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Procedural guide—application for a freezing order—family proceedings

Procedural guide—application for a freezing order—family proceedings Where there are concerns that a party intends to dispose of assets in a way that will defeat a claim for financial provision, or has already done so, immediate action may have to be taken to secure the assets. Freezing orders (historically known as Mareva injunctions) are an interim remedy and may be made under Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 20 or under the inherent jurisdiction. An application to restrain future dealings is most commonly made under section 37 of the Matrimonial Causes Act 1973 (MCA 1973) or Schedule 5 Part 14, para 74(2) of the Civil Partnership Act 2004 (CPA 2004). The purpose is to prevent a party removing assets located in England and Wales, or dealing with assets wherever they are located. The applicant has to show that there is a good arguable case against the respondent and a real risk that a judgment will go unsatisfied because of the disposal by the respondent, or that refusal...

Leasing or buying from an administrator—checklist

Leasing or buying from an administrator—checklist Title Administrator appointed by the court Where any administrator is appointed by the court under paragraph 11, Schedule B1 of the Insolvency Act 1986 (IA 1986), on the application of the company, its directors and/or any of one or more of its creditors, the title deeds should include certified copies of: • the administration order, and • any further order(s) under IA 1986, Sch B1, paras 91–95 for the appointment of any new administrator following the death, resignation or removal from office etc of the original or any subsequent administrator Administrator appointed by holder(s) of qualifying charge, the company or its directors Where the administrator is appointed by the holder(s) of a qualifying floating charge (under IA 1986, Sch B1, para 14) or by the company or its directors (under IA 1986, Sch B1, para 22), the title deeds should include certified copies of: • the notice of appointment: ◦ in a form complying with the requirements of IA 1986, Sch B1, para 14...

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Excluded property from 6 April 2017—flowcharts

Excluded property from 6 April 2017—flowcharts These flowcharts are designed to help determine if an asset is excluded property for the purposes of UK inheritance tax (IHT) on or after 6 April 2017. The flowcharts consider whether an asset is excluded property or not, depending on the situs of the property and the domicile of the beneficial owner or settlor as appropriate. However, the detailed provisions relating to excluded property should be referred to and practitioners should also consider whether a double tax treaty may apply to override the excluded property regime depending on the particular circumstances of a matter. See Practice Note: Double taxation relief—summary. Conversely, unilateral relief from IHT may apply where a tax of a similar nature has already been levied in respect of the same asset by a foreign tax authority. For further information, see Practice Notes: Excluded property trusts—key events affecting IHT status and Situs of assets for succession and IHT. Situs of property The situs of an asset is important for determining the...

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Land registration—overriding interests, occupiers and interests which have lost overriding status

This Practice Note looks at overriding interests under the Land Registration Act 2002 (LRA 2002). It contains detailed content on actual occupation as an overriding interest as well as linking to additional relevant content which provides detailed information on other overriding interests. It also touches on interests which have lost overriding status since LRA 2002 came into force.Overriding interests under the Land Registration Act 2002Overriding interests generallyOverriding interests are unregistered interests which affect registered land even though they are not shown on the register. They bind both the registered proprietor and any person who acquires an interest in the property.Overriding interests fall into two categories:•those that override the first registration of land; these are set out in LRA 2002, Sch 1•those that override a registered disposition of land for value; these are set out in LRA 2002, Sch 3Both categories of overriding interest include the types of interest set out below.Leases for less than seven yearsMost leases for less than seven years are overriding interests. However, there are exceptions; a...

Charity land disposals

Identifying charity landCharity land can be held by any person or group of persons. The purpose for which the land is held determines whether or not it is charity land. In many instances land is held by a registered charity. However, it is possible that a company (whether limited by shares or guarantee), a local authority, a body of trustees or an unincorporated association might be holding land on the terms of a charitable trust without necessarily even being aware that it is doing so. See below for the statutory definition of ‘charity land’.Different types of charity for the purpose of land transactionsThere are three types of charity for the purpose of disposal, each of which requires a different procedure:•exempt charities—any charity listed in Schedule 3 to the Charities Act 2011 (CA 2011) is an exempt charity (this includes academies, foundation and voluntary schools, sixth form college corporations and most universities, certain museums and galleries and various charitable societies (eg housing associations)•non-exempt charities—although the term 'non-exempt charity' does not actually...

