SPML/LMC anyone claimed for mis selling and unfair charges?

[not another b----- letter]

Slight set back today just found out that Capstone have a consumer credit

licence, in fact they have six listed at the same address, I intend to challenge four of those licences, not going to put reason for complaint on here but have email address for anyone with a regulated loan who would like to join in.

 

Ryde

Many thanks for information on gender of Amany Attia, nice to know we are dealing with a Lady.

[scedminc]

THANKS MOLLIE,

Not being in this position didn't know how it worked,so they pile on fees as soon as you get into arrears until they get a suspended repo and or an arrangement.Meaning if you miss a payment you get stuck with an arrears fee every month (which is? ) making it virtually impossible to get back on track and make up the original missed payment,escalating eventually to repo.basically the admin for this costs £50+ per month.?

 

Ryde,

 

Once they start litigation against you and all the time it continues then they charge £115 per month (which they call a litigation management fee). So basically, all the time you have a suspended repo you get charged £115 per month.

 

Sced

[ryde]

sced

thats outrageous how can you possibly catch up on missed mortgage payments if you have to find your normal payment +£115 per month, its the road to repo.

[scedminc]

sced

thats outrageous how can you possibly catch up on missed mortgage payments if you have to find your normal payment +£115 per month, its the road to repo.

 

Absolutely. just to give a little in sight. I had about £4k of original arrears that I quite happily put my hands up to. I need to do some calculating but I have either paid off all my original arrears or am very close to it (less than £1k). However with all the charges added including solicitors fees, litigiation management fees etc my arrears are actually more than they originally were.

 

From my point of view their charges etc should not be classed as arrears and would think they are in breach of the suspended order against me as they must be using the extra I pay each month towards their charges. Or they do not know the definition of arrears.

 

I definately remember the judge saying the extra is to be paid towards arrears. They cant have their cake and eat it im afraid.

[ZillaK]

They cant have their cake and eat it im afraid.

 

..but they'll try and try.. and get away with it if they can...

 

ZillaK

[enoughisenough]

Originally posted by Ryde

 

sced

thats outrageous how can you possibly catch up on missed mortgage payments if you have to find your normal payment +£115 per month, its the road to repo.

 

 

QUITE...

 

The whole strategy from the beginning. They are only interested in asset stripping your equity. They don't give a stuff about being the mortgage business.

[enoughisenough]

Zillak

 

You are quite right. They will try and try again. It's up to us to put a spanner in the works, which is what we are constantly trying to do here...The scummers never let up and neither must we. Challenge everything, fight and fight again, report them to anyone who'll listen. Report them to anyone who should listen but doesn't. That's the FSA for those in the dark. Never give up.

[ZillaK]

@ EIE - exactly.. never give up...

 

...

 

..in regards to an earlier post on penalty or default charges also being secured..

 

I still can't find anything in my agreement that says such charges are actually secured..

 

..there are clauses that mention charges may be made to the 'account' given certain conditions.. but I thought the account is there to administer the loan/mortgage but is not the loan/mortgage itself.. so surely penalty charges are not classed as secured debts..

 

..the comments I made regarding legality of paying non-priority unsecured debts in favour of priority secured debts relates to the banking code... so unsure if that can apply here..

 

ZillaK

[enoughisenough]

Well they certainly 'enforce' their security i.e. repossess you sometimes based on alleged arrears made solely or wholly of charges. If that isn't securing the charges I don't know what is.

 

The courts are failing in their EU mandated duty to assess the fairness of the contract and its terms. If they don't at least consider whether the charges are likely to be subject to the UTCCRs then any order made by the court is almost certainly per incurium (an error) and therefore any suspended order or even a repo itself could be challenged on a very simple premise.

 

In addition to which the court must, without application, assess the overall fairness of the contract. Failure to do so makes any subsequent court order null and void, at least in law. This is something not even our own Supreme Court can wriggle out of.

Edited January 11, 2010 by enoughisenough

[ryde]

Ryde,

 

This is stated at the bottom of the tarriff and charges letter. I have an arrangement in place and have not had any arrears fees added to my account since I have managed to maintain the payments - just.

 

 

 

Mollie.

So you have to have an arrangement ie in their case I suppose a suspended repo before their fees are stopped and I PRESUME THEY LET THE WHOLE LOT BUILD UP SO THEY CAN SQUEEZE AS MUCH OUT OF YOU BEFORE TAKING YOU TO COURT.

can someone explain the exact cycle from the first missed payment.to and after court?

I had a problem with bristol and west a few years ago and said how can you expect me to catch up if you keep charging a fee every month and they stopped charging it! no such luck with this lot it seems.

[enoughisenough]

Originally posted by Ryde

 

can someone explain the exact cycle from the first missed payment.to and after court?

 

...not asking for much then!

[enoughisenough]

Correction Ryde.

 

The fees don't stop with a suspended possession order. There is no logic and no consistency. They just apply them willy -nilly knowing that the court is barely going to look at them. Take Sced above as an example of this. Paid the arrears but the arrears have gone up not down.

 

Also they add interest to the charges. This is a universally condemned practice. How do they get away with it? Because our so called regulators are rubbish, that's how. And the courts won't apply the law, which is their primary function, because they are so biased in favour of the honorouble lender. Any inconvenient rights we may have, along with any inconvenient lender obligations are ignored. The Civil Justice Council needs a good kick to put them in the picture here.

[enoughisenough]

Just bumping the LR issue...

