Q&As

An individual has bought a property with a home rights notice registered against the title. While they have managed to register the transfer and their mortgage (the notice was registered before the mortgage), the notice is preventing them from remortgaging. Do they have any grounds to apply to the court for the removal of the notice?

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Produced in partnership with Helen Galley of XXIV Old Buildings
Published on LexisPSL on 15/08/2017

The following Property Q&A Produced in partnership with Helen Galley of XXIV Old Buildings provides comprehensive and up to date legal information covering:

  • An individual has bought a property with a home rights notice registered against the title. While they have managed to register the transfer and their mortgage (the notice was registered before the mortgage), the notice is preventing them from remortgaging. Do they have any grounds to apply to the court for the removal of the notice?

Home rights or more properly matrimonial home rights are creatures of statute—the Matrimonial Homes Act 1967 as amended by the Family Law Act 1996 (FLA 1996). The intention is to create a judicially protected right of occupation in favour of a spouse or civil partner who has no right of occupation by virtue of an estate, interest, contract or statute or only has an equitable interest in it. In most, but not all cases, it arises where the legal estate is vested solely in the husband, even if he holds on trust for himself and his wife. The wife has the protected rights but the husband does not because he does not need them.

The right is:

  1. not to be evicted or excluded from occupation; and

  2. the right to enter and occupy with leave of the Court

The rights will only be brought to an end by:

  1. the death of the other spouse or civil partner

  2. the termination of the marriage or civil partnership otherwise than by death; or

  3. the determination of the spouse or civil partners’s entit

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