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  • FIRST POST
    blueback
    Charging Order? The myth
    • #1
    • 26th Jul 09, 11:28 AM
    Charging Order? The myth 26th Jul 09 at 11:28 AM
    I feel that this is so important that I thought a new thread should be made to highlight the importance of understanding the law on Charging Orders and how many people are stuck with their property in the false believe that they have had a Charging Order put on their property.

    In particular the thousands of Northern Rock customers that have had unsecured debt turned into secured debt by their tactics.

    If your property is jointly owned a creditor will not be able to obtain a CO against you, they can only get what is called a restriction.

    The laws on Restrictions are totally different to Orders, the most important being there is NO OBLIGATION for you to pay any of the proceeds of the sale to the creditor.

    However, during the whole court process you go through the reference from all parties (especially the creditor) will be to charging order and NOT to restriction. This is done in order to decieve you believing you are stuck with a CO.

    However, not all solicitors are aware of the law in this regard and it is important that you raise this point with them in the first instance before proceeding with them

    Quote:

    Restriction


    The restriction which can be entered on the register where a charging order is made against one of joint proprietors is in the following form :-
    No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to [name of person with the benefit of the charging order] at [address for service], being the person with the benefit of [an interim] [a final] charging order on the beneficial interest of (name of judgment debtor) made by the (name of court) on (date) (Court reference.…).
    You are therefore correct in saying that when the Land Registry receives an application to register, for example a transfer, we will not ask to see the consent of the person who has the benefit of the charging order. We will only want a certificate from the applicant for registration or his conveyancer that the person who has the benefit of the charging order has been given written notice of the transfer.

    If both joint owners sell the land to a third party the restriction will be cancelled when the transfer to the purchasers is registered.


    So I hope I have provided benefit to everyone who has had a restriction entered against them (especially NORTHERN ROCK CUSTOMERS) who believe wrongly that they are Charging Orders.

    You now have the freedom to go and sell your houses with the knowledge that the vultures can do nothing

    I also think this VERY IMPORTANT point needs highlighting by the moderators as many many people are stuck with houses that they believe they cannot sell
Page 162
    • jez123cars
    • By jez123cars 3rd Apr 17, 8:05 PM
    • 67 Posts
    • 50 Thanks
    jez123cars
    Thank you Eggbox you are a star. I believe a light bulb moment has occurred and I now understand it.
    • eggbox
    • By eggbox 4th Apr 17, 8:21 AM
    • 1,174 Posts
    • 597 Thanks
    eggbox
    Thank you Eggbox you are a star. I believe a light bulb moment has occurred and I now understand it.
    Originally posted by jez123cars
    No problem and I do understand as my head nearly exploded when I first started to read up about this subject? If you add in how difficult it is to understand that the Law can be "malleable" and is, often, shaped into position by those who know how best to use it; then it can be very difficult to get your head around such matters?

    But the "malleable" can be worked both ways and, as I write, I have been notified that another Solicitor is on the horizon that appears to agree regarding not having to settle the CO upon sale (and which I will update the board on when I have had a response from them?)

    Which means just because one legal opinion goes against your argument, it doesn't mean that opinion is definitely correct until ruled on by a Court?
    • DAKOTA45
    • By DAKOTA45 5th Apr 17, 6:57 AM
    • 435 Posts
    • 34 Thanks
    DAKOTA45
    Eggbox….I have been searching for a word which sums up the Law… and 'malleable' fits perfectly! Just when you think you have finally understood something, the rug gets ripped from underneath you because there is always a rule which contradicts the rule you were relying upon… or else they simply change the rules, but unless you are up to date with such matters, you don't realise there has been a change… it's an absolute minefield!
    Many thanks to those kind people such as yourself who give advice, free of charge, & help so many of us to sleep at night.

    D45
    • eggbox
    • By eggbox 5th Apr 17, 8:52 AM
    • 1,174 Posts
    • 597 Thanks
    eggbox
    Dakota

    No problem and, yes, I do think "malleable" is an apt word for the Law and it certainly can be a minefield. Especially when you consider that the legal representation available to people is not of an equal ability?

    Are you back in Court tomorrow and has the other side been in contact at all?
    • DAKOTA45
    • By DAKOTA45 6th Apr 17, 8:15 AM
    • 435 Posts
    • 34 Thanks
    DAKOTA45
    It's just crazy that they can allow a trial where one person is armed to the teeth with expensive solicitors/barristers and the other side, with no representation at all just has to muddle along with no knowledge whatsoever of the CPR. It should be a national scandal that 'justice' is meted out where there is an inequality of arms… no level playing field and with one side so obviously at a huge disadvantage. It is so wrong that the person who can afford legal representation gets to win in 99% of all cases and where the other side would have been successful, but for the lack of a lawyer. It makes me so very angry!

