Charging Order? The myth

Land_Registry · 5 October 2016 at 1:27PM

eggbox wrote: »

Thanks LLR!

Can I ask what the situation is, regarding the transfer of ownership of a property, if a creditor who has been granted a charging order, that can be registered as an equitable charge on the deeds, doesn't do so?

You deal with what is registered - you can't register it as X and then claim benefit of Y. But don't forget the CO is still a CO in its own right so still has to be 'dealt with' I assume quite separate from the registered title which covers the legal ownership rather than the beneficial one

eggbox · 5 October 2016 at 3:33PM

Hi LLR

Thanks for clarifying but it's the original CCJ that would still have to be dealt with as a Charging Order is only a method of enforcement on an asset.

If the asset the Charging Order is supposed to be attached to has been disposed of them it makes it extremely difficult to recover any proceeds?

An equitable charge registered makes recovery of proceeds extremely likely (albeit in the future) but (as I read it) what you are saying is that if a CO has been made that can be registered as equitable, but the creditor has failed to register it properly, then it's tough luck on the creditor?

Land_Registry · 5 October 2016 at 3:54PM

eggbox wrote: »

Hi LLR

Thanks for clarifying but it's the original CCJ that would still have to be dealt with as a Charging Order is only a method of enforcement on an asset.

If the asset the Charging Order is supposed to be attached to has been disposed of them it makes it extremely difficult to recover any proceeds?

An equitable charge registered makes recovery of proceeds extremely likely (albeit in the future) but (as I read it) what you are saying is that if a CO has been made that can be registered as equitable, but the creditor has failed to register it properly, then it's tough luck on the creditor?

You deal with what is registered as far as the title is concerned. So you have two restrictions to comply with.
Can't see how the creditor can look to move the goalposts unless they now apply to note the CO as an equitable charge for example. You can't register it as a restriction and then expect it to be treated as something else from a registration perspective

Hopefully the specifics around this example will offer a clue as to what's what but in my experience the details registered with us are no more than the application form itself

Eliaskash · 5 October 2016 at 4:17PM

Land_Registry_representative wrote: »

You deal with what is registered as far as the title is concerned. So you have two restrictions to comply with.
Can't see how the creditor can look to move the goalposts unless they now apply to note the CO as an equitable charge for example. You can't register it as a restriction and then expect it to be treated as something else from a registration perspective

Hopefully the specifics around this example will offer a clue as to what's what but in my experience the details registered with us are no more than the application form itself

OK , LLR that makes sense.
Then it seems like good fortune that this "mistake" has happened ( if that is what it is).

DAKOTA45 · 5 October 2016 at 4:48PM

Hmmm… I have a question for LRR, too… I recently looked online to see who owned the surrounding land alongside my garden as I had my suspicions that it had been sold recently. I was right, it has.

I'm a bit confused, as my neighbour, (who has two separate COs against my property to secure a debt), recently sold a piece of land adjacent to my property. In the deeds, there is no mention of his address, but he refers to my property as "The retained land"… I'm completely at a loss as to what this can mean… why is my property 'retained'? It's as though it is me that's selling the land…and retaining my garden.
This neighbour has a history of tax evasion and I'm wondering if he is trying to avoid CGT, the land being agricultural and not part of his garden…or it could be so that the buyer can easily get planning permission by saying it used to be part of my garden...

I am worried he is doing something weird…I could PM you a copy of this title deed…

Hope you can help, please?

D45

Land_Registry · 5 October 2016 at 5:00PM

DAKOTA45 - deeds will often have a set of defined terms to make it easier to follow. A bit like you being D45 or DAKOTA45

What he's called it makes no wider difference re it's use, CGT or planning or anything as it is still just a piece of land for those purposes

The definition 'retained land' is only relevant to the deed itself as that is where it is defined and then used

DAKOTA45 · 6 October 2016 at 8:17AM

Many thanks, LRR! I just wondered why he didn't attach it to his own property… we share a boundary and the sold land attaches to his own property as well as mine. He is the one selling off pieces of his land and I would have expected the 'retained' land as being that which he has not yet sold… that's all it was.

D45

Land_Registry · 6 October 2016 at 9:56AM

Eliaskash - just to confirm that the COs were registered as form K restrictions as that is what the solicitor applied for.
As such if there has been a transfer for money by two or more proprietors to a third party, and the restrictions have been complied with, they will be overreached and automatically cancelled

Eliaskash · 6 October 2016 at 9:58AM

Find below the response received this morning from Land registry customer service with regard to the restrictions.
They are in line with what we have been thinking ( that it was an oversight from the creditors ) and say exactly what LR Rep has mentioned previously.

---- ----

Dear EXX,

Thank you for your emails.
The restrictions have been registered as these are what the applicant applied for at the time. They did not apply to note the charging orders as equitable charges but as form K restrictions.
As such if there is a transfer for money by two or more proprietors to a third party then the restrictions can be overreached and automatically cancelled when the transfer is registered and providing they have been complied with.
regards
XXXXXX
Customer Policy and Handling

Eliaskash · 6 October 2016 at 11:21AM

Land_Registry_representative wrote: »

Eliaskash - just to confirm that the COs were registered as form K restrictions as that is what the solicitor applied for.
As such if there has been a transfer for money by two or more proprietors to a third party, and the restrictions have been complied with, they will be overreached and automatically cancelled

Just saw now that you posted your reply almost the same time as me.
My lawyer is not agreeing that the creditors do not have to pay the debt first .

I have suggested the lawyer rings Land Registry to check for themselves and update their knowledge .

Thanks for all your help.

Charging Order? The myth

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