Charging Order? The myth

eggbox · 28 November 2017 at 11:05AM

MarineBoy wrote: »

[Selling from D1D2 to D2 or D2X.]

Thank you all who have stayed with this thread, and MSE for facilitating it - and especially the batting away of things like 'trust' issues. (I've read almost the whole thread!) I've certainly learned a lot!

Presumably one reason that solicitors (or their firms) are wary to help, is because they invariably also act on behalf of the big firm creditors in other cases, and can therefore be 'leant on' (now there's a pun!) to cease and desist such helpfulness to the small guy in all this. Thank you again

It was touched on a few pages ago, but can we confirm the viability - or otherwise - of the following: [I've edited this to concur with a possible answer found]
Sole Debtor (and defendant) D1, is in joint mortgage with D2.
D2 now wants to take on a new mortgage (different lender) with new partner X.
Can D1D2 - sell - the property to D2X, or as previously suggested, only be added back after X has bought the property alone?

If only the latter, how swiftly and smoothly can X's conveyancer get D2 back onto the deeds and mortgage alongside X?

[/I]MB

As Land Registry Rep has confirmed (and as the Judgement you highlight confirms) a Charging Order against Beneficial Interest will only be overreached if a sale is made by two or more owners to a third party. A transfer (for money or otherwise) wouldn't achieve overreaching and wouldn't remove the Restriction.

But the case does, also, highlight the "flimsy" nature of Charging Orders that can only be registered against the Beneficial Interest of a joint debtor rather than against the legal estate which occurs when the debtor is the sole owner of the property.

With regard to Solicitors acting for debt collection agencies; its usually a specialised field (Restons, HL etc), therefore, most conveyancing solicitors wouldn't be involved with debt collection agencies?

What they are involved with, however, is self interest first. So any pressure from an outside source usually sees them crumple worse than a cheap suit in preferance to acting on their, paid, clients wishes.

bonfire1966 · 1 December 2017 at 3:08AM

Things have gone from bad to worse.
Just when I see the end in sight my conveyening solicitor tells me that the creditors solicitor has applied to have the restriction removal reversed and because of if this it stops the sale of my house as the buyer will insist on this being removed!!
Please can anyone offer any advise. I was due to complete today and am back to square one!!

eggbox · 1 December 2017 at 9:02AM

bonfire1966

I think you need to explain how the creditors Solicitor has gone about applying to have the Restriction removal reversed? Especially, as simply making a legal application doesn't automatically guarantee that the application made will be succesful as your Conveyancing Solicitor seems to be assuming?

bonfire1966 · 1 December 2017 at 9:20AM

Hi Egg box. He has completed a b141 notice of application for alteration of the register.

eggbox · 1 December 2017 at 9:29AM

bonfire1966 wrote: »

Hi Egg box. He has completed a b141 notice of application for alteration of the register.

It seems a last throw of the dice to me but I will see if Land Registry Rep can shed some light on how this application can/cannot affect a sale proceeding where you are registered as the 100% legal owner?

bonfire1966 · 1 December 2017 at 9:31AM

Eggbox
Ok thank you appreciate you help

Land_Registry · 1 December 2017 at 1:09PM

eggbox wrote: »

It seems a last throw of the dice to me but I will see if Land Registry Rep can shed some light on how this application can/cannot affect a sale proceeding where you are registered as the 100% legal owner?

When an application is made by the owner to cancel an interest from the register we may serve notice onthe beneficiary (creditor) to see if they consent/object. That's what the B141 notice is

It's not 'reversing' anything but simply saying 'Hang on we don't agree with you removing our interest' and they then set out the grounds for that objection.

We have to consider those grounds and decide next steps, which could be we disagree and remove it; contact your solicitor to see what they have to now say; or agree and leave it on and tell your solicitor why.

Next steps, if they have objected, is for us to consider their objection. That will normally be done within a few days of receipt. So the devil is in the detail here so you may have to wait a little longer for it to be resolved either way

eggbox · 1 December 2017 at 1:31PM

Thanks for the update LRR

Will this action prevent a sale proceeding, however, given the restriction would be overreached anyway as it was, originally, only against the beneficial interest of a joint owner?

Also, could I ask what your opinion is if the poster in this case hadn't let the cat out of the bag, by contacting the creditor to inform the Restriction had been removed, and the sale would have proceeded as normal? Surely any objection to a Form K Restriction being, previously, removed would be futile?

Land_Registry · 1 December 2017 at 2:39PM

eggbox wrote: »

Thanks for the update LRR

Will this action prevent a sale proceeding, however, given the restriction would be overreached anyway as it was, originally, only against the beneficial interest of a joint owner?

Also, could I ask what your opinion is if the poster in this case hadn't let the cat out of the bag, by contacting the creditor to inform the Restriction had been removed, and the sale would have proceeded as normal? Surely any objection to a Form K Restriction being, previously, removed would be futile?

That's always up to the buyer.

We already understand the overreaching aspect but I don't really follow how we have arrived at the point if a B141 notice on the beneficiary/creditor. If the restriction had been removed as stated then I'd have thought the creditor was applying to put it backoin so IF we were serving notice it would be in the owner, not the creditor.

As I said the devil is in the detail and I feel some detail is missing here so impossible to apply what ifs and what next scenarios. It would be good to understand the detail from our end to then help make sense of it from OP's perspective.

bonfire1966 · 1 December 2017 at 3:38PM

Egg box and land registry. Sorry I don't feel that I am being clear as I don't understand these forms.
I have received from the land registry a B141. The applicant is the creditors solicitor wanting to reinstate the restriction that the land registry removed. The form asks me to either consent or object. I have contacted the land registry and they tell me that the solicitor has applied to get the restriction removal decision reversed and that he has written to them with his case.
In the mean time much to my shock the house has completed. My conveyancing solicitor has told me that I must still deal with this issue. I firstly plan to object to the reversal.
Any thoughts please.

Charging Order? The myth

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