Fiona Heald provides a summary of what was covered in the recent Section member webinar, ‘Restriction on title: top tips for private client and property lawyers’
Both private client and property solicitors come across restrictions on title daily, so the Property and Private Client Solicitors Sections joined forces to hold a webinar to cover both perspectives. Myself, Philip Askew and Sarah Cookson discussed different scenarios affecting both perspectives.
Considerations
Private client solicitors are primarily looking to make sure that the equity is protected, and that it is clear from the title who gets what, and who should sign to sell the property.
Property lawyers usually must add in the restrictions, or remove them on sale, so they need to know why they are there. They also need to know to whom they should send the net proceeds of sale. It is not enough to send it to one owner and ask them to divide the funds. Looking at restrictions as early into the process as possible will allow time for any investigations to occur, questions to be asked and documentation found.
It is also important to note the different types of ownership; just because someone’s name is down on the title as legal owner it does not mean that they receive the net proceeds of sale.
Restrictions
We also considered what restrictions should be in place when the owners have decided to own the property as tenants in common. This can have important knock-on effects for executors and trustees, who need to make sure that the right proceeds of a sale are paid to the right beneficiaries.
Looking at this area of law is even more important with the increase in blended families, and family structures that differ from a nuclear family. These issues do not just arise when finalising the estate, but also during estate administration – it is crucial to make the right arrangements for surviving partners and ensure that the deceased has control over what happens with their assets.
We also looked at the role of the Trust Registration Service (TRS), what to do when there is a deputyship and what happens when a party is mentally incapable.
Other issues covered in the discussion included:
- what the land registry will allow you to record on the title now and how to protect interests considering this,
- the importance of checking the TRS that registration has occurred for the will trust and for the property trust too, and
- understanding how to protect the title on death or in the event of mental incapacity.
