may also apply for a restriction in Form II if the IVA contains an assignment of a debtor’s beneficial interest because the trust interest will be owned by the supervisor and not by the debtor.

If the beneficial interest is held on trust by the debtor for the creditors or charged to the supervisor, no form of restriction other than in Form A (provided it is not already entered) can be applied for. This is because the interest of the supervisor or creditors will be derivative.

6.11 Proprietary estoppel interests

A claimed equity by estoppel may be protected by notice from the time when the equity is claimed to have arisen. An application for a unilateral notice must be made as per Applying for a unilateral notice unless the facts claimed to give rise to the interest are unequivocal, when application may be made for an agreed notice, see Applying for an agreed notice. If applying for a unilateral notice, form UN1 must set out in a statement in panel 11 or a conveyancer’s certificate in panel 12 the facts claimed to have given rise to the proprietary estoppel, including the name of the proprietor of the registered estate against whom the equity is claimed to have arisen.

6.12 Restrictive covenants in leases

Notice cannot be entered in the register in respect of a covenant that relates to the demised premises - unless it is a restrictive covenant by the tenant in favour of someone other than the landlord, in which case notice can be applied for in the same way as a restrictive covenant that does not affect the demised premises (see below).

On registration of a person as proprietor of a leasehold estate, that estate is vested in them with all interests subsisting for the benefit of the estate but subject to all liabilities and obligations, including covenants, incident to that estate. However, where a restrictive covenant in a lease does not relate to the demised premises it may be protected by the entry of an agreed notice or unilateral notice in respect of the affected estate. If you are applying for an agreed notice, see Applying for an agreed notice. Your application must be accompanied by a certified copy of the lease containing the restrictive covenant. The consent of the registered proprietor, if available, should be provided. If you are applying for a unilateral notice, see Applying for a unilateral notice. Form UN1 must be competed with a statement in panel 11 or a conveyancer’s certificate in panel 12 setting out the details of the restrictive covenant and the lease in which it is contained, including the date of the lease and the parties. Confirmation should be given that the restrictive covenant does not relate to the demised premises.

6.13 Pending land actions

A pending land action is an action or proceeding in court relating to land or any interest in or charge on land. An action that relates to an undivided share under a trust of land is not a pending land action.

A pending land action may be protected by agreed notice or unilateral notice. If you are applying for an agreed notice, see Applying for an agreed notice. Your application must include a certified copy of the sealed claim form and notice of issue. If you are applying for a unilateral notice, see Applying for a unilateral notice. Form UN1 must be completed with a statement in panel 11 or a conveyancer’s certificate in panel 12 setting out the details of the pending land action, including particulars of the court, confirmation that the action is a pending land action, the full court reference and the parties.

A pending land action may sometimes be protected by restriction, in which case you must apply in form RX1. The form of the restriction will depend on the nature of the claim made in the pending land action. The application should be accompanied by a certified copy of the claim form and notice of issue. The statement in panel 12 of form RX1 or conveyancer’s certificate in panel 13 must be completed, setting out details of the pending land action as for a unilateral notice. Generally, however, application to protect a pending land action should be by way of notice (see Property adjustment orders for further guidance, if your application relates to a property adjustment order).

6.14 Writs or orders affecting land

Any writ or order affecting land, or made to enforce a judgement, may be protected by agreed notice or unilateral notice. A writ or order that relates to an undivided share under a trust of land is not an interest affecting land for this purpose. If you are applying for an agreed notice, see Applying for an agreed notice. Your application must include a certified copy of the writ or order. If you are applying for a unilateral notice, see Applying for a unilateral notice. Form UN1 must be completed with either a statement in panel 11 or conveyancer’s certificate in panel 12 setting out details of the writ or order, including particulars of the court, the date of the order, the full court reference and the parties.

Such a writ or order may also be protected by restriction, in which case you must apply as per Applying for a restriction. The form of the restriction will depend on the nature of the writ or order. Rule 93 of the Land Registration Rules 2003 details the form of restriction to which people holding the benefit of certain orders will be entitled.

