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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10238
Experience:  I have been practising for 30 years.
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I am currently selling a property. This property as a

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I am currently selling a property. This property as a restriction on it, an uplift clause with ten years remaining. the clause basically says if i develop the land outside of the two properties existing then i must give x percent to the beneficiary. My title deeds are consequently "possessory" this what it says
"No disposition of the registered estate other than a charge by the proprietor of the registered estate or the proprietor of any registered charge is to be registered without a written consent, signed by Mr D and Mr A of (x) or their conveyancer X solicitors.
My solicitors are telling me that although i am insisting this existing charge stays with my property and consequently sold with my property ( because due to a new parking arrangement and a clause i have put in the contact, saying no development allowed) that they still need to seek Mr A permission!This is delaying the process because they are having difficulty tracking him down. My point is if i sell the property with this restriction still on place, surely the solicitors as stated in the restriction from the Land Registry can sign on his behalf. My solicitors have many times referred to an RX4 form, as far as i know this is a form to remove the restriction, am I correct? As i said earlier myself and my buyers are happy for this restriction to stay in place because it actually inconsequential.

This is called an overage provision. It is not uncommon if land or property is sold for a purpose other than development and is then subsequently developed.

Are you actually doing any development or simply selling the property as it is?

Is the buyer happy to buy with it as it is or is the buyer the one who is insisting on this?

Customer: replied 1 year ago.
The original property and been renovated and now being sold on. The possible plot at the bottom of the garden is now a parking area. I have included in the contract that no futher development is to take place( I still own the property next door, so this clause is to protect me too.) I am at a loss to understand why I need Mr A written permission ! If the overage stands and stays with the property surely as it says on the land registry the conveyancer can sign .

I’m sorry to tell you that no buyer will buy the property without the consent. That is because of the wording of the provision which says that he can’t be registered without written consent Of them or their solicitor.

The buyer could buy it and the provision will go with the land, but they would not be able to register the property.

You are going to have to either find the person with the benefit of the provision or make an application to court to get the provision lifted in the absence of the beneficiary of the provision.

If you are making this latter application you will need to prove to the satisfaction of the court that you have made all reasonable attempts to trace the beneficiary of the provision which would include instructing Private investigators or tracing agents and putting a notice in the London Gazette and the local press.

Can I clarify anything for you?

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Best wishes.


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Customer: replied 1 year ago.
The solicitors mention on the land registry document is coincidentally my solicitor also, as you said it states that either they or their solicitor can sign. this is why I am confused. Mr D has given consent already

It says that you need the consent of Mr D and Mr A OR their conveyancer.

You have the consent of Mr D but not Mr A .

Because the solicitors mentioned in the land registry document is also your solicitor, there is a potential conflict of interest which is presumably why they are not signing the document.

What you might want to do is ask them whether they could give consent if you had the file transferred to another firm of solicitors and the rest of the file was dealt with by the new solicitors and this firm was then acting independently on behalf of Mr D and Mr A.

At the moment, your existing solicitors seem to be coming up with all the obstacles without making any suggestions as to how this can be resolved.

Customer: replied 1 year ago.
I have suspected that something was amiss for quite a while
Because they are not answering my question about this situation ! They just keep fobing me off! I think what you have explained is exactly the problem ! I have purchased the probate and waiting for that to come through because Mr A address should be on there, but I fear this is now going to take many weeks. Thank you for your help and clarification which is what I have asking for for sooooo long

If Mr A has died, then the executors could deal with this.