Land Registry restriction removal.

[Oneblindmouse]

I am hoping someone can point me in the direction of the correct type of solicitor to approach regarding this issue as several have been approached who cannot help. Sorry it's long but it's complicated and I don't want to miss out any crucial details.

My DS bought his first house in 2019. His partner was to live with him. His partner was in a lot of debt and out of work so could not contribute anything to the purchase and the house is in DS's sole name.

DS ensured that a Declaration of Trust was drawn up to protect both of them in the event the house was sold/they split up. The percentage shares reflected the fact that DS paid the deposit so would have a greater share of any equity.
The terms of the Trust were that they both had to pay 50% each of the mortgage and cost of any home improvements.
However the partner made no financial contributions at all. DS paid all mortgage payments. His partner did help practically with DIY but not financially.
10 months after they moved into the house DS's partner was jailed for a crime. He is still in prison. Their relationship is over. DS is very concerned that if he wishes to sell the house he will not be able to due to the restriction on the Title due to the Declaration of Trust.
As his former partner did not meet the terms of the Declaration of Trust he is not entitled to any share of the equity. DS wishes to have the restriction taken off the Title to simplify matters when he comes to sell the house.
He has managed to find out that a Deed of Surrender is required but needs a solicitor to deal with it. The solicitor who carried out the conveyancing and the Declaration of Trust originally is not willing to do it.
Can anyone tell me if this is fact possible and if there are any solicitors who could do it. He has contacted 6 companies so far and none will take it on.
Thanks for reading if you got this far.

@LandRegRep1862 is this something you can shed any light on please?

Can the Solicitor who did the Declaration of Trust recommend a Solicitor that can do this form. I presume your DS will need his former partner to sign the form as well, are they even agreeable to this form being prepared. If you google Deed of Surrender a few specialist property Solicitors come up, maybe worth trying one of these.

@Mindymomo thank you for your reply.
The solicitor who did my son's conveyancing and the Deed of Trust simply told him to find a solicitor dealing with conveyancing and family law. She wouldn't recommend anyone.
Both my DS and I were in contact with his ex (A) up to last year when A was becoming abusive in phone calls and correspondence. This was mainly because DS unfortunately let him know he had met someone else. So our family all had to remove ourselves from his contacts list. There is a family member of one of A's friends who has stored all of A's belongings for him. She may agree to contact A to ask if he would agree to sign a Deed of Surrender. The difficult part is finding a solicitor who will prepare the Deed of Surrender. We have searched online and found several companies who offer this kind of work but all have said they can't help. The only other option is to wait until DS sells the house but it will probably cause complications at a time when he could really do without that.

Conveyancers deal with what you would call non-contentious matters. However what you are describing would probably be considered contentious work. You need to approach a bigger firm and you’re going to need someone that deals with contentious matters - most likely a property litigation specialist.

@Annie098 thank you. We have contacted a larger company. Hopefully will find out next week if they can take it on.

Further to this issue; we have been contacting large legal companies for over a week and nobody is prepared to take this on.
It seems dreadful that co habiting couples are encouraged to take out these trusts to protect both of them in the future, yet there is no way to remove the restriction if the requirements of the Trust are not met by one of the parties. So the property cannot be sold unless my son agrees to give 40k to someone who severely damaged his mental health, paid nothing towards the house and commited a dreadful crime which ruined an innocent person's life.
What also seems odd is that none of the solicitors we have contacted seem to know the process to deal with this, even those who draw up these Trusts themselves. Not expecting anyone here to shed any light on this but hopefully make others aware of the difficulties that can arise.
The awful part about this is that if the Trust had never been done my son would have no problem selling his house now.

"What also seems odd is that none of the solicitors we have contacted seem to know the process to deal with this, even those who draw up these Trusts themselves."

To be frank, it is likely only the very largest (and most expensive) of law firms that will have experience with a Deed of Surrender. It is likely that their charges may equal or be more than the amount that is in dispute here. And how likely would you be to recover that money from a person in prison?

If you're interested then there is a website called "The Legal 500" which lists the most respected solicitors, barristers, law firms, chambers etc in different fields.

Here is a list of solicitors in London that are recognised as being particularly experienced in this area of the law:

https://www.legal500.com/c/london/real-estate/residential-property/

There are also lists of those solicitors outside of London as well split up by different areas.