 

GET YOUR RESTRICTIONS IN!!!

[ZillaK]

Just bumping the LR issue...

 

GET YOUR RESTRICTIONS IN!!!

 

..apologies if I'm a bit slow or have missed something..

 

..but what do you mean?

 

ZillaK

[enoughisenough]

ZillaK

 

 

see this post...

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2680698.html

 

 

 

...and further posts by Ryde and others on this issue.

 

Hope that helps. EiE.

[ZillaK]

thanks EIE..

 

.. just off the dog and bone to LR who didn't seem to know what I should do specifically other than to refer to LR Practice Guide 19..

 

.. I'm currently reading through this..

 

.. unfortunately, I've noticed on my LR register documents that a change of charge has occurred in April of last year..

 

..the helpful lady at LR stated this change was documented as from LPLL to SPML..

 

..of course I have received no notice of this... I still have documents from before and after the date of change that state the loan was legally assigned from LPLL to SPPL on the original date registered on the charges section of the register..

 

..any comments on where I need to go from here please?

 

ZillaK

 

ps - for anyone else who has a loan from LPLL - from 02/05/06 the company formerly registered as LPLL do not have a legal consumer credit licence..

Edited January 11, 2010 by ZillaK
correcting typo..

[enoughisenough]

Hi ZillaK

 

Ryde is so much more up an these matters than my good self. However on the transfer to SPML, remember too that they are imminently insolvent, according to a number of caggers. This would make sense as they were also part of the Lehman's empire and if SPPL are insolvent then prima facia SPML are also about to go belly up.

 

THEREFORE IT IS LIKELY THAT THEY WILL HAVE TO TRANSFER AGAIN, and this is where a restriction could come in very handy indeed. Since you were not given notice last time it is entirely possible that the transfer is ineffectual at law, giving them no power to re-transfer. SOmebody like RYde or SUpersleuth would be able to give a definitive or near definitive account of the relevant law but I suspect its LRA 2002 s.127.

[ZillaK]

..thanks for the replies & info.. greatly appreciated EIE..

 

ZillaK

[enoughisenough]

For people not interested in this particular line of attack please accept my apologies for the long post on restrictions here. I have cut and paste the relevant regs with a view to trying to dissect them later on and try to make sense of this. It's an area very much worth pursuing. If it's pulled off I guarantee it will flip them out!

 

EDITING THIS LATER. APOLOGIES ONCE AGAIN.

 

4 Restrictions

 

4.1 The nature and effect of restrictions

 

4.1.1 The general effect of restrictions

 

Restrictions prohibit the making of an entry in respect of a disposition or a disposition of a specified kind. The prohibition may be indefinite or for a specified period and it may be absolute or conditional on something happening (for example on the consent of a third party being obtained).

 

The term ‘disposition’ is not defined in the LRA 2002. Most restrictions refer to dispositions by the proprietor of the registered estate or of a registered charge, implying some action by that proprietor to make the disposition. A disposition may also occur by operation of law, and a restriction that refers merely to “no disposition” would also catch such a disposition. Please note, however, that a discharge of a registered charge is not a disposition and cannot be prevented by a restriction.

 

A restriction makes it apparent from the register that either the powers of the relevant proprietor are limited, or that a prior condition must be met before a disposition can be registered.

 

Once entered, a restriction will remain in the register until it is cancelled or withdrawn. Restrictions are not automatically cancelled following a disposition, although we may cancel any restriction that has clearly become superfluous.

 

4.1.2 Restrictions affecting a registered estate

 

A restriction that is entered to regulate dispositions of a registered estate will be entered in the proprietorship register. Such restrictions do not have any effect on existing registered charges or the powers of the registered chargee. Since 10 November 2008 the wording of standard restrictions makes this clear, but the principle also applies to restrictions entered before that date. However, a restriction entered in the proprietorship register may affect a charge that is registered afterwards. The date entered in brackets at the beginning of an entry shows the date of its registration. You can tell by comparing the date of a restriction and the date of registration of a registered charge whether the chargee’s powers may be affected.

 

4.1.3 Restrictions affecting an existing registered charge

 

A restriction that affects an existing registered charge will be entered in the charges register and will refer specifically to the entries relating to the affected charge.

 

Even though a restriction entered in the proprietorship register may appear to restrict dispositions by ‘the proprietor of any registered charge’ (see, for example, the Form O restriction), it will not have any effect on a charge that was registered prior to the entry of the restriction.

 

If you intend to restrict all dispositions whether by the proprietor of the registered estate or the proprietor of an existing registered charge, you must apply for separate restrictions in the two parts of the register.

 

4.1.4 What entries may be prevented by a restriction?

 

The standard form restrictions prescribed in Schedule 4, LRR 2003 each regulate or prohibit the registration of a disposition. Registration in this context is defined as meaning the completion by registration of a registrable disposition. None of the standard form restrictions prevent the mere entry of a notice.

 

Note, however, that some restrictions entered under the LRA 1925 expressly prevented the entry of a notice. We will not accept an application for a restriction not in a standard form under the LRA 2002 that expressly prevents the entry of a notice, as this would have the effect of preventing the protection of a third party interest by an agreed or unilateral notice.

 

4.1.5 Complying with a restriction

 

Where the terms of a restriction require a certificate or written consent signed by a corporation aggregate, unless a contrary intention appears in the restriction or the certificate or consent is given in a deed executed by the corporation in question, the certificate or consent must be signed by either:

 

its clerk, secretary or other permanent officer a member of its board of directors, council or other governing body its conveyancer, or its duly authorised employee or agent (r.91B, LRR 2003).