Where the order has the effect of creating a trust of land, the interest cannot be protected by the entry of a notice. Generally, you may apply in form RX1 for a Form A restriction if one has not already been entered in the register. A Form A restriction ensures that any capital money must be paid to 2 trustees or a trust corporation. The statement in panel 12 of form RX1 or conveyancer’s certificate in panel 13 must be completed, setting out details of the order.

A beneficiary under a trust of land created by such a writ or order may, however, wish to apply for an additional form of restriction and will be able to do so in certain circumstances. For example, if the effect of the order is that the registered proprietors hold on trust of land for the beneficiary and for themselves, the beneficiary may apply for a restriction in Form II.

An application for such a restriction must be made as per Applying for a restriction and accompanied by a certified copy of the writ or order. The statement in panel 12 or conveyancer’s certificate in panel 13 must be completed, setting out how the beneficiary’s interest under the trust of land has arisen through the writ or order made.

Note that payment of capital money to 2 trustees or a trust corporation will still overreach the beneficiary’s interest under the trust of land and a restriction in Form II will not prevent overreaching.

6.15 Partnerships

Entry of a restriction in Form A is obligatory on the registration of the estate in the names of the partners, as the beneficial interests will be held under a tenancy in common.

The partners may additionally wish to apply as per Applying for a restriction for the entry of a restriction in Form Q. The consent of the registered proprietors to the entry of the restriction should be provided in form RX1 or a conveyancer’s certificate given that such consent is held. The Form Q restriction requires that the personal representatives of the named registered proprietor must, in the event of the proprietor’s death, consent to the registration of a disposition by the survivor(s). It is acceptable to name multiple proprietors in the restriction, but you may not word the restriction in such a way that it would result in a disposition being caught only after the death of all registered proprietors – the names must be separated by ‘or’ rather than ‘and’.

6.16 Overage

An overage agreement (or agreement to pay further consideration) may be secured by a legal or equitable charge.

If it is a term of the agreement that the registered proprietor’s powers to make the disposition will be limited you may also or alternatively apply as per Applying for a restriction for the entry of a restriction to prevent a breach of this term. Unless the registered proprietor has consented to the entry of the restriction, the application must be accompanied by a certified copy of the overage agreement. The statement in panel 12 or form RX1 or conveyancer’s certificate in panel 13 must be completed. Give details of the agreement and identify the provision in the agreement limiting the registered proprietor’s ability to make any disposition. Some overage agreements impose an express obligation on a party to apply for a standard form restriction, the terms of which are set out in the agreement.

6.17 Vendor’s lien

A vendor’s lien is an interest arising when a binding contract for the sale of land is made. As the interest affects the estate before the transfer is made, it must be protected before the transfer is registered if the purchaser is not to take free. A vendor’s lien may be protected by agreed notice or unilateral notice. If you are applying for an agreed notice, see Applying for an agreed notice. Your application must include a certified copy of the contract. If you are applying for a unilateral notice, see Applying for a unilateral notice. Form UN1 should be completed with a statement in panel 11 or a conveyancer’s certificate in panel 12 setting out details of the contract, including the date of the contract and the parties and confirming that the vendor has the benefit of a lien arising from that contract.

A vendor’s lien cannot normally be noted after the disposition to the purchaser has been registered, unless the vendor claims that the lien has overriding status (for example, because the vendor was in actual occupation, within Schedule 3, paragraph 2 of the Land Registration Act 2002) and so its priority is protected by section 29(2)(a)(ii). Such a claim should be specifically stated in the application (which should be made in form UN1).

6.18 Property adjustment orders

An application for a property adjustment order affecting the legal estate is a pending land action and may be protected by agreed notice or unilateral notice. If you are applying for an agreed notice, see Applying for an agreed notice. Your application should be accompanied by a copy of the petition or answer claiming relief. If you are applying for a unilateral notice, see Applying for a unilateral notice. Form UN1 must be completed with a statement in panel 11 or a conveyancer’s certificate in panel 12 setting out the details of the application for the property adjustment order (including particulars of the court, the full court reference, the fact that the applicant is applying for a property adjustment order under the Matrimonial Causes Act 1973 or the Civil Partnership Act 2004 and the parties).

