Form A restriction when re-mortgaging on Land Registry document

S_Lane

I am trying to re-mortgage and have been told by the conveyancing solicitors arranged by Halifax (who told me that they are working for Halifax, not for me) that because my husband is listed as a restriction as a tenant in common (therefore a Form A restriction, I believe), I cannot re-mortgage until he is removed and then he can be added again after the re-mortgage has gone through. Looking into this, he needs to complete an RX4 (removal of restriction) form for which no fee is payable, and we also need to complete an ST5 (statement of truth) form. However, I'm not sure if we can do this ourselves or whether we need to pay a solicitor (I don't know of a local solicitor and the Halifax ones say they can't do this, plus I don't want to spend too much on this or it won't be worth re-mortgaging). It is also made slightly more confusing because I'm not sure if we can simply say on the ST5 form that :

"Where there remains one registered proprietor (who is me):  I confirm that no one other than the remaining/surviving registered proprietor now has a beneficial interest in the property. AND  I confirm that no beneficial interest in the property has been separately mortgaged or charged, and that no beneficial owner is or was subject to a charging order or bankruptcy proceedings (a registered mortgage does not count)." Because we are on a development with a managing company and they are also listed as a restriction, but I have been told that this will not affect the re-mortgage so I wasn't planning on discussing the restriction related to my husband with them but don't know how it affects the completion of the form if they are still on the land registry title document.  I'm also not sure what evidence to provide other than consent from my husband, or how I explain on the ST5 what has happened to the beneficial interest protected by the restriction, because he is still my husband living in the property and will be re-added afterwards, but simply to put him down after Halifax so that their charge on the property is first. Finally, once I've managed to correctly complete the forms, I don't know how to ensure this goes through quickly so that the re-mortgage application can continue as they still need to sort out a solar panel lease issue too (for a cost of £234) and I don't want to miss the time limit for the mortgage offer.

S_Lane

I've just seen that he can't use the RX4 form as this is is to withdraw, and you can't do that with a Form A restriction, it needs to be an RX3 form, but all of the above still apply as it mainly relates to the statement of truth.

Land_Registry

A form A restriction will prevent you from securing a mortgage on your own. It doesn’t name your husband in the restriction so I’m slightly confused by what you have posted. 

Can you explain whether you are both registered as joint owners? 

Or is it in your sole name but your husband has a restriction in his name? 

And does the management co restriction say no disposition, no charge, no transfer or no anything else? 

xylophone

This seems very odd.

You and your husband own your property as tenants in common and there is a Form A restriction on the property.
You both want to re-mortgage?

Why this malarkey about his name being removed then re-added?   Has  the solicitor explained?

loubel

Usually with a remortgage it isn't necessary for you to have your own solicitor, but in this case it seems it would be beneficial as you have issues on which you require legal advice and assistance. 

S_Lane

Land_Registry said:

A form A restriction will prevent you from securing a mortgage on your own. It doesn’t name your husband in the restriction so I’m slightly confused by what you have posted. 

Can you explain whether you are both registered as joint owners? 

Or is it in your sole name but your husband has a restriction in his name? 

And does the management co restriction say no disposition, no charge, no transfer or no anything else? 

There were problems when initially buying the house with my husband being on the mortgage (he didn’t pass the credit check) so even though we both live in the property, the mortgage is only in my name and I am the sole proprietor, my husband is named as a restriction. I thought that it would be easier to try to keep everything as it was and remortgage in my name only as I am sole proprietor. We are tenants in common with a deed of trust demonstrating how much we each put into the property and that we equally pay the mortgage. The deed of trust also states that the mortgage advance from the bank is secured by way of first legal charge on the property, so even in this document it demonstrates that he agrees that the lender has priority on the property.

We were told by the mortgage broker that a solicitor is required to be used for a remortgage and this has been confirmed by Halifax (I am changing from Lloyds to Halifax).

As for the management company, it states, “no disposition of the registered estate (other than a charge) by the proprietor of the registered estate .... and keeps referring to a charge .... is to be registered without a certificate signed by the management company. As I see it, they do not have a beneficial interest in the property and therefore I happily completed the form to demonstrate that they do not do so. 

I hadn’t seen that there were responses so I have sent off forms RX3 and ST5 to land registry along with a copy of the mortgage offer so hopefully he can be removed from the register and then I can get the remortgage, then he can be added on at a later date and a new deed of trust drawn up.

I’m now hoping that this goes through and then I can continue with the remortgage process. Does anyone know how long the land registry process may take?

Land_Registry

Most lenders insist on a borrower using a conveyancer. It’s part and parcel of the regulations they work under. 

If I have understood you correctly then you are registered as a sole owner with a form A restriction. He’s not ‘named’ in the restriction. Your form RX3 and ST5 are to cancel it. There’s a wait time of around 6/7 weeks at present but it could be longer. If the mortgage offer is going to expire before then you should consider requesting expedition  https://www.gov.uk/guidance/coronavirus-covid-19-impact-on-hm-land-registrys-services#expedite
The Management Co restriction doesn’t read as if it catches a remortgage so can probably be ignored. It states ‘no disposition ....... (other than a charge)’ - your remortgage is a charge 

S_Lane

Land_Registry said:

Most lenders insist on a borrower using a conveyancer. It’s part and parcel of the regulations they work under. 