The certificate or consent must state the full name of the signatory and the capacity in which the signatory signs (r.91B(5), LRR 2003).

 

If a restriction requires a certificate or consent to be signed on behalf of a corporation by its secretary but that corporation has no secretary, the certificate or consent should be signed by one of the other persons listed above (r.91B(4), LRR 2003).

 

4.2 Entry of restrictions

 

4.2.1 Restrictions entered at the registrar’s discretion

 

S.42(1), LRA 2002 sets out the registrar’s general power to enter a restriction as follows.

 

“The registrar may enter a restriction in the register if it appears to him that it is necessary or desirable to do so for the purpose of –

 

(a) preventing invalidity or unlawfulness in relation to dispositions of a registered estate or charge,

(b) securing that interests which are capable of being overreached on a disposition of a registered estate or charge are overreached, or

© protecting a right or claim in relation to a registered estate or charge.”

 

The registrar may enter a restriction to fulfil one of these purposes whether or not an application is made to do so.

 

However, the registrar will always notify the relevant proprietor when a restriction is entered without an application having been made to do so. See section 4.4.5 Notifiable applications for information about notices served when an application has been made to enter a restriction.

 

It will usually be clear whether or not a restriction is necessary or desirable for one of the three permitted purposes, but this will not always be the case. Note in particular that the purpose set out in s.42(1)©, LRA 2002 does not permit the registrar to enter a restriction in respect of any right or claim but is limited as follows.

 

— Firstly, the registrar may not enter a restriction to protect the priority of an interest that is or could be protected by notice (s.42(2), LRA 2002). However, a restriction might still be necessary or desirable for one of the other permitted purposes set out in s.42(1)(a) or (b), LRA 2002, for example to prevent the unlawful breach of a provision in a contract that has been protected by notice.

 

— Secondly, a right or claim may only be protected under the third permitted purpose if it relates to a registered estate or charge. As only the legal estate will be registered, this does not include rights or claims that relate only to a beneficial interest in property.

 

A charging order affecting a beneficial interest under a trust may still be protected by a restriction entered under s.42(1)©, LRA 2002, such as Form K, as this is expressly confirmed in the LRA 2002 (s.42(4), LRA 2002). However, generally a restriction can only be entered in respect of an interest under a trust for one of the other two permitted purposes. In most cases, a restriction in Form A will be appropriate for the second purpose – to ensure that overreaching takes place on a disposition that gives rise to capital monies. See Practice Guide 24 – Private trusts of land for more information.

 

4.2.2 Where we are obliged to enter a restriction

 

We are obliged to enter a restriction in certain circumstances. These are where: — we enter two or more persons as joint proprietors of a registered estate in

land and the survivor will not be able to give a valid receipt for capital money (s.44(1), LRA 2002) – see Practice Guide 24 – Private trusts of land for more information

 

— some other statute requires the registrar to enter a restriction (s.44(2), LRA 2002)

 

— a bankruptcy order is registered under the Land Charges Act 1972 and it appears that a registered estate or charge is affected (s.86(4), LRA 2002). Practice Guide 34 – Personal insolvency provides further detail about the entry of a bankruptcy restriction

 

— the court makes an order that requires the registrar to enter a restriction (s.46, LRA 2002) – see section 4.6 Court orders requiring the entry of a restriction for more detail about restrictions required by the court.

 

R.95, LRR 2003 specifies the forms of restriction that we are obliged to enter under various statutory provisions.

 

4.3 The form of a restriction

4.3.1 Standard form restrictions

 

The effect of a restriction must be clear from its wording and its administration must not place us under an unreasonable burden. Schedule 4, LRR 2003 prescribes a number of standard form restrictions that are intended to cover the vast majority of applications made. These are set out in Appendix C of this guide.

 

The standard form restrictions are worded in a clear manner so that we, and someone inspecting the register, will be able to determine whether a given application will be caught by its terms and, if so, what action needs to be taken to allow the application to proceed.

 

When applying for a standard application, remember that:

 

— words in [square brackets] in ordinary type are optional parts of the form; the brackets are not to be included in the restriction

— words in [square brackets] in italic type are instructions for completion of the form, and are not to be included in the restriction

— where (round brackets) enclose one or more words, the brackets and all words in ordinary type enclosed in them are part of the form and, unless also enclosed in [square brackets], must be included in the restriction

— where a form contains a group of clauses introduced by bullets, only one of the clauses may be used; the bullets are not to be included in the restriction

— where a restriction in Form J, K, Q, S, T, BB, DD, FF, HH, JJ, LL or OO relates to a registered charge, which is one of two or more registered charges bearing the same date and affecting the same registered estate, the words ‘in favour of’ followed by the name of the registered proprietor of the charge must be inserted in the restriction after the date of the charge

 

— where the wording of a restriction in Schedule 4, LRR 2003 provides for a certificate or consent to be given by the restrictioner ‘[or [their conveyancer or specify appropriate details]’, the words ‘or specify appropriate details’ are an alternative to rather than an addition to the words ‘their conveyancer’ and should refer to a class of people who may be expected to act on behalf of the restrictioner rather than to a particular named individual

 

— not to amend a standard restriction to commence with the words ‘no dealing’ or ‘no disposition or dealing’, or use wording to prevent noting (as opposed to registration) of a disposition.