An application for a property adjustment order which does not affect the legal estate is not a pending land action and cannot be protected by notice. An example would be an application for an order merely in respect of a beneficial interest held by the other spouse or civil partner under a trust of land – in other words, where there is no dispute as to the existence of the trust, merely as to who benefits from it. By contrast, an application where the existence of the trust is in dispute (for example, an application for a declaration that a sole proprietor holds on an implied trust), or an application for the appointment of a trustee, is arguably a pending land action and so may be protected by notice. See Godfrey v Torpey and others [2006] EWHC 1423 (Ch) (a claim for a declaration that a property registered in the sole name of company A was held by it as nominee for B was a pending land action).

Once the court has made a final order, there will no longer be a pending action. A property adjustment order affecting the legal estate may be protected by agreed notice or unilateral notice, though in most cases it will be more appropriate to complete and register a disposition giving effect to its terms. If you are applying for an agreed notice, see Applying for an agreed notice. Your application should be accompanied by a certified copy of the order. If you are applying for a unilateral notice, see Applying for a unilateral notice. Form UN1 must be completed to include a statutory declaration in panel 11 or conveyancer’s certificate in panel 12 setting out details of the order, including particulars of the court, the date of the order, the nature of the order made, the full court reference and the parties.

A property adjustment order that has the effect merely either of creating a trust of land, or of declaring the beneficial interests under a trust, cannot be noted. Such an order may be protected by restriction, where appropriate, see Applying for a restriction. The form of the restriction will depend upon the nature of the order.

Where the order has the effect of creating a trust, or of severing an existing beneficial joint tenancy, application should generally be made for a restriction in Form A, if a restriction in Form A has not already been entered in the register. The application must be in form RX1. A Form A restriction ensures that any capital money must be paid to 2 trustees or a trust corporation. The application must be accompanied by a certified copy of the order. The statement in panel 12 or conveyancer’s certificate in panel 13 must also be completed, setting out details of the order.

6.19 Severance

Where a registered estate in land is transferred to 2 or more people, then, unless the transferees declare on application for registration that they are holding the property on trust for themselves as beneficial joint tenants, the registrar will enter a restriction in Form A.

Where a beneficial joint tenancy is severed, a proprietor of a registered estate must apply for a restriction in Form A. To apply, you should include the ‘severance of joint tenancy’ transaction in your application and upload form SEV or form RX1. Unless all the registered proprietors have signed the SEV or RX1, or all the registered proprietors are listed on the form as the applicants, or the consent of all the registered proprietors is given in form RX1, evidence of severance will be required. If evidence of severance is required, the application should be accompanied by either a certified copy of a deed of declaration stating the intention to sever the joint tenancy and hold as tenants in common or the notice of severance served under section 36(2) of the Law of Property Act 1925, bearing a signed acknowledgement of receipt by the addressee. If the addressee’s acknowledgement of receipt cannot be produced, the statement in panel 12 or conveyancer’s certificate in panel 13 of form RX1, or the appropriate statement in panel 7 of form SEV, should be completed to confirm that notice was given in accordance with section 36(2) of the Law of Property Act 1925 to the other joint tenant(s). Alternatively, a conveyancer may certify that they hold evidence of entitlement to apply for the restriction.

Form SEV can only be used where there has been a severance of a beneficial joint tenancy either by agreement between the proprietors or by the service of notice by one of the proprietors on the others. If a Form A restriction is required in other circumstances (including where severance has occurred in a different way such as on the bankruptcy of a joint proprietor) you must apply using form RX1.

6.20 Agreement for lease

An agreement for lease may be protected by agreed notice or unilateral notice. If you are applying for an agreed notice, see Applying for an agreed notice. Your application should be accompanied by a certified copy of the agreement , together with the consent of the registered proprietor where available. If you are applying for a unilateral notice, see Applying for a unilateral notice. Form UN1 should be completed with a statutory declaration or conveyancer’s certificate setting out in a statement in panel 11 or a conveyancer’s certificate in panel 12 details of the agreement, including the date of the contract and the parties.