If I have understood you correctly then you are registered as a sole owner with a form A restriction. He’s not ‘named’ in the restriction. Your form RX3 and ST5 are to cancel it. There’s a wait time of around 6/7 weeks at present but it could be longer. If the mortgage offer is going to expire before then you should consider requesting expedition 
The Management Co restriction doesn’t read as if it catches a remortgage so can probably be ignored. It states ‘no disposition ....... (other than a charge)’ - your remortgage is a charge 

Thanks for this. I'm still a bit confused why you say that my husband is not 'named' in the restriction. I have taken out the personal details but the wording on the restriction is:
"(15.01.2014) RESTRICTION: No disposition of the registered estate by the proprietor of the registered estate is to be registered without a written consent signed by "my husbands name" of "our address" or his personal representative or conveyancer."
(Where I am the sole proprietor of the registered estate)
Therefore, I would consider this to be as 'named' in the restriction. I am hoping that it will be possible to cancel this restriction for the purposes of the remortgage and the reapply the restriction if necessary, following the remortgage, so that the date on the restriction is after the remortgage has taken place, which should satisfy Halifax, knowing that he will not have priority to the estate over them should repayments failed to be made. Can you see a problem with the cancellation of this restriction, for the purposes that I have given?

In relation to expediting the application, it refers to a reference number on the contact form and I do not have one. At present, there is still time, but I am also aware that this is not the only hurdle in the remortgage because there has also got to be a solar panel lease check, therefore, the sooner that each of these steps can take place, the better to avoid missing the deadline.
Is there a reference number that I should be using or will it be OK without one? it would probably be easier having a phone conversation to discuss this, is there a phone contact number for Land Registry?

SDLT_Geek

Looking at the wording of the restriction OP quotes, it is not a Form A restriction as per the heading of the thread.  

No wonder OP is so confused, having confused the issues!

Land_Registry

S_Lane said

Thanks for this. I'm still a bit confused why you say that my husband is not 'named' in the restriction. I have taken out the personal details but the wording on the restriction is:
"(15.01.2014) RESTRICTION: No disposition of the registered estate by the proprietor of the registered estate is to be registered without a written consent signed by "my husbands name" of "our address" or his personal representative or conveyancer."
(Where I am the sole proprietor of the registered estate)
Therefore, I would consider this to be as 'named' in the restriction. I am hoping that it will be possible to cancel this restriction for the purposes of the remortgage and the reapply the restriction if necessary, following the remortgage, so that the date on the restriction is after the remortgage has taken place, which should satisfy Halifax, knowing that he will not have priority to the estate over them should repayments failed to be made. Can you see a problem with the cancellation of this restriction, for the purposes that I have given?

In relation to expediting the application, it refers to a reference number on the contact form and I do not have one. At present, there is still time, but I am also aware that this is not the only hurdle in the remortgage because there has also got to be a solar panel lease check, therefore, the sooner that each of these steps can take place, the better to avoid missing the deadline.
Is there a reference number that I should be using or will it be OK without one? it would probably be easier having a phone conversation to discuss this, is there a phone contact number for Land Registry?

You’ve solved our confusion by actually posting the restriction wording. It’s not a form A restriction but one applied for to protect his interest. So you can’t remortgage without his consent, hence the lender being unwilling to lend as he has a protected interest which would take priority over any secured loan.
You don’t use an ST5 to remove it but you can use a form RX3 to cancel it or he can withdraw it using form RX4 - the latter is likely to be quicker 
If you cancel/withdraw it then the issue goes away and you can apply to register a new restriction after the remortgage
When you apply you’d do so using the relevant title number. Once you’ve lodged the form RX3 or RX4 you then request expedition separately quoting the title number and lodging a copy of your mortgage offer. There’s no need to ring as there’s nothing to discuss if you follow the steps provided 

SDLT_Geek

Land_Registry said:

S_Lane said

Thanks for this. I'm still a bit confused why you say that my husband is not 'named' in the restriction. I have taken out the personal details but the wording on the restriction is:
"(15.01.2014) RESTRICTION: No disposition of the registered estate by the proprietor of the registered estate is to be registered without a written consent signed by "my husbands name" of "our address" or his personal representative or conveyancer."
(Where I am the sole proprietor of the registered estate)
Therefore, I would consider this to be as 'named' in the restriction. I am hoping that it will be possible to cancel this restriction for the purposes of the remortgage and the reapply the restriction if necessary, following the remortgage, so that the date on the restriction is after the remortgage has taken place, which should satisfy Halifax, knowing that he will not have priority to the estate over them should repayments failed to be made. Can you see a problem with the cancellation of this restriction, for the purposes that I have given?

In relation to expediting the application, it refers to a reference number on the contact form and I do not have one. At present, there is still time, but I am also aware that this is not the only hurdle in the remortgage because there has also got to be a solar panel lease check, therefore, the sooner that each of these steps can take place, the better to avoid missing the deadline.
Is there a reference number that I should be using or will it be OK without one? it would probably be easier having a phone conversation to discuss this, is there a phone contact number for Land Registry?

You’ve solved our confusion by actually posting the restriction wording. It’s not a form A restriction but one applied for to protect his interest. So you can’t remortgage without his consent, hence the lender being unwilling to lend as he has a protected interest which would take priority over any secured loan.
You don’t use an ST5 to remove it but you can use a form RX3 to cancel it or he can withdraw it using form RX4 - the latter is likely to be quicker 
If you cancel/withdraw it then the issue goes away and you can apply to register a new restriction after the remortgage
When you apply you’d do so using the relevant title number. Once you’ve lodged the form RX3 or RX4 you then request expedition separately quoting the title number and lodging a copy of your mortgage offer. There’s no need to ring as there’s nothing to discuss if you follow the steps provided 

At last some clarity!  Well done @Land_Registry