 

Note that standard form restrictions N and T were amended on 10 November 2008. Prior to that date these restrictions provided for the option of either a consent or a certificate to be lodged. They now provide only for a consent to be given. Forms NN and OO have been introduced and these allow for either a consent or a certificate.

 

4.3.1.1 Adapting the restriction to suit your circumstances

 

R.91A, LRR 2003 allows the following amendments to the standard restrictions.

 

— Where a standard form restriction is intended to affect part of a registered estate the words ‘No [disposition or specify type of disposition] of the registered estate’ [should be replaced by ‘No disposition [or specify type of disposition] of the part of the registered estate]’ followed by a sufficient description, by reference to a plan or otherwise, to clearly identify the part affected.

 

— A restriction in standard form L, M, N, O, P, S, T, II, NN, OO or PP may commence with the word ‘Until’ followed by a date.

 

— A restriction in standard form L, N, S, T, II, NN or OO may commence with the words ‘Until the death of [name]’ or ‘Until the death of the survivor of [names of two or more persons]’.

 

— Where the words ‘they’ or ‘their’ occur in a standard form of restriction, they may be replaced, as appropriate, by ‘he’, ‘she’, ‘it’, ‘his’, ‘her’ or ‘its’ if they refer to a person or corporation named in the restriction.

 

— Where a standard form of restriction permits the type of disposition to be specified, the word ‘disposition’ may be replaced by ‘transfer’, ‘lease’, ‘charge’, ‘sub-charge’ or any combination of these, but not by anything else.

As well as the options allowed by rule 91A referred to above, which include provisions for restrictions that will cease to have effect on the death of a named person or persons, the wording of standard restrictions L, N. S, T, NN and OO allow for the inclusion of wording to show who should give the certificate or consent if the restriction is to continue to have effect after the death of the person named in the restriction. Thought should always be given to making use of these options when the restrictioner is a person as they can make later applications for cancellation, withdrawal or modification considerably more straightforward for both the applicant and Land Registry.

 

— ‘or their personal representatives’ may be added after the name and address of the person required to give a certificate or consent by the restriction.

 

— ‘or after that person’s death by [name] of [address]’ may be added after the name of the restrictioner if the restriction is to continue to have effect after the death of the restrictioner but it is not appropriate that the restrictioner’s personal representatives give the consent or certificate.

 

— ‘[name] of [address] and [name] of [address] or the survivor of them’ may be used where more than one person is named in the restriction and there is a right of survivorship to the interest protected by the restriction.

 

— ‘[name] of [address] and [name] of [address] or the survivor of them or by the personal representatives of the survivor’ may be used if the restriction will continue to have effect after the death of the survivor of the persons named.

 

Additionally: — ‘or by [name of address]’ may be added after the name of the restrictioner if they wished to allow an alternative second person to give the consent or certificate.

 

The additional wording should only be used where it is shown as an option in the wording of the standard restrictions.

Note that a restriction that starts ‘Until the death of [name]’ does not necessarily have to be completed with the same name as that of the person who is to give a certificate or consent. An example of this may be where a restriction calls for the certificate to be given by a patient’s deputy appointed under the Mental Capacity Act 2005 – the restriction may require the consent of the deputy until the death of the patient.

 

Other practice guides in this series provide information about standard form restrictions that should or may be applied for or entered in particular situations.

 

4.3.2 Restrictions not in a standard form

You should only apply for a restriction that is not in a standard form if none of the standard form restrictions is appropriate. Where there is no appropriate standard form available we will only approve the form that you have applied for if:

 

— it is reasonable

— its application would be straightforward

— its application would not place us under an unreasonable burden (s.43(3), LRA 2002).

 

Please remember the following points if applying for a restriction not in standard form.

 

— It must always contain the words ‘is to be completed by registration’ rather than ‘is to be registered’. This will serve to make the effect of the restriction clear. The term ‘registered’, where used in any of the standard form restrictions, means the completion of a registrable disposition by complying with the relevant registration requirements prescribed in Schedule 2, LRA 2002 (r.91(3), LRR 2003), but this statutory definition only applies to standard form restrictions. Please note that we will not accept restrictions not in standard form for registration that contain the words ‘is to be registered’.

 

— If the restriction affects part only of a registered extent it must contain a sufficient description, by reference to a plan or otherwise, to clearly identify the part affected.

 

— Do not commence the wording of the restriction with ‘No dealing’ or ‘No disposition or dealing’ or use wording to prevent noting (as opposed to registration) of a disposition.

 

— Before you finalise an agreement in which the parties agree to apply for a non-standard restriction in a specified form, please check with us that the proposed form is acceptable. It can prove difficult to renegotiate the terms of an unacceptable restriction after an agreement has been made.

 

As we must consider the appropriateness of any restriction applied for that is not in a standard form, the application fee prescribed in the current Land Registration Fee Order is higher than that for a standard form restriction.

 

4.4 Applying for a restriction

 

4.4.1 Who may apply for a restriction?

 

You may only apply for the entry of a restriction if you:

 

— are the relevant proprietor

— are entitled to be registered as the relevant proprietor (see section 3.6.2 Applications made with the cooperation of the relevant proprietor )

— have obtained the consent of the relevant proprietor or someone entitled

to be registered as such, or

— otherwise have a sufficient interest in the making of the entry.