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Underlease of whole by way of reference to the terms of the head lease

Underlease of whole by way of reference to the terms of the head lease HM Land Registry Prescribed Clauses LR1. Date of the lease [date] LR2. Title Number[s] LR2.1 Landlord's title number[s] [title numbers out of which this underlease is granted (but leave blank if the Landlord’s title is unregistered)]LR2.2 Other title numbers [existing title number(s) against which entries of matters referred to in LR9, LR10, LR11 and LR13 are to be made] LR3. Parties to this lease Landlord [[OPTION 1 — name of Landlord (not an overseas entity)] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address]OR[OPTION 2 — name of Landlord (overseas entity)] [incorporated OR formed] in [territory of incorporation/formation] (registration number [number]) [and registered at Companies House (company registration number BR[number])] (overseas entity ID [[number] OR not required]) whose registered office is at [address]] Tenant [[OPTION 1 — name of Tenant (not an overseas entity)] [of OR incorporated in...

Overage deed (long form—percentage of amount by which development receipts exceed a series of thresholds)

Overage deed (long form—percentage of amount by which development receipts exceed a series of thresholds) Date: [insert formal date of deed DD-month-YYYY] Parties 1 [insert name of seller ][of [insert address] OR incorporated in England and Wales with company registration number [insert company registration number] whose registered office is at [insert address]] (the Seller); and 2 [insert name of buyer ][of [insert address] OR incorporated in England and Wales with company registration number [insert company registration number] whose registered office is at [insert address]] (the Buyer). Recitals (A) [By a sale and purchase agreement (the 'Contract') dated [insert date] the Seller agreed to sell the Property to the Buyer.] (B) By a transfer dated [on the date of this deed OR [insert date in its full format DD-month-YYYY]] the Seller transferred the Property to the Buyer. (C) This deed is supplemental to [both the Contract and] the Transfer. 1 Definitions In this Deed, the following definitions apply: Acceptable Planning Permission • Planning Permission which is...

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Can a unilateral notice be registered against a property owned by a party to financial remedy proceedings where that property is co-owned by a third party?

Can a unilateral notice be registered against a property owned by a party to financial remedy proceedings where that property is co-owned by a third party? Section 30 of the Family Law Act 1996 (FLA 1996) provides that where one spouse (or civil partner) has the right to occupy a dwelling house, the other spouse is entitled to register home rights, provided that the property has been the matrimonial home. Those home rights may be protected, in the case of a property held in the sole name of one spouse only, by way of a notice being registered with the Land Registry. If the title to the property is registered, then the application for the home rights notice should be made using Form HR1—Application for registration of a notice of home rights. If the property is unregistered, an application may be made to the Land Charges Department for the registration of a Class F land charge. A spouse may only protect their interest in one property at...

Can an application under section 37 of the Matrimonial Causes Act 1973 for a freezing order be made after a final order has been granted?

Can an application under section 37 of the Matrimonial Causes Act 1973 for a freezing order be made after a final order has been granted? Section 37 of the Matrimonial Causes Act 1973 (MCA 1973) is a powerful weapon. It enables the court to restrain a proposed disposition of an asset, or to set aside a disposition of an asset. As a result, a party who seeks to, for example, transfer property to a family member with a view to it falling outside of the matrimonial pot can be thwarted by the operation of the section. The disposition must be made with the intention of defeating the claim of a spouse for financial relief, which is a high bar; however pursuant to MCA 1973, s 37(5), this intention is presumed (though the presumption is rebuttable) where the disposition was made within three years of the date of the application to set aside the disposition. The section does not apply to dispositions made for valuable consideration to a bona fide third...

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USA—Spain loses another stay application in award enforcement claim

Law360: A DC Federal Judge has refused Spain's request to maintain a stay in Blasket Renewable Investments LLC's litigation to enforce a €77m arbitral award while the country challenges a DC Circuit ruling in parallel cases before the US Supreme Court.

Question of the week: Spouses A and B are the registered owners of a property held as tenants in common and A has died, appointing the couple’s adult child (C) as executor. B has lost capacity and C is also B’s attorney under a registered enduring power of attorney. Does C have power to appoint a second trustee of the property in order to sell it or is the authority of the Court of Protection required?

This Q&A considers whether an EPA attorney needs to obtain the authority of the Court of Protection to appoint a second trustee of property in order to sell it.