Overreaching meaning

Original news Banwaitt v Dewji and another [2015] EWHC 3441 (Ch) What issues did this case raise? This decision will interest practitioners advising judgment creditors with a charging order against a debtor’s share in jointly owned property, and anyone dealing with security over beneficial interests in land more generally. The central issue was whether a married couple, as co-owners, could have a charging order removed from the title by the wife buying the husband’s stake. The claimant had secured a substantial judgment which the debtor failed to satisfy. A charging order was then obtained over the debtor’s beneficial interest in the family home. Thereafter, the debtor and his wife transferred the property into her sole name for a modest sum. She argued the order no longer bound the title—maintaining it had been ‘overreached’ under sections 2 and 27 of the Law of Property Act 1925. The debtor tendered that sum to the claimant. However, the debtor had not obtained the claimant’s agreement in advance to the disposition and, in...

See Q&A: A and B, a married couple, are on the register as owners of a property as tenants in common. A has passed away and named their adult child (C) to act as executor. B now lacks capacity, and C also serves as B’s attorney under a registered enduring power of attorney. Can C appoint a co-trustee of the property to enable a sale, or must they first obtain authority from the Court of Protection? Under section 7 of the Trustee Delegation Act 1999 (TDA 1999), a capital money receipt will only overreach beneficial interests where an attorney acts together with at least one other individual. For a sale of land, overreaching requires either two trustees or a trust corporation (see section 2 of the Law of Property Act 1925). Accordingly, the executor/attorney (C) must have a second trustee in place to effect a valid disposition of the land. This implies that a receipt clause in a...

N3 Living Ltd v Burgess Property Investments Ltd and anothe r [2020] EWHC 1711 (Ch) What are the practical implications of this case? The appointment of a second trustee under section 36(6) of the Trustee Act 1925 within the TR1 transfer, to receive the sale proceeds, is a proper and standard means of satisfying a Form A restriction so as to confer good title on the purchaser, free from the interest protected by that restriction. This approach, set out in HM Land Registry’s Practice Guide 21, aligns with the general law of overreaching. Provided the wording of the restriction and the requirements of the LRA 2002 and the Land Registration Rules 2003, SI 2003/1417 are met, a purchaser will obtain good title and be registered as proprietor free of any such interest, and need not be troubled by the character of the interest or trust safeguarded by the restriction, nor by the application of the sale proceeds. Therefore, in a...

FORTHCOMING CHANGE: Following the Government’s response to the Ministry of Justice and the Office of the Public Guardian (OPG) consultation, Modernising Lasting Powers of Attorney, the Powers of Attorney Bill obtained Royal Assent on 18 September 2023, becoming the Powers of Attorney Act 2023 (PAA 2023). Once in force, PAA 2023 will introduce amendments to the Mental Capacity Act 2005 (MCA 2005) to deliver a more modernised lasting power of attorney (LPA) service. The measures will include: bringing in regulations so that those involved in creating an LPA can choose whether to execute the instrument electronically or on paper; removing the option for attorneys to register an LPA, so that only the donor will be authorised to register; introducing regulations specifying identity verification requirements in relation to registration applications; providing for a single route for objections to registration to the OPG and widening the class of people who may object to include third parties, and not merely those named in the LPA; ...

This Practice Note examines the scrutiny of official copy entries (often called an OCE) relating to the title of a property recorded at HM Land Registry in an enforcement context. It identifies the key items that ought to form part of a security review and the guidance to receivers upon appointment. The Practice Note also highlights, by way of examples, some opportunities that may exist for securing additional benefit; these are not intended to be exhaustive. Matters more appropriate to a real estate report on title are outside the scope of this Practice Note. For information on obtaining OCEs from HM Land Registry, see Practice Note: How to obtain official copies of the register from HM Land Registry. The land register and title plan Where a mortgagee is contemplating appointing, or has already appointed, a receiver over a property, you should obtain from HM Land Registry the relevant OCE for that property. Doing so is crucial to verify that the security under which the receiver will be appointed...

This Practice Note addresses transactions involving land charged by way of mortgage. It reviews how far a mortgagor may deal with the land, the situation of a tenant where the reversion is mortgaged, and the requirement for the mortgagee’s consent to dealings. For guidance on discharging a land mortgage, see Practice Notes: Land registration—legal and equitable charges and HM Land Registry and Commercial property—dealing with undertakings and release of security... Mortgagor’s power to deal with land Statutory powers Under the Law of Property Act 1925 (LPA 1925), a mortgagor has limited statutory authority to grant leases and to take surrenders. Those powers can be excluded or varied, save for certain agricultural tenancies and business tenancies made pursuant to a court order under the Landlord and Tenant Act 1954... Mortgage covenants and conditions The mortgagor’s statutory powers operate only to the extent no contrary intention is expressed by the mortgagor and mortgagee in the mortgage deed or other written instrument. In practice, most mortgage deeds include...

A charity may hold legal title to land or property in its own name only if it is a charitable incorporated organisation or a charitable company. Land Registry Guidance Practical Guidance 14: Charities explains that the term “trust corporation” includes: the Public Trustee (who is not permitted to accept trusts for charitable purposes); a corporation appointed by the court, in any particular instance, to act as trustee; and a corporation entitled, under rules made pursuant to section 4(3) of the Public Trustee Act 1906, to act as a custodian trustee. See section 205(1)(xxix) of the Law of Property Act 1925 and section 17(1)(xxx) of the Settled Land Act 1925, and also section 3 of the Law of Property (Amendment) Act 1926...