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Cases where action is necessary

This content applies to England & Wales

Situations where action is necessary to protect the non-owning cohabitant's beneficial interest in the home.

In some situations, the non-owning cohabitant will need to take some kind of action to prevent the owner disposing of the home without her/his knowledge. The action will be different depending whether the land is registered or unregistered.

Registered land

Most land is registered at the Land Registry. If the land is registered, this means that the Land Registry holds conclusive proof of ownership and any charges registered on the property. To find out whether or not land is registered it is necessary to complete a form and send it to the District Land Registry. A non-owning cohabitant may be able to prevent the sale or disposal of property on registered land in the following circumstances:

  • where s/he registers a beneficial interest at the Land Registry
  • where s/he is taking legal proceedings concerning the property.

Registration

A beneficial interest can be protected by a notice or restriction entered on the land register. A notice records a claimed property interest on the register.[1] Its purpose is to give notice of the interest to someone viewing the register and to give the holder of the notice priority against other transactions relating to the property.

There are two kinds of notice:

  • an agreed notice is either agreed by the registered proprietor of the land or accepted by the Land Registry, having been satisfied by the validity of the notice. While the notice is not binding proof of the validity of the interest protected, it shows that the notice has been approved by the owner or the Land Registry
  • a unilateral notice is made on the application of the person making the interest only, without evidence. S/he has only to satisfy the Land Registry that the claim is one that can be protected by a notice.

A restriction is an entry in the land register that prevents or regulates the making of a subsequent entry in the register.[2] It may be indefinite or for a specified period, and absolute or conditional (for example, on a consent). There are three kinds of application:

  • applications made with the consent of the registered proprietor, typically as part of the conveyancing process
  • compulsory applications. These are of a type that the Land Registry have to register
  • other applications. The applicant must prove that s/he has a sufficient interest in the making of a restriction. Unless there is a court order requiring the restriction to be entered, the Land Registry will notify the registered proprietor, who will then have the opportunity to dispute the making of the restriction.

A notice or a restriction may protect an overriding interest, but if the notice or restriction is later withdrawn or cancelled, the overriding protection will be lost, so advisers should not necessarily advise clients to seek the extra protection.

The most common interests affecting cohabitants, and the protection that can be sought, are as follows:

  • an interest under an implied or resulting trust or a constructive trust may only be protected by a restriction
  • an interest arising by proprietary estoppel can be protected by a notice, usually unilateral
  • a freezing order is protected by a restriction
  • a pending land action, that is a court case about property or the beneficial interest in property, can be protected by a notice, which may be agreed or unilateral, or by a restriction.

For more information on registration procedures and options, see the Land Registry's Practice Guide 19.

Taking legal proceedings

There may be situations where a non-owning cohabitant is taking legal proceedings in relation to the solely owned property. This might be, for example, an application for a property transfer under the Children Act (see the page on Solutions involving the courts for details) or an application to the court to enforce the terms of a trust under the Trusts of Land and Appointment of Trustees Act 1996. In this case, s/he should make an application to the Land Registry declaring her/his interest in the property (see above). This then serves to warn any prospective purchaser of the interest. An application is made on payment of a small fee on a form available from the Land Registry.

Unregistered land

Where the land is unregistered, the non-owning cohabitant may be able to retain her/his interest in the following circumstances:

  • by recording the beneficial interest on the title deeds of the property
  • where s/he is taking legal proceedings in relation to the property
  • by entering a caution against first registration.

Recording on title deeds

A beneficial interest can also be retained by it being recorded on the title deeds if the owner agrees, although this is not likely in most relationship breakdown situations. If the interest has been recorded, this means that the beneficial interest would survive against any loan subsequently taken out on the property or disposal by the owner.

Taking legal proceedings

There may be situations where a non-owning cohabitant is taking legal proceedings in relation to the solely owned property. This might be, for example, an application for a property transfer under the Children Act (see the page on solutions involving the courts for details) or an application for a declaration of beneficial interest under the Trusts of Land and Appointment of Trustees Act.

Where court action has been started but not yet resolved, the non-owning cohabitant can, if s/he wishes, register the proceedings as a pending land action.[3] This has the effect of giving notice to any buyer or lender of the rights of the non-owning cohabitant, and the buyer or lender will normally make sure that the action is discharged before completing any transaction. A pending land action can be registered for a small fee on a form obtainable from the Land Charges Department.

It may also be possible to obtain an injunction to prevent anything happening to the home pending the outcome of proceedings. Whether or not the court would grant an injunction to enable a non-owning cohabitant to continue to occupy the home would depend on the circumstances of the case.[4]

Caution against first registration

A beneficial interest in unregistered land may be protected by a caution against first registration. Most transactions for value are now subject to compulsory registration, which means that, in order to complete the transaction, the buyer or lender must register her/his/its interest. Where a caution against first registration has been entered, the cautioner will have the opportunity to object. Provided that the cautioner is able to establish her/his interest in the land, the transaction will not be registered, or will be registered subject to that interest. Any prudent buyer or lender will have carried out a search of the register before parting with any money, and would be unlikely to proceed unless and until the property interests had been resolved. A caution against first registration should almost always be considered when protecting unregistered land. For more information on cautions against first registration, see the Land Registry's Practice Guide 3.

[1] s.32(1) Land Registration Act 2002.

[2] s.40(1) Land Registration Act 2002.

[3] s.17(1) Land Charges Act 1972.

[4] s.38 County Courts Act 1984, s.37 Supreme Courts Act 1981.

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