What is a Home Rights Notice?
If you are going through a divorce you may suddenly receive a letter from HM Land Registry stating 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.
When a couple enters into a marriage/civil partnership, it automatically creates Home Rights between them. This means that any spouse has an automatic legal right to live in a property owned by their significant other. The purpose of Home Rights is to prevent one party from being able to ‘kick out’ the other party from the Family Home if they enter into any marital difficulties, and so it is designed to prevent a spouse from being made unfairly homeless.
Matters become more complex when, during a separation, the party who owns the family Home decides to sell it. Of course, as they are the sole owner, they are within their legal right to sell the property, however, any 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 spouse can put a Notice on the title deeds stating that they have Home Rights in the property. The impact of this is that the property sale cannot go through unless that Home Rights Notice has been removed.
Why would I wish to register a Home Rights Notice?
The main purpose of a Home Rights is to prevent the non-property owning spouse from being removed from their own home. After a married couple have separated, the non-property owning spouse can continue to live in the family Home, even if it is not in their name, because it belongs to the other spouse and so the non-property owning spouse will automatically have Rights to live in the property.
A common danger is when the property owning spouse wishes to sell the property, against the other’s wishes, which would leave the non-property owning spouse homeless, and could also cause significant issues for any financial proceedings as the proceeds of sale of the property will all be going to the property owning spouse.
Therefore, it is vitally important that if you are the non-property owning spouse 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 the parties are legally married and the spouse is using or intending to use the property as their primary residence, then the application should be granted. Once the Home Rights Notice is on the property, it essentially stops a sale of the Home, this can allow the non-property owning spouse 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 spouse has Home Rights in respect of the property. 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 spouse 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 ability to remove a person’s Home Rights, for example, if they have 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.
The final way of removing a Home Rights Notice is by arguing matters through the Land Registry. This can be done in the event that the Notice should never have been registered in the first place. This may be because the parties were not actually married, the parties are already divorced in a separate jurisdiction, if the beneficiary of the Home Rights Notice has placed a Home Rights Notice on more than one property, or it is placed on a property which they have never used as a Family Home, such as a rental property or holiday Home. This is because a party can only use a Home Rights Notice in relation to a property where they are living, or intending on living, and can only apply to one property. Therefore, if there has been a technical breach of those rules, HM Land Registry can remove the restriction themselves.
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 ourselves on 0117 909 4482 or firstname.lastname@example.org, as we can discuss matters together.
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.