 

4.4.2 Compulsory applications

 

R.94, LRR 2003 prescribes certain situations where a person must apply for a restriction. In particular, where a new trust is set up or there is a change in a trust of land and as a result a sole proprietor will not be able to give a valid receipt for capital money, a proprietor must apply for a restriction in Form A (Schedule 4, LRR 2003). This is the standard joint proprietorship restriction – see Practice Guide 24 – Private trusts of land for more information.

 

Note that where two or more people are under an obligation under r.94, LRR 2003 to apply for entry of a restriction in Form A, that obligation will be satisfied by an application by one of those people. In this case however the application should be made as if it was made by a person with sufficient interest (see section 4.4.3 Applications made without the cooperation of the relevant proprietor – the need to show a sufficient interest) and Land Registry will serve a notice for information only on the other proprietor(s).

 

4.4.3 Applications made without the cooperation of the relevant proprietor – the need to show a sufficient interest

 

Where the applicant does not have the cooperation of the relevant proprietor, they may only apply for a restriction if they can satisfy us that they have a sufficient interest in the making of the entry.

 

R.93, LRR 2003 contains a list of standard situations where a class of person will be regarded as having a sufficient interest in the making of an entry. In most cases, the rule identifies which of the standard form restrictions will be appropriate to each situation covered.

 

The applicant must give details of the nature of their interest and how that interest arose. We will require evidence to show sufficient interest in support of an application.

 

This evidence must be a statement by the applicant in panel 12 of form RX1 or conveyancer’s certificate in panel 13. If the interest arises from a document (for example, a court order) the statement or certificate should refer to that document and a certified copy should be enclosed and listed in panel 5. We can ask for additional evidence if necessary (r.92(4), LRR 2003).

 

If there is more than one applicant and they chose to give a statement, that statement must be given by all the applicants. Where the applicant is a corporation the person giving the statement should confirm their position and that they are authorised to give the statement on behalf of the corporation.

 

4.4.4 Interests under trusts

 

An interest under a trust of land cannot be protected by an agreed or unilateral notice (s.33(a)(i), LRA 2002) but may be protected by a restriction. Generally, a beneficiary under a trust of land may apply 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 two trustees or a trust corporation. A second Form A restriction cannot be entered because the purpose of a Form A is to ensure that interests behind the trust are overreached; it does not give notice of an individual’s interest under a trust.

An interest under a trust of land means the interest of a person under such a trust who stands only one step away from the registered estate.

 

Examples include:

 

— where A and B are the proprietors of the registered estate and hold on trust for themselves (both have interests under a trust of land)

— where C and D are the proprietors of the registered estate and hold on trust for E for life and for F thereafter (E and F have interests under a trust of land)

— where G is the proprietor of the registered estate and holds on a bare trust for H (H has an interest under a trust of land).

 

If another form of restriction is required either in place of or in addition to a Form A restriction, evidence will have to be lodged showing that the applicant has a sufficient interest in the making of the entry. Whether the application can be accepted will depend on the restriction applied for, the nature of the applicant’s interest and the particular circumstances of the case.

 

If the application was for a consent restriction such as Form N, the registrar would have to be satisfied that it was necessary or desirable (for one of the purposes in s.42(1), LRA 2002) for such a restriction to be entered. To allow a consent restriction to be entered (except, for example, when it was required under the trust) would be to give the beneficiary a right they are not entitled to and could result, in practice, in thwarting the clear intention of ss.42(1)(b) and 44(1), LRA 2002 and ss.2 and 27, LPA 1925 that overreaching should take place.

 

Where a Form A restriction is considered insufficient to protect a beneficiary’s interest under a trust of land, they may also apply for a restriction in Form II. A restriction in this form should ensure that the person named in the restriction receives notice of the disposition, thereby giving them the opportunity of pursuing the proceeds of sale. If the beneficiary’s consent is required under the terms of the trust, an application may be made for a Form B restriction.

Further information about protecting an interest under a trust of land can be found in Appendix A to this guide.

The interest of a person who is two or more steps away from a registered estate which is subject to a trust of land is for the purpose of this guide termed a ‘derivative interest’ and examples include:

 

— proprietors J and K hold on trust for L and M and M holds on trust for herself, N and O (N and O will have derivative interests)

— proprietors P and Q hold on trust for R and S, and S holds on trust for T and U (T and U have derivative interests – here S does not hold on a bare trust)

— proprietors V and W hold on trust for X and Y and X charges their interest

to Z (Z has a derivative interest).

 

A person with a derivative interest may apply for a Form A restriction provided such a restriction has not already been entered in the register.

 

It is difficult to see how an applicant with a derivative interest would be able to satisfy the registrar that they have sufficient interest under s.42(1), LRA 2002 (see section 4.2.1 Restrictions entered at the registrar’s discretion) for any other form of restriction, for example a consent restriction, to be entered. Generally, a person with a derivative interest will not be able to apply for a different form of restriction because:

 

— the holder of a derivative interest cannot apply under s.42(1)(a), LRA 2002 on the basis that the restriction might prevent the trustees from misapplying the proceeds of sale following a disposition which overreaches the beneficial interests, as subsection (1)(a) is concerned only with preventing unlawfulness or invalid dispositions of registered estates and not with subsequent dealings with the proceeds of sale

 

— a derivative interest is not a right or claim in relation to a registered estate or charge within s.42(1)©, LRA 2002 as it is a right or claim in relation to the beneficial interest under the trust of land (not in relation to the registered estate or charge).

