Charging Order? The myth

Land_Registry · 13 January 2015 at 3:17PM

Thanks skintbex - the change of ownership is done using a form TR1 (Transfer) and as you state you would need to execute that Transfer for it to be capable of being registered.

The applicant, your ex's solicitor, will also have to satisfy us as to your identity.

Both are very much legal/registration requirements and whilst you may view them as not being essential they are for both the lender, any solicitor acting and ourselves I'm afraid.

No problem re the right form here and there can be circumstances where the restrictions will be overreached and cancelled automatically but I am sure eggbox will cover that if necessary although this thread refers to it extensively.

Your last post though suggests the wider issue is really the cost of using a solicitor to cover the identity issues but I suspect that is something you are unlikely to be able to avoid. If you used a solicitor in the 'settlement' process then they or a member of the same form may be able to cover off the other requirements for you and at minimal cost if they are already aware of the file etc?

skintbex · 13 January 2015 at 6:02PM

Cheers LRR it's not even the cost, as the solicitor will be paid from the sale, but the solicitor himself said I didn't need him, just someone to verify the id 1 (unless i go to my local Land Registry office) so I'm at a bit of a loss... I don't object to having a solicitor but it's not like one to do himself out of a job

Land_Registry · 14 January 2015 at 10:15AM

skintbex - something you will have to resolve with your ex and the solicitor involved by the sound of things I'm afraid.

Nuttymut · 14 January 2015 at 10:40PM

Just an update if I may.

We instructed our solicitors to tell the buyers solicitor that we were going down the route of overreaching to remove the restrictions.

Our sale has fallen through as the buyers solicitors advised them they should not proceed. I understand this caused an issue with the buyers lender.

May I enquire what options we have now please?

I would like to understand why the lenders would not lend to the buyers.

Thanks in advance for any help
Nuttymut :-)

eggbox · 16 January 2015 at 11:52AM

Nuttymut

Sorry to hear about your sale falling through but the experience will prepare you for the next attempt. The simple reason lenders won't lend is because they don't understand what overreaching is. It's as simple as that. The terms of a Form K Restriction are very easily complied with, to get removed, so it causes no problem to the sale process.

But, as with most Solicitors, they are too arrogant and rigid to be prepared to listen to the facts. The CO in these instances are on the proceeds of your sale. Therefore, it actually makes sense for the sale to proceed to release these funds to allow the Restriction holder a chance to recover there debt.

That you are under no legal obligation to settle the CO at the point of sale is of no consequence to the lender, as it isn't for the Land Registry who are legally able to register your details once the Restriction has been complied with.

The most obvious solution is to sell to a cash buyer who has no unbending lender behind them dictating terms. And remember, when the CO was granted you became "tenants in common" as opposed to "joint owners". This means you both now own half the house separately and are able to sell your share independently of the other person.

I'm not saying its easy but it is possible if you keep trying.

Nuttymut · 16 January 2015 at 7:26PM

Hi Eggbox,

Once I again I am indebted to you.

I know the buyers were borrowing a small amount of money as a mortgage to buy. Am I correct in thinking that if the amount they are borrowing is less than my ex partners share then there's no risk to their lender?

Thanks in advance for any reply

Nuttymut :-)

eggbox · 16 January 2015 at 7:53PM

There is no risk to the lender whatsoever as long as the Restrictions terms have been met. That the borrowing of your buyer would be less than your partners share just adds weight to the absurdity of their decision.

But unless the buyer is prepared to fight the lender on the facts it's doubtful they will reconsider their decision as they have a computer says no attitude on these matters.

wembley14 · 16 January 2015 at 11:07PM

Hi Eggbox et al

I've been reading the thread lately and unbelievably people are still being let down by so called conveyancers/solicitors regarding the restriction orders. But doesn't surprise me.

My situation is still not finalised as the new owner is still not registered on title deeds. This is due to the buyers conveyancer not providing the requisite certificate for modified/non standard restriction. Therefore, I feel they have failed their client. We have now not had the property for 8 months but our solicitor still holds funds from the proceeds to pay debt because I had to give an undertaking that the restrictions would be overreached on sale. At that time of the transaction My solicitor would not give a professional undertaking.

I have since requested copies of all documents provided by the buyers to the land registry for the application of the original registration to see if they have followed the correct procedure. Looks quite obvious that they haven't .

So this on going saga continues. Nearly 1 year from start of the transaction.

I feel for Nuttymut and any other sellers in their endeavours to find competent solicitors. It will certainly be easier to find rocky horses sh!te.

As for getting the right advice / info from local Land Registry regarding the restrictions this is just as bad. It all depends on who you have contact with.

My solicitor and I was told conflicting info on several occasions. All this info given to me I have kept, including info from Land Registry lawers and will use if necessary when notifying the legal ombudsman in due course.

Formal Complaints have already been given to creditors and I will be doing the same for buyers conveyancer if finding their actions have not been carried out correctly.

Good luck to you all.

Thrugelmir · 17 January 2015 at 1:04AM

Nuttymut wrote: »

I would like to understand why the lenders would not lend to the buyers.

There's no interest in taking any risk. From a lenders perspective there's no need to. Simple as that. A commercial decision. That'll be set at operating policy level.

eggbox · 17 January 2015 at 10:27AM

Thrugelmir wrote: »

There's no interest in taking any risk. From a lenders perspective there's no need to. Simple as that. A commercial decision. That'll be set at operating policy level.

I totally agree with what you say; however, the policy is extremely short sighted as it prevents business from proceeding when it has no need to? I would also wager, however, they are more concerned about the creditor than their own customer on these matters, too, being part of the same club? Especially, when lenders are still able to use advertising like this (look to the right of the clock)
http://www.barclays.co.uk/Loans/Whatareunsecuredloans/P1242557963570

Wembley - sorry to hear your situation still remains unresolved. But it would be interesting to know if the creditor has made any moves to recover its debt from the Solicitor holding the funds? The legal ombudsman's response should be interesting, too, and I do hope they are more helpful than the Solicitors Regulation Authority who simply refused to get involved when I contacted them regarding Solicitors obligations to their clients on this matter as they deemed it legal advice!

Charging Order? The myth

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