    So… where I'm at atm is that I have asked his lawyers if he is willing to enter into some kind of mediation. This is not the 1st time I've asked. the previous time was whilst we were waiting to see the outcome of his SJ application. well, that's been and gone, (and as you know, it didn't go their way), but I'm still waiting…
    It's all about money… they will drag this out for as long as he is willing to pay them. I don't think he cares about spending the money… this is all about making me suffer for as long as possible… it's a vendetta pure & simple… why else would he have done what he did when he had enforcement for the debt and with my sale pending? He could have been paid 3 years ago…. and he messed it all up.

    So… watch this space, I guess…

    D45
    • jez123cars
    • By jez123cars 18th Apr 17, 12:09 PM
    • 67 Posts
    • 50 Thanks
    jez123cars
    Hi all especially Eggbox who has been brilliant so far, but more advice needed.

    We have now sold our house and had an offer accepted on another. got the mortgage broker sorted and had done everything we needed we have passed the affordability passed the credit check etc etc everything going swimmingly until the lender says NO found out its because we are trying to borrow more than we are currently but said if we could put bigger deposit we would have more chance as the LTV is too high in our situation (1 month in arrears which will be cleared by 28th of this month)

    As discussed earlier in this post we have a couple of restrictions against the property, and as we have found out from forum we shouldn't necessarily have to pay, the buyers solicitor only has to inform them of our intent to sell. How can I find out if he has had a response from the OR or the 2nd restriction? Would the solicitor contact me or what?
    What we would like to know is: Can we put as much profit from our current house down as deposit on the new place? If we do and then the OR etc comes for their money what happens then? Do they take it and we are then short (and loose property and sale annoying quite a few people as they have paid out for solicitors etc or do they apply for restrictions on the new property?

    Thanks in advance
    • eggbox
    • By eggbox 18th Apr 17, 12:46 PM
    • 1,174 Posts
    • 597 Thanks
    eggbox
    How can I find out if he has had a response from the OR or the 2nd restriction? Would the solicitor contact me or what?
    Originally posted by jez123cars
    The buyers Solicitor isn't after, or requires, a response from either party. The only requirement is notification, to the Restrictioners, that a sale is proceeding and then evidence of that notification being forwarded to the Land Registry. The easy way to find out if this has been done is to ask the Solicitor involved?

    Can we put as much profit from our current house down as deposit on the new place?e
    Originally posted by jez123cars
    If your intention is not to pay the debt at the time of the sale then the answer has to be yes.

    If we do and then the OR etc comes for their money what happens then? Do they take it and we are then short (and loose property and sale annoying quite a few people as they have paid out for solicitors etc or do they apply for restrictions on the new property?
    Originally posted by jez123cars
    There is, unfortunately, no way to answer this as there is no way of knowing what the OR will do when they are notified of the sale?

    What I do have explain, though, is that if you are buying a new property then its a possibility that any creditors not paid may attach the debt to the new property if your name is on the deeds?
    • eggbox
    • By eggbox 18th Apr 17, 6:33 PM
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    • 597 Thanks
    eggbox
    Land Registry Rep

    Could I, please, ask what the likelihood is of the Land Registry refusing to allow a transfer when a Form K Restriction has been, correctly, complied with due to the Land Registry, purely, feeling that simple notice was not good enough to overcome a Form K Restriction?

    Its an apocryphal being used by certain solicitors as there excuse for them being unwilling to act for clients with a Form K Restriction? Just needed the LR's opinion?
  • Land Registry representative
    Land Registry Rep

    Could I, please, ask what the likelihood is of the Land Registry refusing to allow a transfer when a Form K Restriction has been, correctly, complied with due to the Land Registry, purely, feeling that simple notice was not good enough to overcome a Form K Restriction?

    Its an apocryphal being used by certain solicitors as there excuse for them being unwilling to act for clients with a Form K Restriction? Just needed the LR's opinion?
    Originally posted by eggbox
    eggbox - a little surprised by the Q to be honest as we have covered this many times before but do appreciate that sometimes things need to be asked again/refreshed.

    'Feelings' don't come into it in my experience as although we are humans it's really a matter of practice/policy and whilst a degree of consideration is required it is normally very black and white for us as the land register/property is just one part of the wider picture for both the debtor, creditor and court.

    The basic mantra when dealing with a Restriction is that it has to be complied with. In the case of a form K restriction that means notifying the creditor (named in the restriction itself) of the sale.

