Preventing a sole owner disposing of or selling their home

The ways for a non-owning spouse or civil partner to prevent the sale include registering pending legal proceedings or their home rights.

This content applies to England & Wales

Introduction

Where a matrimonial home is owned by a sole owner, they do not need the consent of anyone else to take action concerning the property, for example to sell it or remortgage it, even where there is a spouse or civil partner who doesn't own the home and has home rights (previously known as matrimonial home rights) of occupation. A spouse or civil partner who doesn't own the home may, therefore, need to take action to protect their home rights. This could be done by registering their home rights on the property, registering pending legal proceedings or obtaining a court order or an injunction.

Protecting home rights by registration

Home rights are statutory rights, granted on a purely personal basis to a spouse or civil partner, protecting their right to live in the matrimonial home. They give the spouse or civil partner the right to continue occupying the home but do not give a financial stake (beneficial interest) in the home. Registering home rights by placing a charge on a property indicates to a buyer or lender that someone other than the owner has an interest or right in or over a property. Charges can include loans on property, a financial interest in a property or a right of occupation. Charges are registered in accordance with the Family Law Act 1996 as amended by the Civil Partnership Act 2004 for registered land, and the Land Charges Act 1972 for unregistered land.

The charge will be binding on third parties, ie if the property were sold or remortgaged it would still be subject to the registered charge and the new owner or lender would have to honour it. It also means that a lender must notify the spouse or civil partner who doesn't own the home of any possession proceedings.[1] If the sole owner spouse or civil partner tries to sell the home without knowledge of their spouse or civil partner, the registered right to occupy will show up in the searches made by the prospective buyer, who is not likely to want to proceed with a purchase in this situation. Where a house is sold with vacant possession, there is further legal protection for the spouse or civil partner who doesn't own the home, as it is a term of the contract that the seller will ensure that registration of a spouse's or civil partner's rights of occupation is cancelled. In practice, this would mean that the spouse or civil partner could continue to occupy until the registration of rights of occupation is cancelled.

Registering home rights as a charge on the property

This is a simple process that can be done without a solicitor. The procedure is different depending on whether the land is registered or unregistered.

To find out whether the land is registered or unregistered, it is necessary to fill in Land Registry form SIM (available online or from a law stationer) and send it to the appropriate District Land Registry Office with the required fee.

Registered land

Rights of occupation can be registered with the Land Registry. They can be registered either as a notice or a restriction.

A notice is registered in the charges register. Although it cannot prevent a disposal of the property, it informs the purchaser that any purchase would be subject to the registered interest. If the notice is unilateral, the owner's consent is not needed but they will be notified of the application[2] after the entry has been made. To register a notice, the spouse or civil partner who doesn't own the home will need to complete Land Registry form HR1 and send it to the appropriate District Land Registry Office. There is no fee.

The registerable rights of the spouse or civil partner who doesn't own the home under the Family Law Act 1996 come to an end when the marriage or civil partnership is terminated. The court may order that the rights continue after termination[3] and, if this happens, it is essential that a renewed application is made on Land Registry form HR2, enclosing the original or office copy court order. Again, there is no fee. If such an application is not made, the original registration may be cancelled by the other party, proving that the marriage or civil partnership has been terminated.

A restriction prevents disposal of the property. However, as it can only be entered with the owner's consent, it is unlikely to be of use where there is a relationship breakdown.

For more information on notices, restrictions and the protection of third party interests see the Land Registry's Practice Guide 19.

Unregistered land

The charge to be registered is known as a Class F land charge and is registered on the Land Charges Register at the Land Charges Department.

To register the charge, it is necessary to complete Land Charges form K2. As all charges made in the Land Charges register are registered against the name of the land owner and not against the land itself, it is essential that the name is exactly correct, ie the full name of the owner as recorded on the title deeds. Failure to use the correct name, eg by omitting a middle name, could result in the charge being totally ineffective. Once the form and the fee have been sent to the Land Charges Department, the charge will be registered.

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 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 their 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.

Spouse or civil partner takes legal proceedings

There may be situations where a spouse or civil partner who doesn't own the home takes legal proceedings in relation to the solely owned property. This might be, for example, an application for a property adjustment order under the Matrimonial Causes Act 1973 or an application for a property transfer under the Children Act 1989. In this case, they register the proceedings, either as an alternative to or in addition to registering a home right of occupation.

Registered land

Where court action has been started but not yet resolved, the spouse or civil partner who doesn't own the home can, if they wish, register their interest at the Land Registry by way of notice. This can be in addition to or as an alternative to registering their home rights. This then serves to warn any prospective purchaser or lender of the interest. Often a notice will be used, but a restriction can be used with the consent of the owner. The procedure is similar to that used when registering home rights. For more information see the Land Registry's Practice Guide 19.

Unregistered land

Where court action has been started but not yet resolved, the spouse or civil partner who doesn't own the home can, if they wish, register the proceedings as a pending land action.[4] This has the effect of giving notice to any buyer or lender of the rights of the spouse or civil partner who doesn't own the home, 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.

Obtaining an injunction pending legal proceedings

In some situations 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 the spouse or civil partner to continue to occupy the home would depend on the circumstances of the case.[5]

Bankruptcy

In the event of one partner becoming bankrupt the interests of the bankrupt's creditors take precedence even if the other partner opposes an application for an order for sale.[6] An order for sale may be deferred in the interest of the partner or children but this should, except in truly exceptional circumstances, be only for a period of months rather than years.[7]

For more information about what entries may be made on the register of a title where the proprietor, or one of the proprietors, is a person subject to bankruptcy proceedings see Land Registry's Practice Guide 34.

Last updated: 23 February 2021

Footnotes

  • [1]

    s.56 Family Law Act 1996.

  • [2]

    s.35(1)(a) Land Registration Act 2002.

  • [3]

    s.33(5) Family Law Act 1996.

  • [4]

    s.17(1) Land Charges Act 1972.

  • [5]

    s.38 County Courts Act 1984; s.37 Supreme Courts Act 1981.

  • [6]

    s.335A(3) Insolvency Act 1986; Avis v Turner (Trustee in Bankruptcy) and Avis [2007] EWCA Civ 657; Nicholls v Lan (Trustee in Bankruptcy) and Nicholls [2006] EWHC 1255.

  • [7]

    (1) Grant (2) Cork (as joint trustees in bankruptcy of Baker) v (1) Baker (2) Baker [2016] EWHC Civ 1782 (Ch); In the matter of Haghighat (a bankrupt) sub nom Brittain (trustee of the property of the bankrupt) v (1) Haghighat (2) Haghighat, [2009] EWHC 90 (Ch).