What Is A Home Rights Notice?
“What Is A Home Rights Notice?” Managing Partner and Family Law Solicitor, Fiona Moffat, discusses in her latest Timms blog…
What Is A Home Rights Notice?
If you are going through a divorce you may unexpectedly receive a letter from HM Land Registry notifying you that a Home Rights Notice has been registered against your property. This can cause significant upset, especially if it is received during the sale of the property as you may subsequently find out that the sale cannot go through due to the appearance of this Notice. This can cause significant delays and pressure during the conveyancing process and may lead to an abortive sale.
When a couple marry or enter into a civil partnership, this automatically creates Home Rights between them. This means that any partner to a legal binding union has an automatic legal right to live in a property owned by their partner. The purpose of Home Rights is to prevent one person from being able to sell the house and leave the other person unfairly homeless.
Matters become more complex when, during a separation, the person who owns the family home decides to sell it. Of course, as a sole owner, they would be able to sell the property and deal with it as they wish, a perspective buyer may be unaware that there is a spouse in the background who has Home Rights to live in the property. The purpose of a Home Rights Notice is so that the non-owning legal partner can put a Notice on the property at the Land Registry stating that they have Home Rights in the property. The impact of this is that the property sale cannot go through until that Home Rights Notice has been removed.
Why Would I Wish To Register A Home Rights Notice?
After a married couple have separated, the non-property-owning legal partner can continue to live in the family home, even if it is not in their name until financial matters arising on the separation are resolved.
A common danger is when the owner of the property wishes to sell the property, against the other’s wishes. This would leave the legal partner homeless, and could cause significant issues for any financial proceedings as the proceeds of sale of the property will all be going to the property owning spouse. Applications to freeze the proceeds of sale would have to be considered and urgently in those circumstances.
Therefore, it is vitally important that if you are living a property not in your name and you are going through a separation, that you contact a solicitor to place a Home Rights Notice upon the property. The process is very straightforward and involves an application to HM Land Registry. As long as you have legally married the owner of the property and you are intending to use the property as your home, then the application should be granted. Once the Home Rights Notice is on the property, it essentially stops a sale of the home without the non-owner of the property knowing. This can allow the non-property-owning legal partner to reside within the home for potentially the duration of the marriage.
How Do I Remove A Home Rights Notice?
The Home Rights Notice will usually last as long as a legally married partner has Home Rights in respect of the home. Home Rights are granted by way of marriage and so the easiest way to end those Rights is by getting a divorce. As soon as the Decree Absolute has been granted (or a final order in civil partnership cases) the parties are no longer married and so the Home Rights Notice ceases to exist once HM Land Registry have been notified of the divorce.
The Home Rights Notice can also be brought to an end by the death of either person or the beneficiary of the Home Rights Notice agreeing to voluntarily remove it. Normally this would only take place when an agreement as to the division of the finances has taken place.
Another way of removing a Home Rights Notice is by way of an Order of the Court. The Court has the power to direct that the Home Rights should be removed for example, if the non- owner has acted in an abusive manner. This allows the court to make what is known as an Occupation Order under Part IV of the Family Law Act 1996, essentially removing a person’s Home Rights and by doing so the Home Rights Notice would also be removed.
How Can Timms Help?
This is a complex area of law and so if you are unsure as to whether you need a Home Rights Notice or whether one has been placed on your property and you are seeking for it to be removed, then please do get in touch with us and seek legal advice.
If you are going through a divorce or separation then it is important to get legal advice from a family specialist before seeking to sell any properties or assets before the divorce has reached Decree Absolute stage, as the above issues can result in significant legal costs, and abortive sale costs, if the correct approach is not followed.
If you would like further information on this matter, or any other family law matters then please do not hesitate to contact me at f.moffat@timms-law.com or via phone on 01332 364436. Alternatively, you can visit the Family Page of our website here.
August 2022