    If evidence to that effect is produced and the sale is by both owners for monies then the form K is liable to be overreached and removed automatically when the purchaser registers their Transfer. Section 4 of our PG 76 on Charging Orders explains this

    I'm unclear as to how 'feelings' would come into it but presumably there is a reason for the Q? Have we perhaps rejected the referred to practice in a specific example?
    Last edited by Land Registry representative; 19-04-2017 at 8:08 AM.
    Official Company Representative
    I am the official company representative of Land Registry. MSE has given permission for me to post in response to queries about the company, so that I can help solve issues. You can see my name on the companies with permission to post list. I am not allowed to tout for business at all. If you believe I am please report it to forumteam@moneysavingexpert.com This does NOT imply any form of approval of my company or its products by MSE"
    • eggbox
    • By eggbox 19th Apr 17, 8:55 AM
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    • 597 Thanks
    eggbox
    Land Registry Rep

    Sorry to have to bother you with this, but your response was required due to a member of this board being told by a prospective Solicitor that he couldn't act for them as he had "heard" of this happening to another Solicitor.

    Your response, therefore, was required to show other board members (and visiting legal professionals) that this story is baloney and the chances of it happening are zero.

    But thank you for your time in responding.
  • Land Registry representative
    Land Registry Rep

    Sorry to have to bother you with this, but your response was required due to a member of this board being told by a prospective Solicitor that he couldn't act for them as he had "heard" of this happening to another Solicitor.

    Your response, therefore, was required to show other board members (and visiting legal professionals) that this story is baloney and the chances of it happening are zero.

    But thank you for your time in responding.
    Originally posted by eggbox
    eggbox Thanks for clarifying and understood.

    Hearsay, word of mouth and general discussion are just three ways that can impact on such matters.

    The key, and we refer to this all the time in land registration matters, is that every situation must be treated on merit and the devil is always in the detail. If someone 'hears' of something happening in one scenario it does not follow that it happens in every scenario.

    The guidance we provide, and PG 76 is aimed at conveyancers, acting for the creditor, is quite clear. Hence we rely on wording such as 'liable to be overreached' as 'feelings' should not come into it.
    Official Company Representative
    I am the official company representative of Land Registry. MSE has given permission for me to post in response to queries about the company, so that I can help solve issues. You can see my name on the companies with permission to post list. I am not allowed to tout for business at all. If you believe I am please report it to forumteam@moneysavingexpert.com This does NOT imply any form of approval of my company or its products by MSE"
    • eggbox
    • By eggbox 19th Apr 17, 9:39 AM
    • 1,174 Posts
    • 597 Thanks
    eggbox
    Land Registry Rep

    Thank you again. I'm just a little annoyed that paid "professionals" don't have the common sense to request the same information from the Land Registry in order to help their clients?

    I've afforded the Solicitor concerned the opportunity to provide details of which LR district made this decision but, as with the previous Solicitor we approached (who had actually had helped a board member sell up but then withdrew on accepting further clients due to "case law"); the further details requested to back up their decision never arrives?

    The Law is a difficult enough subject as it is, but when you have (in my opinion) irresponsible hearsay being thrown into the mix it makes it near impossible for the average person to deal with? (but then that's probably the intention?)
  • Land Registry representative
    eggbox largely rhetotical ?s of course but even so difficult to pass comment as we are very much at the end of the line re such matters as we only see the actual applications to register rather than the thought processes followed prior to that submission.

    Case law and one's own experience are often crucial in such matters but I am a little surprised that more research is perhaps not done by such solicitors/conveyancers as the information is out there on the www and our own guidance covers as well.
    Official Company Representative
    I am the official company representative of Land Registry. MSE has given permission for me to post in response to queries about the company, so that I can help solve issues. You can see my name on the companies with permission to post list. I am not allowed to tout for business at all. If you believe I am please report it to forumteam@moneysavingexpert.com This does NOT imply any form of approval of my company or its products by MSE"
    • eggbox
    • By eggbox 19th Apr 17, 10:41 AM
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    • 597 Thanks
    eggbox
    I am a little surprised that more research is perhaps not done by such solicitors/conveyancers as the information is out there on the www and our own guidance covers as well.
    Originally posted by Land Registry representative
    Maybe because it would need "solicitors", "effort" and "helpful" to be in the same post code and, as this board knows only too well, that's not an easy thing to achieve?
    • DAKOTA45
    • By DAKOTA45 21st Apr 17, 11:05 AM
    • 435 Posts
    • 34 Thanks
    DAKOTA45
    Hi all…. still in litigation….

    As you know, I had a restriction placed on my property when a trial in the Land Tribunal collapsed when I withdrew, (due to being a deaf LIP and the judge refusing to adjourn when the court failed to provide a hearing loop), and I lost my case for Adverse Possession by default.

    I have been going over the old paperwork this morning and have a question for LRR, please….

    At the time of the trial, (July 2013), I had been in occupancy of the land for 12 and a half years.

    Is it the case that time was still running and by that point, there was no case to answer due to a 12 year occupancy? Or does time stop running once you have made an application?

    I know I'm probably grabbing at straws here, but every little helps!

    Thanking you in anticipation…

    D45
    • eggbox
    • By eggbox 21st Apr 17, 11:22 AM
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    • 597 Thanks
    eggbox
    Dakota

    This may help a little until LRR calls in?

