PART 4  NOTICES AND RESTRICTIONS

29. This part of the Bill effects a major reform of the law governing the protection given to the rights and interests of third parties over or in relation to a registered estate or charge. It is simplified by reducing the possible methods of protection. The various current options are replaced by two: notices (either unilateral or agreed), and restrictions. The Bill clarifies the circumstances in which they can be used.

CLAUSE 34   ENTRY ON APPLICATION

30. Clause 34 sets out the entitlement to apply to register either a unilateral or agreed notice. Registered proprietors can at any time challenge the entry of a unilateral notice, but not an agreed notice to which they (or their predecessors in title) have consented. The clause allows an application to be made either for a unilateral notice or an agreed notice, but this is expressed to be subject to rules. It is likely that rules may provide that an agreed notice should be the only form of entry in relation to certain types of application. Under the present law, some notices can be entered in the register without the production of the proprietor's land certificate, such as a spouse's charge in respect of matrimonial home rights. The situations in which agreed notices only should be permitted are likely to change, and the delegation will enable the Lord Chancellor to adapt the rules to accommodate changing needs.

CLAUSE 35   UNILATERAL NOTICES

31. Clause 35 provides that when a unilateral notice is entered in the register, the registrar must give notice to the proprietor of the land or charge affected. A rule-making power enables the Lord Chancellor to prescribe additional categories of person on whom such a notice must be served. This enables the Lord Chancellor to adapt the arrangements to cover any other categories of person whose rights might be affected by the entry of a notice, for example the liquidator of a company which was the registered proprietor. This level of detail is appropriately left to rules.

CLAUSE 36   CANCELLATION OF UNILATERAL NOTICES

32. Clause 36 makes provision for the registered proprietor or other entitled person to apply for the cancellation of unilateral notices. A rule-making power allows the Lord Chancellor to prescribe a period at the end of which the registrar must cancel the notice if the beneficiary of the notice has not responded to notice of the proprietor's application.

CLAUSE 39   SUPPLEMENTARY

33. Clause 39 gives the Lord Chancellor delegated power to make provision about the form and content of notices generally. This is a procedural matter of detail, dealt with in rules under the existing framework.

CLAUSE 43   APPLICATIONS

34. Clause 43 sets out a person's entitlement to apply for the registration of a restriction. A restriction is an entry which regulates the circumstances in which the owner can dispose of property, for instance recording that the consent of the management company on the disposal of a plot of land on a development must be obtained. The clause contains a delegated power to prescribe:

• circumstances in which, and persons by whom, an application must be made;
• the form of consent to be given by the registered proprietor or the person entitled to be registered as proprietor to the making of the entry; or
• the persons who have a sufficient interest for such an entry to be made without the owner's consent; and in either case;
• the standard forms of restriction to be used.

These are detailed, and largely procedural questions. The equivalent issues are currently dealt with by rules.

CLAUSE 44   OBLIGATORY RESTRICTIONS

35. Clause 44 places a duty on the registrar to enter a restriction about the powers of disposal of joint owners. The clause envisages that the Lord Chancellor will use the general rule-making power to prescribe the wording of the appropriate restriction. It also envisages that rules will specify the wording of any other restriction that the registrar is obliged by statute to enter without specific application. These are provisions of detail, ensuring the precise stipulation of complex restrictions, of a kind already dealt with in rules under the existing framework.

CLAUSE 45    NOTIFIABLE APPLICATIONS

36. Clause 45 provides that where the application for a restriction is notifiable as defined in the Bill, the registrar must give notice of the application and of the right to object to the registered owner. Delegated power is given to the Lord Chancellor to widen the requirement to serve notice on persons of other descriptions. This level of detail is most appropriately dealt with in rules and it is envisaged that power would be exercised immediately to cover people whose interests are recorded in the register, such as lenders who may advance further loans, and who are notified under the current system.

37. Rules will also determine the length of the period given to the recipients of the notice for considering whether to make an objection, and during which the registrar may not complete the application.

CLAUSE 46   POWER OF COURT TO ORDER ENTRY

38. Clause 46 provides that a court can order that a restriction be entered. Normally the restriction would take effect after all the entries appearing in the register at the time that the restriction is entered. The clause provides, however, that the court can also direct that the entry takes precedence over existing entries. As with the other instances of the registrar being required to make or change entries in the register under the direction of the court, the form of the entry that the registrar must make to give notice of this precedence will be prescribed by secondary legislation, as a detailed question of procedure.

CLAUSE 47   WITHDRAWAL

39. Clause 47 provides that a person may apply for the withdrawal of the restriction. Delegated power is given to the Lord Chancellor to define in rules which categories of restriction may be removed by application in this way and what categories of persons are entitled to make the application. This distinction is needed because some restrictions appear in the register because of the nature of the ownership and will not be removed until the ownership changes. The rules to be made under this section are likely to reflect existing rules relating to the removal of restrictions and the special category of restriction abolished by the Bill, the inhibition. This level of detail is more appropriately dealt with as now under rules.