 

A person with the benefit of a charging order over a beneficial interest under a trust of land may apply for a Form K restriction, even though their interest is a derivative interest, because of the provisions of s.42(4), LRA 2002 and r.93(k), LRR 2003.

 

R.72A(4), LRR 2003.

 

The Legal Services Commission, where it has a statutory charge over a beneficial interest under a trust of land, may apply for a restriction in Form JJ.

 

4.4.5 Notifiable applications

 

We will notify the relevant proprietor before we complete an application for a restriction unless it is either:

 

— made by or with the consent of the relevant proprietor or someone entitled

to be registered as such

— one of the compulsory applications listed in r.94, LRR 2003, or

— applied for to reflect a limitation under a court order or an order of the registrar (or an undertaking given in place of such an order) (s.45, LRA 2002).

 

The notice will give the relevant proprietor 15 business days to object to the application. If a dispute arises from an objection to an application made within that period and it cannot be resolved by agreement, it will be referred to the Adjudicator to HM Land Registry. See Practice Guide 37 – Objections and disputes for more information about the resolution of disputes by the Adjudicator.

 

4.5 How to apply for a restriction

 

4.5.1 Application form and fee

 

Most applications for restrictions must be made in form RX1. Before applying, please think carefully about the disposition that you wish to restrict, ie is it against a disposition of the registered estate or against a disposition of a registered charge? Select the standard form restriction as appropriate to your circumstances. Remember that a standard form restriction against a disposition of a registered charge will appear in the charges register of the title concerned.

 

However, you may apply for any standard form restriction by making the application in:

 

— the additional provisions panel of any of the following forms: TP1, TP2, TR1, TR2, TR4, TR5, AS1, AS2, AS3

— panel 9 of form CH1 — an electronic legal charge

— a charge where we have approved the form of the charge (including the application for the restriction) in advance

— a lease containing clauses LR1 to LR14 of Schedule 1A, LRR 2003 (see

section 4.5.2 Applications for a restriction contained in a lease). The application must be accompanied by the fixed fee prescribed under the current Land Registration Fee Order.

 

4.5.2 Applications for a restriction contained in a lease

 

In general no effect will be given to an application to register a restriction contained in the body of a lease.

However, any lease containing clauses LR1 to LR14 of Schedule 1A, LRR 2003 may be used, at clause LR13, to apply for entry of a standard form restriction. This includes prescribed clauses leases granted on or after 19 June 2006. If clause LR13 is not completed in such a lease, any application to register a restriction contained within the body of the lease will be ignored.

 

Where a lease containing clauses LR1 to LR14 of Schedule 1A, LRR 2003 is lodged for registration, and the standard form restriction is to be entered against titles other than the landlord’s or that created by the registration of the lease, it will only be registered if clause LR2.2 is also completed17.

 

Where application is made against a title other than the landlord’s or that created by the registration of the lease, evidence may be required of the consent of the registered proprietor, or of the person entitled to be registered as proprietor, or that the person applying has sufficient interest in the making of the entry. Where clause LR13 is used to apply for a standard form restriction and such evidence is required it should be lodged under a covering letter with the application to register the lease.

 

Clause LR13 may not be used to apply for a non-standard form restriction and a form RX1 should continue to be used.

Practice Guide 64 – Prescribed clauses leases provides further information about prescribed clauses leases.

 

4.5.3 Information that must accompany the application

 

You must lodge the following information with your application.

 

— Full details of the restriction that you are applying for.

— An address for service for:

— anyone named in a standard form restriction whose address is required by that restriction

— anyone named in any other restriction whose consent or certificate is required or to whom notice must be given by the registrar or another person.

— Where the restriction refers to a company or limited liability partnership registered anywhere in the United Kingdom you must include the company registration number in the restriction immediately after the name. If the restriction names a company incorporated outside the United Kingdom you must include the territory of incorporation and if the company is registered at Companies House in England or Wales (but not Scotland or Northern Ireland) the registration number issued by Companies House. Overseas companies may be registered at Companies House if they have a branch or place of business in England and Wales.

 

— Where the application is made with the consent of the relevant proprietor or someone entitled to be registered as such, you must lodge either:

 

— the consent, or

— a certificate given by a conveyancer confirming that he holds the

relevant consent.

 

— Where the application is made by or with the consent of someone entitled to be registered as the relevant proprietor, you must lodge either:

 

— evidence of their entitlement, or — a certificate given by a conveyancer confirming that they are satisfied

that person is entitled to be registered and that either the conveyancer holds original documentary evidence of the entitlement or that there is a pending application to register that person as proprietor at Land Registry.

 

— Where the application is not made by or with the consent of the relevant proprietor, you must lodge: — evidence of your interest in the making of the application. Details of the nature of the interest and of how that interest arose must be given either as a statement by the applicant in panel 12 or as a conveyancer’s certificate in panel 13 of form RX1. Where it is available, documentary evidence of the interest should be lodged with the application. Although there may be no documentary evidence where the interest is a resulting or constructive trust we would expect to see documentary evidence for all other restrictions (apart from restrictions in Forms D, E, or F).

 

4.6 Court orders requiring the entry of a restriction

 

4.6.1 The court’s power to order the entry of a restriction

 

The court may make an order requiring the registrar to enter a restriction (s.46, LRA 2002). Forms AA to HH are the standard form restrictions that the court is most likely to order the registrar to enter, but it may also order the entry of a restriction in a different form. If you intend to apply to court for an order that will require the registrar to enter a restriction that is not in one of the standard forms, please contact us first to ensure that the proposed form will be straightforward and will not place us under an unreasonable burden.