    LR Act 2002

    It came into force October 13th 2003 in case that affects your date?
  • Land Registry representative
    DAKOTA45 - I suspect PG 5 may be more relevant to you if your claim clock started before October 2003.

    And with regards mention of the Land Tribunal section 6 applies in that the owner objected to your application to register the claim.

    If so then I don't think the time aspect really matters here as presumably you had passed the 12 year requirement otherwise your application would not have got past first base, namely our consideration.

    If you mean that they objected on the basis of a dispute over whether the 12 years had eleapsed then it may be something to consider but it really is legal advice you would need to understand the law around adverse possession
    Official Company Representative
    I am the official company representative of Land Registry. MSE has given permission for me to post in response to queries about the company, so that I can help solve issues. You can see my name on the companies with permission to post list. I am not allowed to tout for business at all. If you believe I am please report it to forumteam@moneysavingexpert.com This does NOT imply any form of approval of my company or its products by MSE"
    • DAKOTA45
    • By DAKOTA45 22nd Apr 17, 8:25 AM
    • 435 Posts
    • 34 Thanks
    DAKOTA45
    Eggbox & LRR…

    It's complicated… because nothing is ever simple, is it?!

    In 2000, when we were liaising with the vendor of our property, our solicitor wrote quite close to exchange of contracts, advising us to pull out as the vendor had not indicated on the plan, either the correct boundary of the property, or more importantly, to us, the location of the septic tank.

    The vendor, whom we had got to know and seemed very genuine, told us that although he knew the tank was close to the house, he wasn't sure of the exact position… he assured us though, that it would all be sorted and that he would ensure the tank would be included in the land.

    Our property was a staff cottage on a larger estate which the vendor owned (he would be our next door neighbour)… we had no reason to believe he would not keep to his promises, so we ignored our solicitor and moved in, in February 2001.

    Shortly after moving in, our builders found the tank, which was just outside of the agreed land boundary… we told our neighbour and he said he would transfer the extra land to us following his imminent trip abroad.

    He went off and shortly after, we heard that he had fallen from a balcony whilst overseas, and was killed.

    After a decent period, I contacted his father, explaining the problem we had in that his son had promised to transfer a small piece of land to us, so as to include our septic tank. We would not have bought the property without having the tank on our own land, obviously.

    His father stated that he was unable to help, as his son's assets had been frozen… apparently, there was a huge tax bill and other stuff to sort out.

    Probate was lengthy and after 2 years, the remaining estate… all the land surrounding my property, was bought by a neighbour, (this is the man who has a CO against me).

    I was still in occupation of the land promised to me by the original owner, the new owner never sought to remove me and nor did he ever enter the land since he purchased it as it was fenced off and occupied by my animals.

    So, after 10 years I applied for Adverse Possession, the landowner objected and it took a couple of years to reach Trial.

    But… here's the thing; I had never heard of 'promissory estoppel'… had I known this, I would have made an application to the court much earlier.

    Whether or not Adverse possession is needed when there has been estoppel… that's the thing… and even at the Trial, the judge was saying the same and neither he nor the barrister for the other side was sure of the rules surrounding estoppel and AP.

    When I moved onto that land with the original owner's consent, I did so believing that the land was to be transferred to me. This was not a license to rent the land, it was land that should have been included when I purchased the property, being as the vendor had told me quite categorically that the septic tank would be included in the purchase of the land.

    'Complicated' is probably an understatement.

    There was never any decision at the trial as to whether or not I was entitled to AP. I withdrew, as I've said due to being unable to continue, where I was a deaf LIP without a hearing loop and unable to understand what was being said and had a bit of a panic attack under cross examination. Obviously, the Judge had no alternative other than to award costs to the other side, hence the Charge.

    D45
    Last edited by DAKOTA45; 22-04-2017 at 8:27 AM.
    • DAKOTA45
    • By DAKOTA45 22nd Apr 17, 8:43 AM
    • 435 Posts
    • 34 Thanks
    DAKOTA45
    Can I just say; Adverse Possession was a last resort… I had tried several times to purchase the land from the new owner, making offers well in excess of the value… he was an absolute dog in a manger… he didn't need the land, had never set foot on it… it was just a few yards of land with my septic tank on it.
    A couple of times he indicated that he was willing to accept offers… telling me I would have to bear the expense of survey and solicitor fees… I spent money, gave him deposits, none of which were returned to me when he inevitably pulled out each time.
    Now I owe him £30k! D45
    • DAKOTA45
    • By DAKOTA45 22nd Apr 17, 10:36 AM
    • 435 Posts
    • 34 Thanks
    DAKOTA45
    And it gets much, much worse… when I get my breath back I'll bring you the next instalment of this sorry saga! D45
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