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Leasing or buying from an LPA or fixed charge receiver—checklist

Leasing or buying from an LPA or fixed charge receiver—checklist Title When taking a transfer from a fixed charge receiver, the title deeds should include: • the original or a certified copy of legal charge or mortgage under which the receiver has been appointed • a certificate from the chargee (or their conveyancer) that the power of appointment under the legal charge or mortgage has arisen • the original or a certified copy of the deed of appointment of the receiver • a certified copy of the receiver’s notice of acceptance of the appointment (the original will be held by the chargee) All of the above items will be required by HM Land Registry when registering the transfer to the buyer. The charge will normally be registered against the title to the property, but HM Land Registry will check that it: • has been registered at Companies House • has been properly executed • contains provision to allow the receiver to be appointed and to carry out the disposition Most...

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Overreaching by a mortgagee

Overreaching is a statutory mechanism available to a mortgagee (among others) to confer title on the buyer free from charges and encumbrances ranking subsequent to the mortgagee’s security. Overreaching is also available in receivership sales, by ensuring that the mortgagee, rather than the receiver executes the transfer of the property to the buyer.Overreaching can also occur in the context of a mortgagee taking security for repayment of a loan from the trustees of a trust. The mortgagee will be concerned that the security document granted to it by the trustee will overreach the beneficial interest of the beneficiaries of the trust. For more information, see Practice Notes: Enforcement issues for trust property and Overreaching—sales by trustees of land.Buyer’s requirementsWhen taking an appointment, a receiver should consider the requirements of a potential buyer. Usually, a buyer will want to acquire a property free from any charges, including the charge in favour of the selling mortgagee and any other charges registered on the title.The problem is how to satisfy a buyer where...

Challenging lifetime dispositions

Challenging lifetime dispositions The nature of disputes as to lifetime dispositions Particularly where an estate appears to be smaller than anticipated, personal representatives (PRs) and beneficiaries often have queries and concerns about dispositions made by the deceased during their lifetime. These dispositions may include gifts, asset sales which appear to have been made at an undervalue, loans on favourable terms, solely owned assets which were transferred into joint names and deathbed gifts. Where the deceased's affairs were being dealt with by an attorney or deputy the focus of investigations may need to include them. Challenging lifetime dispositions There are a number of bases upon which a lifetime disposition may be challenged. Such claims may involve allegations that: • the deceased lacked capacity (including concerns relating to potential abuse by an attorney or deputy) • the deceased was subjected to undue influence, and • the requirements for a valid deathbed gift (donatio mortis causa) were not met The test for capacity to make lifetime gifts and the...

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Transfer of whole by a mortgagee acting under a power of sale—TR2

Transfer of whole by a mortgagee acting under a power of sale—TR2 Precedent transfer An adaptable word version of the precedent form TR2 can be downloaded, saved or printed from this link: . Drafting notes to precedent transfer General This Precedent transfer is for use on the transfer of the whole of a registered or unregistered estate in land by a mortgagee exercising their statutory power of sale under section 101 of the Law of Property Act 1925 (LPA 1925). The form of the transfer is in HM Land Registry prescribed form TR2. If the transfer is a transfer of part of the land in a registered title, form TP2 must be used. Acting for a mortgagee on the exercise of their power of sale A mortgagee who wishes to exercise their power of sale must check that the power of sale: • exists • has arisen, and • has become exercisable The mortgagee’s power of sale becomes exercisable if one of the conditions set out in LPA 1925, s...

View the related q&as about Overreaching

Where a mortgagee in possession wishes to exercise its power of sale, would the sale overreach a unilateral notice protecting a party wall registered against the property after the registration of the mortgage?

Where a mortgagee in possession wishes to exercise its power of sale, would the sale overreach a unilateral notice protecting a party wall registered against the property after the registration of the mortgage? Section 104(1) of the Law of Property Act 1925 (LPA 1925) provides that a mortgagee exercising the power of sale conferred by the LPA 1925 may transfer the property free from all estates, interests and rights to which the mortgage has priority. This will include a unilateral or agreed notice noted on the registered title of the property, provided they are made after the date

Where a co-owner (A) of property held as tenants in common dies and the surviving co-owner (B) is one of the executors for A’s estate along with a third party (C), are B and C able to deal with the property effectively? Ie is there an issue with B being co-owner and executor for A?

Where a co-owner (A) of property held as tenants in common dies and the surviving co-owner (B) is one of the executors for A’s estate along with a third party (C), are B and C able to deal with the property effectively? Ie is there an issue with B being co-owner and executor for A? Prior to the death of co-owner, A, there were two trustees, who held the legal title to the property upon trust for the two beneficial owners (themselves). On A’s death, B became the sole trustee of the legal title but he continued to hold it upon trust for the two beneficial

View the related News about Overreaching

Public Law weekly highlights—28 November 2024

This week's edition of Public Law weekly highlights includes coverage of Matt Hancock's evidence at the UK COVID-19 inquiry. This weekly highlights further includes coverage of F v HFEA, in which the court ruled on the consent requirements for surrogacy treatment, the CJC’s review of the Pre-action Protocol on judicial review among others, and of consultations on refining the UK subsidy control regime, and on the conduct of Senedd Cymru elections. This edition further includes updates on Brexit SIs, Post-Brexit transition guidance, Constitutional and administrative law, Judicial review, Equality and human rights, Public procurement, Information law, and an Australian government consultation on automated decision making.

UKSC publishes speech on why the Supreme Court matters to Northern Ireland

The UK Supreme Court (UKSC) has published a speech by Lord Reed of Allermuir, which was presented at Belfast on 13 November 2024 on ‘Why does the UK Supreme Court matter for Northern Ireland?’. The speech highlights nine important aspects of the Supreme Court with the aim of clarifying that Northern Ireland and the Northern Irish legal system are important to the Supreme Court, and that the Supreme Court is also important to them. These aspects include, visibility, independence of the judiciary, developments under the Human Rights Act, devolution, a UK-wide final court of appeal, the Supreme Court’s international role, transparency, accessibility and open justice, and diversity, inclusion and belonging.  The speech further states that it does not mean that the Supreme Court is “activist” or is overreaching its powers. The legal principles which make up the UK constitution are laid down partly in legislation and partly in the common law. As the highest court has the final word on the interpretation of legislation and on the development of the common law,...