 

4.6.2 Application form and fee

 

Although the order may be addressed directly to the Chief Land Registrar, you should make a formal application for the restriction to be entered. This will ensure that the restriction is entered against the correct titles. Your application should be made in form AP1 (not RX1) (r.92(8), LRR 2003) and should be accompanied by the fixed fee prescribed under the current Land Registration Fee Order.

 

4.6.3 Overriding priority

 

The court may direct that the terms of the restriction must take priority over that afforded by any official search with priority that is pending when we process the application for the restriction (s.46(3), LRA 2002). The restriction will then be entered immediately even if there is an unexpired priority period arising from an official search to protect the priority of a disposition that has not yet been lodged. This direction may be appropriate if there is a risk that somebody may apply for an official search ‘with priority’ before the restriction can be entered so that they can register a disposition of the property without being caught by the terms of the restriction.

 

4.7 Removal of a restriction entry

4.7.1 Removal of restrictions

 

Restrictions may be removed from the register in the following ways.

 

— They may be withdrawn voluntarily by the appropriate people interested in the restriction (s.47, LRA 2002 and r.98, LRR 2003).

— Anyone may apply to cancel a restriction that is no longer required (r.97, LRR 2003).

— We may cancel a restriction ourselves if it is clear that it is superfluous (paragraph 5 of Schedule 4, LRA 2002). — We must cancel a restriction entered in respect of a trust of land if we are satisfied that the affected estate is no longer subject to the trust (r.99, LRR 2003). See section 7 of Practice Guide 24 – Private trusts of land for more information about cancellation of trust restrictions.

 

Depending on its terms, a restriction may continue to have effect despite numerous changes of proprietorship, other dispositions and the lapse of time. Someone intending to take a disposition of an estate or charge against which a restriction has been registered should therefore consider whether:

— the disposition will be affected by the restriction and, if so, whether they can comply with its terms

— the restriction may affect any later disposition they may wish to make.

 

In appropriate circumstances they should take steps to ensure the restriction will be cancelled or withdrawn before committing themselves to complete the disposition.

 

4.7.2 Applications to cancel a restriction

 

Cancellation is the term used in r.97, LRR 2003 to refer to an application to cancel a restriction that is no longer required.

 

Any person may apply to cancel a restriction. The application must be made in form RX3 and no fee is payable.

Where the application to remove the restriction is made by or with the consent of the people having the benefit of the restriction, application should be made to withdraw the restriction using form RX4 unless it is one of those restrictions referred to in section 4.7.3 Applications to withdraw a restriction, which cannot be withdrawn.

 

We will cancel the restriction if we are satisfied that the restriction is no longer required. The application must be accompanied by evidence to show that this is the case. If anyone is referred to in the restriction and if an address for service is listed for that person, we will usually notify them of the application and give them an opportunity to object to the application before cancelling the restriction.

 

4.7.3 Applications to withdraw a restriction

 

Withdrawal of a restriction is the term used in s.47, LRA 2002 and r.98, LRR 2003 for an application by or with the consent of all people with the benefit of the restriction for it to be removed from the register. If we are satisfied that everyone with the benefit of the restriction has consented to the application, we will remove the entry without having to investigate whether the restriction continues to serve any purpose. The application must be made in form RX4; no fee is payable.

 

Restrictions of the following types cannot be withdrawn (r.98(3), LRR 2003).

 

— Those entered to prevent an unlawful or invalid disposition by a proprietor whose powers are limited by statute or under the general law.

— Those entered by someone who was under an obligation to apply.

— Any that the registrar is obliged to enter.

— Those entered to reflect a limitation in an order of the court or the registrar or a limitation in an undertaking given in place of an order.

— Any that the court has ordered the registrar to enter.

 

If one of these restrictions has ceased to apply, application to cancel the restriction should be made as described in section 4.7.2 Applications to cancel a restriction. It should be noted that a restriction in standard Forms A, B, C, U, V, W, X or Y will almost invariably fall within the above list. The registrar has been advised by counsel that a Form JJ restriction falls within s.41(1)(a), LRA 2002 and so cannot be withdrawn.

 

The application must generally be made by or with the consent of everyone who appears to us to have an interest in the restriction. In general, the interested people are the present holders of the interest protected by the restriction.

Please note that under r.98(1) and (2), LRR 2003 an application for the withdrawal of a restriction must be accompanied by the required consent.

 

The required consent is:

 

— where the restriction requires the consent of a specified person, the consent of that person

— where the restriction requires a certificate to be given by a specified person, the consent of that person

— where the restriction requires notice to be given to a specified person, the consent of that person

— where the restriction requires the consent of a specified person, or alternatively a certificate to be given by a specified person, the consent of all such people

— in any other case, the consent of all people who appear to the registrar to have an interest in the restriction.

 

Where the person consenting is not the same as the person referred to in the restriction, you must supply appropriate evidence of devolution.

 

However, where a restrictioner has died and the terms of the restriction do not indicate that it will end upon death, or who is to have the benefit after death, then in practice it will usually be impossible to withdraw the restriction.

 

Application must be made for its cancellation. The applicant must lodge all necessary consents when applying, but we will accept a conveyancer’s certificate confirming they hold the necessary consents. Where the application is to withdraw part of the land within an affected estate or charge from the effect of the restriction (for example in readiness for a transfer of that part), the part in question must be clearly identifiable from the application.