You may also wish to consult another website by the name of Chambers. They do a similar ranking of lawyers:

https://chambers.com/legal-rankings/real-estate-litigation-london-firms-1:663:11814:1

But seriously, these people generally charge really massive amounts of money.

"The terms of the Trust were that they both had to pay 50% each of the mortgage and cost of any home improvements."

Another approach might be instead of going for a Deed of Surrender to say that his partner has failed to pay his share of the mortgage as required to by the Declaration of Trust and so the missed payments will be deducted from whatever money he is due under the Declaration of Trust.

For example, you say that they bought the house in 2019. I don't know what mortgage he has been paying over that time but, for simplicity, let's assume that it is £1,000 per month.

In that case, his partner would be expected to pay £500 per month. Let's assume that the house is sold this year so that would mean that the mortgage has lasted five years.

This would mean that his partner had failed to pay £30,000 as his half share of the mortgage (£500 x 12 months x 5 years).

You might also want to add in any large expenditure on improvements (eg a new kitchen or bathroom).

Speak to a solicitor as to the best way of achieving this. It may be that your DS takes him to court to recover the £30,000 or however much it is (and costs as well).

His partner obviously does not have £30k so he can then get a restriction on the house title placed against the partner's share of the house.

"So the property cannot be sold unless my son agrees to give 40k ..."

This is true, however, if your DS gets a judgment against his partner for the outstanding mortgage payments over the last five years (£30k or whatever it is) then his partner will have to give your DS the amount that is owed to him.

So, it is likely that your DS will probably have to give this guy some money, but that will only be after deducting whatever the court awards him because the partner didn't pay his 50% of the mortgage.

Although, please, do speak to an experienced solicitor about all of this.

@Another2Cats thank you so much for your reply and for the links.

My son was very naive whilst in this relationship. The rest of the family could see his partner for who he actually is; of course DS wouldn't listen.
After the guy went to prison DS said he would stand by him and actually paid off a huge amount of debt his (now ex) had accrued before they met. This was also because he was worried about bailiffs turning up at the door. If that was added to the unpaid mortgage and home improvement costs it would be more than the 40% equity share he believes he is entitled to.
However all this is academic if no solicitor is willing to look at it. I will try the links and suggestions you have given. As you say, there is no point in pursuing it if court costs will be more than the 40% share. However my son won't have enough money to buy another house if he gave his ex the 40%. The house has such terrible memories for DS so he needs to sell and start again for his own well being.
If we could find a solicitor willing to write to jis ex, pointing out to him that he actually owes my son more than the 40% equity we may be able to sort this out.

Does the ex agree that he isn't entitled to anything? The tricky bit is that if he doesn't then he's not going to sign anything. That's a bigger problem than the mechanics of dealing with the restriction.

If he agrees and will co-operate then the deed of surrender shouldn't be complicated and a half decent firm which has both a matrimonial and property department should be able to sort it out. With the deed in place, it's a straightforward process to get the restriction taken off the title (it's a Form RX4).

But....unless the deed is written in an unusual way when it's really clear that the ex has no past or future entitlement, you'll need to negotiate with him.

Whereabouts are you?

The partner should file a form RX1 with the land registry to remove the restriction. Simple, unless he refuses, in which case he needs to speak to a family lawyer.

OP, no advice but I feel for your DS, it must be stressful for the rest of the family too.
Many conveyancing solicitors will not take shared ownership property purchases on either. Two solicitors turned me down as they said shared ownership buying takes longer and it's more complex. Cherry picking from so called professionals.

We have not contacted the ex about it yet as we knew we needed a solicitor to draft the Deed of Surrender so thought we would attempt that initially.
Last October DS broke the news to his ex that he was completely ending the relationship and we had to end all contact between the ex and all our family as he was calling us several times a day ranting about DS ending things and being horribly abusive. So we can't contact him to see if he will agree to sign anything. He was talking about demanding his share of the house though, so he clearly believes he is entitled to the 40% equity.

We were hoping that a solicitor would draft a Deed of Surrender and write a letter to accompany it; to explain why he isn't entitled to anything. The Deed is very clear and simple in that it states what share each party is entitled to on the sale of the house, and what their obligations are. Another thing is that the house purchase also used a Help to Buy Loan. DS has paid that off himself with some help from me, so DS has paid a lot more than 50% anyway.
We are in Manchester so no shortage of solicitors here.