If the agreement for lease limits the registered proprietor’s powers to make a disposition, you may also be able to apply for a restriction to prevent a breach of this provision, see Applying for a restriction. The application would normally be for a restriction in Form L referring to the relevant provision of the agreement. Unless the registered proprietor has consented to the entry of the restriction, the application must be accompanied by a certified copy of the agreement. The statement in panel 12 or form RX1 or conveyancer’s certificate in panel 13 must be completed, setting out details of the contract and of the provision in the contract limiting the registered proprietor’s ability to make any disposition.

6.21 Prevention of fraud

6.21.1 Private individuals

Where it is believed that there may be an attempted fraudulent disposition against a property owned by private individuals, application may be made for entry of a restriction in Form LL. This provides protection against forgery by requiring a conveyancer to certify that they are satisfied that the person who executed the document submitted for registration as disponor is the same person as the proprietor. See Protect your land and property from fraud for more information.

Please see Restriction in Form LL for our requirements where a certificate is being given for this restriction.

Where application is not made by or with the consent of either a sole registered proprietor or one of two or more registered proprietors, evidence should be lodged as to the applicant’s entitlement to apply under section 43(c) of the Land Registration Act 2002.

Where application to enter the restriction is made by one of two or more registered proprietors, notice of the application will be served on the other proprietor(s). See Notifiable applications.

Form RQ is available to request that the registrar enters a Form LL restriction for properties in private individual ownership. These requests must be made in isolation and should not form part of a larger application (we do not treat requests on a form RQ as notifiable applications).

Application for entry of a Form LL forming part of a larger application should be applied for as per Applying for a restriction.

6.21.2 Companies

Where a property is owned by a company, no standard form of restriction exists. However, a non-standard restriction may be applied for, requiring a conveyancer to certify that the disponor is the same company as the proprietor. The restriction can also require a certificate that reasonable steps have been taken to ensure that anyone who executed a deed on the company’s behalf held their stated office at the time of execution.

An example of an acceptable form of wording for a non-standard company fraud restriction is as follows:

RESTRICTION: No disposition of the registered estate by the proprietor of the registered estate is to be completed by registration without a certificate signed by a conveyancer that the conveyancer is satisfied that (1) the company which executed the document submitted for registration as disponor is the same company as the proprietor, and (2) reasonable steps have been taken to establish that each person who signed as an officer of the company held the stated office at the time of execution.

Form RQ(Co) is available to request the registrar to enter such a restriction for properties in company ownership and sets out the wording of the restriction that may be requested (as above). These requests must be made in isolation and should not form part of a larger application.

Application for entry of a company counter-fraud restriction forming part of a larger application should be applied for as per Applying for a restriction.

6.22 Charges under section 22 of the Health and Social Services and Social Security Adjudications Act 1983 (‘the 1983 Act’)

Because of changes made by the Care Act 2014, local authorities in England cannot take charges under the 1983 Act on and after 1 April 2015 regardless of when the liability arose. Changes made by the Social Services and Well-being (Wales) Act 2014 mean that local authorities in Wales cannot take charges under the 1983 Act on and after 6 April 2016.

A local authority which has provided a person (‘the resident’) with ‘Part III accommodation’ (broadly speaking, accommodation in a care home) may recover charges assessed as due for it by creating a charge under section 22 of the 1983 Act on the interest which the resident holds in any one parcel of land. It does so by making a written declaration to that effect.

Where the resident is the sole beneficial owner of the property charged, the charge will take effect as a charge of the legal estate and, where the estate is registered, may be registered as a registered charge, or noted under section 32 of the Land Registration Act 2002. If you are applying for an agreed notice, see Applying for an agreed notice. Your application should include a certified copy of the declaration of charge. Additionally, you should provide a statement, either in the charge itself or in an accompanying letter, that the authority has made no declaration in relation to any other parcel of land in which the resident has a beneficial interest. If you are applying for a unilateral notice, see Applying for a unilateral notice. You must lodge form UN1 completed with a statement in panel 11 or a conveyancer’s certificate in panel 12 setting out details of the charge, including the date, the name of the person whose interest is charged, the property charged and confirmation that no declaration has been made in respect of other land.