 

4.7.4 Restrictions cancelled without application

 

We may cancel a restriction without any application being made if it is clear that the restriction has become superfluous (paragraph 5(d) of Schedule 4, LRA 2002). The following are examples of where we might cancel a restriction automatically.

 

— Where the restriction is limited in time and the relevant period has expired.

— Where the restriction was entered in connection with the registration of a charge which has now been discharged.

— Where the restriction was entered to protect an interest that has since been overreached by the payment of capital money arising on a registrable disposition to the proprietors who have given a valid receipt (for example Form A).

— Where the restriction was entered in relation to a limitation on the powers of a previous proprietor.

— Where we register a transfer under a power of sale by the proprietor of a registered charge whose powers were not affected by the restriction.

 

4.8 Applications to disapply or modify a restriction

 

4.8.1 Disapplying a restriction

 

Anyone who has a sufficient interest in a restriction may apply for an order that it is disapplied to enable a particular disposition or dispositions of a specified kind to be registered. For example, a registered estate might be subject to a restriction prohibiting the registration of any transfer without the consent of a management company. If the company has been dissolved (see section 7.5 of Practice Guide 35 – Corporate insolvency ) but the applicant can show that there is no reason why the transfer should not proceed, the registrar may make an order permitting the transfer to be registered. In those circumstances it might not be appropriate to cancel the restriction completely as the company might be restored to the companies’ register at a later date.

 

If the restriction is disapplied, the transfer can be registered but the restriction would remain in the register.

 

4.8.2 Modifying a restriction

 

Anyone who has a sufficient interest in a restriction may apply for an order that its terms be modified. The modification might relate to a specific disposition or to dispositions of a specified class. For example, an applicant may wish to modify the terms of the restriction so that it no longer ‘catches’ a charge. Please note, however, that we cannot accept an application to modify a restriction that extends its effect. To achieve this, the restrictioner must first apply in form RX4 to withdraw it and then in form RX1 for a new restriction.

 

4.8.3 The application

 

An application to disapply or modify a restriction must be made in form RX2. The application must be accompanied by the fixed fee prescribed under the current Land Registration Fee Order.

The applicant must:

 

— state whether the application is to disapply or to modify the restriction

— explain their interest and why it is sufficient to make the application

— state why the applicant considers that the registrar should make the order

— give details of the disposition or kind of dispositions that will be affected by

the order.

 

If the application is to modify the restriction, give details of the modification requested. The application may be made before, or at the same time as, an application to register the disposition that is caught by the restriction. When considering whether or not to make the order, the registrar will additionally consider any available evidence to clarify what purpose the restriction still serves. The registrar may ask for further evidence from the applicant and may serve appropriate notices.

Edited January 11, 2010 by enoughisenough

[midge61]

Hi all

 

I have sent my complaint in to the FOS today. I have pointed out that the problem of these alleged arrears has only occurred since my last complaint made to them in March 2009 because capstones:

 

1, claim to have made a mistake with the amount i should of paid back i,e I have paid too much

2, they found more incorrectly added charges

3, they add interest on the charges but forget to refund it when refunding charges

4,they have stated they pay the charges from my monthly payment first then the rest so automatically causing arrears

5, they now state that my 3monthly letter stating what my payments should be are only a PREDICTION and always seem to be under rather than over, so causing more arrears

6, despite having an agreement to pay by the 10th of the month in place for several years they now tell me that this incurs extra interest because of the de laid payment

7, despite the above agreement they now (since the 1st complaint) automatically add late payment and arrears management fees and then take them off again a couple of months later........all incurring extra interest which does not seem to be refunded.

 

Basically they have got their selves in knots making all these mistakes and made a complete mess of my account!

 

eie please use any of this in your letter.

 

And if any of you guests think you can work out who I am to be quite honest I don't give a flying f**k I have had my fill of crapstones and i will go all out to fight them now

[ZillaK]

.. thanks for the heads-up on placing restrictions @ the lr.. hehe..

 

...

 

..it's worth making a formal complaint to crapstones compliance officer perhaps.. is it Tammy Donoghue?.. or perhaps it's Mandy Gould ([email protected]) Compliance Project Manager?

 

ZillaK

Edited January 11, 2010 by ZillaK
adding 2nd para..

[midge61]

this has been posted today by dun wi debtin

 

The FSA is reviewing the mortgage market and would welcome your comments on the draft paper.

 

The paper is here: http://www.fsa.gov.uk/pubs/discussion/dp09_03.pdf

 

Much of the paper's content was trailed last year. The closing date for comments on the draft document is 30th January 2010.

 

Leave your comments here: DP09/3: Response form

[ZillaK]

.. perhaps this is of interest to some.. quoted from here..

 

[enoughisenough]

Good call midge

 

however it is largely an industry based q and a making a total mockery of the fsa and it's so called powers of protection for the consumer. Mark my words, and super has been here before me, the fsa (aka useless) will be our glorified one stop shop for complaint. This is what will happen. We won't be allowed to take court action against the criminal cabal. We will have to go to the f ing slow authority first. Can you see how this is developing?

[ryde]

ALL WITH SPPL

To have any chance with a restriction you must have an interest in the charge,think about that carefully,have you a monetary claim against sppl.This is far from worked out or cut and dried and is still being worked on as its highly technical,but be assured this is not bulls..t, it is being worked on.