It sounds as though the partner will not roll over quietly and go away. If he does not want to voluntarily sign a Deed of Surrender then you cannot make him. It would be a waste of time getting a solicitor involved if his partner will not willingly agree to it.

As mentioned above, another approach which avoids the need for a Deed of Surrender altogether would be to make a claim against the partner in the county court for everything that DS has paid out that the partner should have paid.

Once your DS gets a county court judgment against the partner then what he does then is to get a charge placed on the home (Charging Orders Act 1979) against the partner.

Any competent solicitor will likely have experience of this.

This puts a charge against the partners beneficial interest in the house but not your DS's. What this means is that when the house is sold the money that your DS has been awarded as a CCJ is taken from the partners share before he gets any money. If the CCJ amount is more than the value of his share of the house then the partner gets nothing.

This is likely an easier way of doing things if the partner will not agree to a Deed of Surrender.

@Another2Cats Thanks again. Much appreciated. We will see what the solicitor we speak with on Friday has to say. It would be good if we can find out if the ex will agree to sign a Deed of Surrender before involving a solicitor. Although we cannot contact him my daughter has looked into the possibility of her getting a visit to speak to him. She may be able to reason with him.

The solicitor has replied to say that we can try to achieve a Promisory Estoppel if A will not sign a Deed of Surrender. Solicitor has explained how to go about that but not how it will help. I have researched it and cannot see how it will resolve the issue as it "can only be used as a shield, not a sword" so cannot be used to make someone do something, only to defend yourself. I have queried this with the solicitor but am aware that it may take around a week for them to get back to me.

@Oneblindmouse
I have found this forum helpful
https://www.lemonfool.co.uk/viewforum.php?f=2&sid=529add6cc6d16a55c5a6f99cd1ce69b2
You could also try legal beagles.
What a nightmare for you .

The Declaration of Trust outlines the financial contributions and shares of equity. Since your son's ex-partner did not meet the terms, it may be possible to argue that the ex-partner has forfeited any claim to the equity. Deed of surrender would effectively release the ex-partner's interest in the property. However, obtaining the ex-partner's agreement to sign this deed is crucial. Given the history of abuse and the ex-partner's incarceration, this might be challenging.

Promissory Estoppel can prevent someone from going back on a promise that another person has relied upon to their detriment. While it is typically used defensively, it might help in negotiations or in court to argue that the ex-partner should not benefit from the equity due to their lack of contribution and the reliance on their promise to contribute.

Here are the steps to consider for moving forward with both the Deed of Surrender and the concept of promissory estoppel:

Deed of Surrender
Engage a Solicitor:

1. Ensure the solicitor has experience with Declarations of Trust and property disputes.

Drafting the Deed:

1. The solicitor will draft the Deed of Surrender, which will outline that the ex-partner relinquishes any claim to the property.
2. The deed should clearly state the reasons for the surrender, including the ex-partner's failure to meet the financial obligations outlined in the Declaration of Trust.

Communication with the Ex-Partner:

1. Given the history of abuse, it is advisable to have the solicitor handle all communications with the ex-partner.
2. The solicitor can send a formal letter to the ex-partner, explaining the terms of the Deed of Surrender and why it is in their best interest to sign it.

Execution of the Deed:

1. If the ex-partner agrees, they will need to sign the Deed of Surrender in the presence of a witness.
2. The signed deed should then be registered with the Land Registry to remove any restrictions on the title.

Promissory Estoppel
Documenting the Promises:

1. Gather all evidence of the ex-partner's promises to contribute financially to the property. This can include written agreements, emails, text messages, or any other form of communication.
2. Document the reliance on these promises, such as your son's financial contributions and any detriment suffered due to the ex-partner's failure to fulfil their promises.

Legal Argument:

1. The solicitor will need to prepare a legal argument based on the principle of promissory estoppel. This will involve demonstrating that:
2. The ex-partner made a clear and unequivocal promise.
3. Your son relied on this promise to his detriment.
4. It would be unjust for the ex-partner to go back on their promise.

Court Application:

1. If the ex-partner refuses to sign the Deed of Surrender, the solicitor may need to apply to the court to have the restriction removed.
2. The court will consider the evidence and may grant relief based on the principle of promissory estoppel, preventing the ex-partner from claiming any equity in the property.