Where the resident is a joint owner, the charge affects only his or her beneficial interest, not the registered legal estate.

A charge on the beneficial interest of an equitable tenant in common is a derivative interest - see Interests under trusts for an explanation of this. For the reasons explained in that section, the only restriction that the local authority can apply for in this case is a restriction in Form A to secure that the interest is overreached. If (as will usually be the case where the proprietors are beneficial tenants in common) there is already a Form A restriction in the register, the local authority’s interest is already protected and no further application seems to be possible.

Where the resident is an equitable joint tenant, sections 22(5) and 22(6) of the 1983 Act make specific provision as to what happens. Normally, a charge on the beneficial interest of one joint tenant would automatically sever the joint tenancy. However, section 22(5) provides that the joint tenancy is not severed, but the charge will be for an amount not exceeding the value of the interest which the resident would enjoy if the tenancy were severed. Section 22(6) explains what happens when the resident dies. The interest of the surviving joint tenant or tenants becomes subject to a charge for an amount not exceeding the amount of the charge on the resident’s former interest.

Where it takes a charge under section 22 of the 1983 Act on the interest of a beneficial joint tenant, therefore, a local authority may apply for a restriction in Form MM. The restriction only affects dispositions made after the resident has died or has become a sole proprietor. Before then, joint proprietors can freely dispose of the property, overreaching the beneficial interests, including the local authority’s charge. The restriction allows for 3 possibilities.

If there is more than one surviving joint proprietor on the death of the resident, they can overreach the local authority’s interest in the usual way
If there is a sole surviving proprietor, the charge would now appear to attach to the legal estate vested in that proprietor, so that it can be noted or registered
It may be possible to show that no charge under section 22 is subsisting

Application for a restriction should be made as per Applying for a restriction. The application must be accompanied by a certified copy of the declaration of charge. The statement in panel 12 or form RX1 or conveyancer’s certificate in panel 13 must be completed, setting out details of the charge. It should be confirmed that no such declaration has been made in respect of the resident’s interest in any other parcel of land.

6.23 Charges under section 68 of the Social Services and Well-being (Wales) Act 2014 (‘the 2014 Act’)

A Welsh local authority may enter into a deferred payment agreement with a person who is required (or is going to be required) to pay a charge under section 59 of the 2014 Act in respect of care and support.

Where the deferred payment agreement contains a legal charge of the legal estate and the estate is registered, it may be possible for, and in some cases section 27 of the Land Registration Act 2002 expects, the charge to be registered as a registered charge. It might otherwise be noted under section 32 of the Land Registration Act 2002. If you are applying for an agreed notice, see Applying for an agreed notice. Your application should be accompanied by a certified copy of the deferred payment agreement containing the charge. If you are applying for a unilateral notice, see Applying for a unilateral notice. Form UN1 must be completed with a statement in panel 11 or a conveyancer’s certificate in panel 12 setting out the details of the deferred payment agreement containing the charge, including the date, the parties to the deferred payment agreement, the property charged and confirmation that the deferred payment agreement contains a charge on that property.

Where the person entering into a deferred payment agreement is a joint owner, and their co-registered proprietors have not entered into the charge, the charge affects only their beneficial interest, not the registered legal estate.

Where the resident is an equitable joint tenant, the creation of the charge will sever the beneficial joint tenancy. As explained above, the charge on the beneficial interest of an equitable tenant in common is a derivative interest and it is difficult to see how the local authority will be able to satisfy the registrar that they have sufficient interest under section 42(1) of the Land Registration Act 2002 for any restriction other than a restriction in Form A.

6.24 Charges under section 71 of the Social Services and Well-being (Wales) Act 2014 (‘the 2014 Act’)

Section 71 of the 2014 Act allows a Welsh local authority to create a charge in its own favour over a person’s interest in land in Wales or England if that person fails to pay a sum recoverable by the local authority under Part 5 of the 2014 Act in order to secure the sum due.

