Charging Order? The myth
Comments
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Hopefully, Land Registry Rep should be able to point you in the right direction on Monday.
I seem to remember, however, this situation being covered previously on the thread and (if I remember right) if your Solicitor writes to the creditor they will usually agree to remove the Restriction due to the circumstances.0 -
Hopefully, Land Registry Rep should be able to point you in the right direction on Monday.
I seem to remember, however, this situation being covered previously on the thread and (if I rember right) if your Solicitor writes to the creditor they will usually agree to remove the Restriction due to the circumstances.
Thank you. I did try reading through but it's 120 pages long. I shall get on the computer later and perform a search to try and find it.
Land Registry was not very helpful when I called a couple of times regarding it. They just said to contact the creditors.
I'm not convinced my solicitor is aware of what is covered in the OP so just want to just pass the info on to try and help my case.0 -
I know it can be frustrating, but the Land Registry cannot be seen to be giving Legal advice. So it's, unfortunately, a matter of having to ask the LR questions in a way they are able to answer matter of factually without giving advice.
But like any organisation, some employees can be more "helpful" than others. LR, however, usually manages to explain your options without giving "advice" on what you should do (let's hope so, anyway)0 -
I have been skimming the thread. Is it correct that once the restriction has been attached then that means that the Joint Tennants is replaced by tennants in comments? Or does it depend on certain things? The Land Registry said nothing had been put in place or applied to change it from Joint Tennants..0
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Have a look at the posts around #8600
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Land_Registry_representative wrote: »eggbox - I shall do my best to deal with your post although much of what I am able to comment on will be contained within our online guides.
The situations surrounding charging orders and their impact on the land register and 'tenancy' are explained in our Practice Guide 19 (sections 8.1 and 8.2) and Public Guide 23A
As you will note from PG19 a form A restriction may also be applied for. If form K and form A restrictions are both applied for then a notice should be served by Land Registry on the registered proprietors. On that basis I am unsure as to why they would be unaware.
As you already appreciate the most common approach to protecting a charging order in such circumstances is to simply register a form K restriction, the impact of which is to some extent explained in the Guides as mentioned. A person entitled to the benefit of a charging order relating to an interest under a trust, as in the case where there are joint proprietors but the order is against just one, is treated as having a right or claim in relation to the trust property so a restriction may be entered.
Whilst the form K may not act as an obstacle to any sale nor necessarily would a form A restriction as the surviving joint proprietor may simply appoint a second person to act jointly with them for the receipt of the capital monies.
As far as the form K restriction is concerned and compliance therewith we have already covered this in previous posts. Provided the necessary evidence is lodged to show that the terms of the restriction have been complied with then the Transfer can proceed.
This may of course give rise to further questions but I think it is important to emphasise the point you have made previously with regards the impact of a form K restriction and which is also made in P9 of Public Guide 23A as referred to.
Finally and to be absolutely clear on this point for other readers it is important to recognise that Land Registry record such information, where applicable, on the land register but it is not our role to then police/enforce such interests unless instructed to by the courts or required to do so within the terms of the Land Registration Act 2002. You already appreciate that we cannot provide legal advice and it is important that anyone affected by a charging order and who does not understand the legal and wider impact to seek independant legal advice - the land registration aspect is just one part of the process
Thank you Eggbox. Do you mean from here? I continue to read but am getting myself pretty confused. Would I need to contact LG to find out about the Form K? They said that no severance of Joint Tennants had been registered. I guess it will probably boil down to the knowledge of my solicitor and the stance of the Creditors.0 -
They said that no severance of Joint Tennants had been registered. I guess it will probably boil down to the knowledge of my solicitor and the stance of the Creditors.
It is confusing when the LR state this as every Solicitor I talk to on the matter states that a "Joint Tenancy" is automatically severed the moment one of the owners receives a CO against his share of the property.
The reason given for this is because it's not possible to place a Charge on only part of a "Joint Tenancy". But I would wait for LRR to comment to see what your next move is.0 -
This means that you really were joint tenants at the time. No change to tenants in common because joint tenancies pass automatically to the joint tenant without need for a will but tenants in common splits don't. If it was tenants in common, without a will you would be very unlikely to inherit any part of the house from his estate because close or remote family would get it instead.My ex died last year and we were Joint Tennants for a property that he lived in but I did not. The mortgage and the Land Registry documents have now been put sole in my name.
[STRIKE]The restriction will automatically be lifted by a sale to a third party with no action required but[/STRIKE] it will reassure a buyer to have the creditor remove the restriction. Your solicitor seems to be acting correctly to help the sale of your property proceed smoothly.I have started selling the house however it has come to light that there is a restriction on the Land Registry documents for Capquest Ltd for over £2.5k in exes name. My solicitor has said that she will attempt to have it removed due to the death
A restriction was placed instead of a charging order because the property was jointly owned.0 -
The restriction will automatically be lifted by a sale to a third party with no action required but it will reassure a buyer to have the creditor remove the restriction.
Unfortunately, the above is not correct. For the Restriction to be "overreached" and automatically removed the property has to be jointly owned.
As the property is now solely owned this won't now apply.0
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