@Thisoldheartofmine, thank you I will have a look at that.
@Unwildered thank you for such a comprehensive reply.
We have had trouble finding a solicitor to even look at this for us. We have now got a response from one who has said almost word for word what you have explained and have said they can take it on.

DS really doesn't want it to go to court as it's entirely possible that the costs may be really high. He hasn't seen what the solicitor has suggested yet as they have been communicating only with me thus far. DS took his driving test this morning and I wanted to leave things until after that.
Thankfully he passed (1st time🙂) and is coming to see me soon so we will discuss what the solicitor has said.

Op, it’s been ten months, how much equity can there bw in that period, wouldn’t it be better just to give him half if what ever small amount it is?

It was ten months from moving into the house in October 2019 until his ex was imprisoned in August 2020. There is quite a lot of equity in the property now. DS has been paying the mortgage alone for over 4 and a half years. He bought the house on the premise that the costs would be shared.
DS doesn't want to try to get A to pay what was originally promised, and won't fight for that. All he wants

Posted too soon. All DS wants is to be able to sell his house and not have to hand over a large percentage to his ex. If he had to do that he wouldn't be able to afford another property.

You might need to take a pragmatic approach OP. Your DS's solicitor could suggest tot the ex that he will get:

• his share of the equity in the house (I.e the value less the mortgage amount and costs and expenses of selling)
• less the amounts that the ex was due to pay under the terms of the trust.

That could be dealt with on a fairly straightforward basis on the ex agreeing to sign a deed of surrender and, depending on the amounts involved might be less than the legal costs of pursuing an alternative.

@thinkfast I agree. This needs a different approach.

DS and I have discussed this at length this afternoon as we had a reply from the only solicitor who wass prepared to consider taking this on.
The solicitor said that they want a retainer (amount not specified) and said "I am amenable to providing your with a letter of advice on a fixed fee basis of £1,500 plus Vat. Thereafter, I will be in a position to furnish you with a quote in relation to likely costs expected to be incurred subject to your updated instructions".

I am troubled by the typos in the email (there are more than those in that paragraph) as well as the concern that the legal costs could be horrendous, along with the stress of dragging this through the court.

DS is going to seek a solicitor who will, for a fixed fee, draft a Deed of Surrender and send it to A. with a letter explaining that, by the time the house is sold, A. will owe even more in missed contributions, which will be deducted from his share of the proceeds. In fact the amount he will owe is likely to be more than what he would be entitled to.

Ps - just a thought. I hope the terms of the trust say what your son thinks it does. Suggest your son asks the new solicitor to check this.

@thinkfast here is what the Declaration says (personal details not included). The solicitor has read it:

WHEREAS:

(κ) The Property, details of which are contained in the Schedule hereto, is to be registered in the name of the Transferee on transfer of the new freehold title to the Transferee on

and is to be held by him subject to a restriction registered at HM Land Registry.

(b) "the Mortgage(s)" means either or both of any first and second legal charge registered at the Land Registry in respect of the Property.

(c) The parties make this declaration to set out their respective interests in the Property and in its proceeds of sale and net rents and profits thereof until sale subject to mortgage

NOW THIS DEED WITNESSETH as follows:-

1. The Transferee DECLARES that he holds the Property on a trust of land.

1. The Transferee DECLARES that he holds the Property its net rents and profits and its proceeds of sale after deducting therefrom the costs of sale and mortgage repayment UPON TRUST for himself and the Contributor as tenants in common:

(a) As to 20% for the Transferee absolutely, representing the deposit paid by the Transferee plus a percentage of any increase in value of the property;

(b) and in addition a further 50% of the balance of the sale proceeds for the Transferee absolutely and

(c) As to 50% of the balance of the sale proceeds after payment of the sums referred to in (a) and (b) above for the Contributor absolutely:

E The Transferee and the Contributor hereby undertake to share equally the liability for and the payment of all outgoings in respect of the Property up to and including the date of sale of the Property including all repayments in respect of the Mortgage or any subsequent legal charge and to keep the Property in good repair and to observe and perform all of the terms and conditions of the Mortgage(s).

IN WITNESS whereof this Declaration has been duly executed the day and year before written.