Where the resident is the sole legal and beneficial owner of the property charged, the charge will take effect as a charge of the legal estate and it may be possible for, and in some cases section 27 of the Land Registration Act 2002 expects, the charge to be registered as a registered charge. It might otherwise be noted under section 32 of the Land Registration Act 2002. If you are applying for an agreed notice, see Applying for an agreed notice. Your application should be accompanied by the declaration of charge or a certified copy of it. Additionally a statement, either in the charge itself or in an accompanying letter, that the authority has made no declaration in relation to any other parcel of land in which the resident has a beneficial interest should be provided. If you are applying for a unilateral notice, see Applying for a unilateral notice. Form UN1 must be completed with a statement in panel 11 or a conveyancer’s certificate in panel 12 setting out details of the charge, including the date, the name of the person whose interest is charged, the property charged and confirmation that no declaration has been made in respect of other land.

Where the resident is one of joint owners, the charge affects only their beneficial interest, not the registered legal estate.

A charge on the beneficial interest of an equitable tenant in common is a derivative interest - see Interests under trusts for an explanation of this. For the reasons explained in that section, the only restriction that the local authority can apply for in this case is a restriction in Form A to secure that the interest is overreached. If (as will often be the case where the proprietors are beneficial tenants in common) there is already a Form A restriction in the register, no further application seems to be possible.

Where the resident is an equitable joint tenant, sections 71(4), 71(5) and 71(6) of the 2014 Act make specific provision as to what happens. Normally, a charge on the beneficial interest of one joint tenant would automatically sever the joint tenancy. However, section 71(4) provides that the joint tenancy is not severed, but the charge will be for an amount not exceeding the value of the interest which the resident would enjoy if the tenancy were severed. Sections 71(5) and 71(6) explain what happens when the resident dies. The interest of the surviving joint tenant or tenants becomes subject to a charge for an amount not exceeding the amount of the charge on the resident’s former interest.

Where a Welsh local authority takes a charge under section 71 of the 2014 Act on the interest of a beneficial joint tenant, it can apply for a standard Form MM restriction. This follows the changes to the wording of rule 93(x) and Form MM in Schedule 4 of the Land Registration Rules 2003 made by The Care and Support (Charging) (Wales) and Land Registration Rules (Miscellaneous Amendments) Regulations 2020 on 6 April 2020. Previously only a non-standard restriction was possible.

The Form MM restriction will only affect dispositions made after the resident has died or has become a sole proprietor. Before then, joint proprietors can freely dispose of the property, overreaching the beneficial interests, including the local authority’s charge. The restriction allows for 3 possibilities.

If there is more than one surviving joint proprietor on the death of the resident, they can overreach the local authority’s interest in the usual way.
If there is a sole surviving proprietor, the charge would now appear to attach to the legal estate vested in that proprietor, so that it can be noted or registered.
It may be possible to show that no charge under section 71 is subsisting.

Application for a restriction should be made as per Applying for a restriction. The application must be accompanied by a certified copy of the declaration of charge. The statement in panel 12 of form RX1 or conveyancer’s certificate in panel 13 must be completed, setting out details of the charge. It should be confirmed that no such declaration has been made in respect of the resident’s interest in any other parcel of land.

6.25 Landlords and management companies

An agreement with a landlord or management company, whether in a lease, deed of covenant, transfer or otherwise, which expressly limits the registered proprietor’s powers to make a disposition may be reflected by entry of a restriction. However, in view of the possible inconvenience and expense that may be caused to both parties in complying with it, careful consideration should always be given to whether a restriction is really required. Application for the restriction must be applied for as per Applying for a restriction. Where the restriction is in respect of covenants contained in a lease, application may be made in clause LR13 of a prescribed clauses lease.

For further information on restrictions on leasehold titles, see practice guide 19A: restrictions and leasehold properties

6.26 Mental capacity

Where a property is solely owned, the deputy appointed by the court under the Mental Capacity Act 2005 (the 2005 Act) may apply for a restriction preventing the disposition of the land or registered charge except under an order of the court. The restriction applied for should be in standard Form RR and the application should be accompanied by evidence of the deputy’s power to apply for entry of the restriction. Where an order under the 2005 Act gives the deputy a general power this will also entitle them to apply for this restriction. (The restriction will not prevent registration of a subsequent sale by the deputy if the deputy’s appointment authorises this, but will otherwise protect the property).

