Public Guide 23C (LAA) – Applications lodged by the Legal Aid Agency for a restriction to protect a statutory charge arising under the Legal Services Act 1988, the Access to Justice Act 1999 or the Legal Aid, Sentencing and Punishment of Offenders Act 2012
Updated: April 2013
This edition of the guide replaces the July 2012 edition. The guide has been amended following the abolition of the Legal Services Commission and its replacement by the Legal Aid Agency.
Scope of this guide
This guide is intended to help people who may receive a Land Registry notice about an application lodged by the Legal Aid Agency for a restriction to protect a statutory charge arising under the Legal Services Act 1988, the Access to Justice Act 1999 or the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
A restriction is an entry in the title register of a property that prevents Land Registry from registering certain transactions (such as a transfer or a mortgage) until the terms of the restriction have been complied with. For example, somebody’s consent may need to be obtained.
If you need more information about the application or why it has been made, please contact the Legal Aid Agency. Their details are in the notice we have sent you.
You may wish to object to the application. Our notice tells you how to do this and the date by which you have to do so.
If you do object, Land Registry will consider what you say. However, your objection may not be successful and we may still complete the application. This will be so if what you have said does not (as a matter of law) affect the applicant’s right to enter a restriction in your title register. In such a case, the registrar will have decided that your objection is ‘groundless’. This means that if the application is otherwise in order, we must complete it.
2 Common reasons for objection
This guide attempts to answer some points that are often made in response to applications lodged by the Legal Aid Agency (or formerly by the Legal Services Commission) for a restriction to protect a statutory charge. The points in section 3 Points/answers are examples of common objections which may not be successful, for the reasons given in the answers. If your objection raises one or more of these points, it may not affect the applicant’s right to apply for a restriction and the registrar may rule your objection groundless.
Please read the guide carefully before you reply to our notice. If you need legal advice please see a solicitor or other qualified legal adviser as soon as possible. Land Registry staff cannot give you legal advice. Possible sources of advice are:
a law centre
a Citizens Advice Bureau.
P1: It was my co-owner that received legal aid or funding, not me.
A1: If your co-owner has received legal aid or funding for legal services and a charge (called a ‘statutory charge’) affecting their interest in the property has arisen1 to secure repayment of all or part of that legal aid or funding, the Lord Chancellor has a right to protect that charge by a restriction.
1 Under the provisions of the Legal Services Act 1988, the Access to Justice Act 1999 or the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
P2: I didn’t know that legal aid or funding could create a charge over my interest (or my co-owner’s interest) in the property.
A2: When you (or your co-owner) applied for legal aid or funding for legal services, your (or their) legal adviser should have explained the position. Where a statutory charge exists over a beneficial share, the Lord Chancellor is entitled to protect that charge by a restriction. This applies even when the funding was not provided to you personally but to a person who owns the property with you.
P3: I think that it is unfair for a charge to be imposed or that the Legal Aid Agency has not followed the proper procedures.
A3: The fact that you think that the statutory charge is unfair cannot be the basis for an objection. If you consider that the Legal Aid Agency has not followed the correct procedures then an objection will be groundless unless what you allege would (if proved) mean that the charge has not arisen.
P4: I am repaying (or have offered to repay) the Legal Aid Agency by instalments.
A4: Where a statutory charge over a beneficial share has arisen then, as long as any money is still owing the charge remains in force and the Lord Chancellor is entitled to protect it by a restriction. It does not matter what payment arrangements have been made.
P5: I disagree with the amount claimed to be.
A5: An objection purely on this basis will be groundless, unless you are arguing that:
the amount originally owing was such that a statutory charge never arose, or
the whole amount owing has been repaid.
Apart from such cases, a dispute simply about the amount owed does not question the existence of the statutory charge and the Lord Chancellor will be entitled to protect it by a restriction.
P6: The matter for which I received legal aid or funding was finished a long time ago. Does the Lord Chancellor still have the right to a restriction?
A6: As long as any money is still owed, the statutory charge remains in force and the Lord Chancellor is entitled to apply for a restriction. However, it is not entirely clear whether a delay of more than 12 years in applying for a restriction might mean that the Lord Chancellor loses the right to make such an application (under the Limitation Act 1980).
P7: Will the restriction stop me from selling or mortgaging my property?
A7: Not necessarily. The restriction will not stop you from selling or mortgaging, provided that its terms are complied with (if they apply). It would however be up to a buyer or a lender to decide whether to proceed if there is a restriction in the register.
P8: Can the restriction be removed in future if I do not object now?
A8: Yes. When all moneys secured by the statutory charge have been paid, the Legal Aid Agency should provide documentary evidence to confirm this. You can then send this evidence to Land Registry with form RX3* to cancel the restriction. Alternatively you can ask the agency to apply to Land Registry (using form RX4*) to withdraw the restriction.
*Note: Forms RX3 and RX4 can be downloaded in English and Welsh from our website at www.landregistry.gov.uk or you can get copies by phoning Customer Support on 0844 892 1111 (0844 892 1122 for a Welsh-speaking service).