An attorney cannot apply for a standard Form RR restriction. However, where the donor is a sole proprietor, the attorney may apply for the following non-standard restriction, where the donor/proprietor has lost capacity, but had previously executed a power of attorney:

RESTRICTION: No disposition of the registered estate by the proprietor of the registered estate is to be completed by registration without a certificate signed by a conveyancer that the conveyancer is satisfied that the person(s) who executed the document submitted for registration as attorney(s) for the proprietor of the registered estate is/are the same person(s) as the attorney(s) named in the lasting/enduring power of attorney [date].

The attorney should apply for the restriction in the name of the registered proprietor and the application should be accompanied by evidence of the power of attorney (either an enduring power of attorney, duly registered or a registered lasting power of attorney) and a conveyancer’s certificate that the donor/proprietor has lost capacity and that the power of attorney has not been revoked.

If the person who lacks capacity (P) is a joint proprietor/trustee, they should be discharged or a new trustee appointed. But if they are entitled to a beneficial interest in possession then neither a deputy nor any co-proprietor/trustee can replace P as trustee and the Court of Protection must give leave to make the appointment pursuant to section 36(9) of the Trustee Act 1925. If a new trustee is appointed to replace P, the trustee may apply for a restriction in standard Form SS preventing a disposition during the lifetime of P without the consent of the Court of Protection.

6.27 Missing persons

A person who disappears is presumed to be alive until the contrary is declared. But while they are missing their property may effectively be left ‘ownerless’ with serious implications for them and their dependants. To resolve this problem the Guardianship (Missing Persons) Act 2017 (‘the Act’) provides a statutory framework for a person (a guardian) to be appointed by the High Court to deal with the missing person’s property and financial affairs. The Act is supported by Regulations and a Code of Practice.

Where a guardian is appointed by the High Court an application can be made for the following non-standard restriction where the missing person is a sole registered proprietor:

RESTRICTION: No disposition of the registered estate executed in the name and on behalf of [name of the missing person] is to be completed by registration unless either (a) made by [name of the guardian(s) appointed for the missing person] of [address for the guardian(s)] appointed and authorised by an order of the High Court dated [Date of guardianship order], reference [court reference], pursuant to the Guardianship (Missing Persons) Act 2017, or by a subsequent order, or (b) accompanied by a certificate by a conveyancer confirming that any such appointment (including any variation thereof) has come to an end.

The guardian can represent the missing person in relation to the missing person’s beneficial interest in the trust property (as opposed to acting in respect of the whole of the trust property). However, because a guardian “may not exercise a power vested in the missing person as a trustee in relation to another person’s property” (section 6(6)(b) of the Act), the only applications that are likely to be acceptable are applications for a restriction relating to the protection of trust interests such as a Form A restriction or a Form II restriction, or the non-standard restriction shown above.

A guardian may, alternatively, or in addition to the restriction, apply for an entry to be made in the register confirming their appointment as guardian. Any application should include written confirmation of the application, as well as uploading a certified copy of the court order appointing the guardian.

A guardian cannot apply for a notice to be entered in the register as their appointment does not create a burden which can be protected by way of a notice.

6.28 Wills and intestacy

A residuary beneficiary does not have a beneficial interest in any assets of the deceased’s estate during the course of the administration, but merely a right to have the estate administered properly. A restriction in favour of the residuary beneficiary (for example in Form N or II) cannot therefore be entered against a registered property of the deceased under section 42(1)(c) of the Land Registration Act 2002, since the residuary beneficiary has no right or claim in relation to a registered estate or charge to protect.

However, a residuary beneficiary may be able to apply for a Form C restriction in limited circumstances where the powers of a personal representative are limited by section 8 of the Trusts of Land and Appointment of Trustees Act 1996.

Practice guide 19: notices, restrictions and the protection of third-party interests in the register

6. Appendix A: some possible means of protection for common third-party interests