Charging Order? The myth

fatbelly

The judge will (in all probability) make the charging order final. It is not his concern how it is recorded at the Land Registry.

There are some defences to making the order final

Factsheet | Charging orders in the county court

but they are not often successful - as the factsheet says

'In practice, it can be very difficult to persuade the court not to make the charging order final.'

It's still worth attending though.

eggbox

Distracted

Couple of questions, in what form was your ex partner's Father's guarantee for the money owed (ie was it verbal or was there some form of written guarantee/contract?) and how long was the "several years" that had passed before they made demands on the debt again?

Distracted

eggbox wrote: »

Distracted

Couple of questions, in what form was your ex partner's Father's guarantee for the money owed (ie was it verbal or was there some form of written guarantee/contract?) and how long was the "several years" that had passed before they made demands on the debt again?

The several years were three, as far as I'm aware it was a verbal agreement with the debtors. This is a new firm of solicitors who are chasing the debt.

If I took my wife's name off the mortgage would this not prevent them from taking out the order.

Sorry if its been explained elsewhere but a restriction would basically entail what?

1) Would we have to pay them back upon moving?

2) Would the restriction stay with the property and put off any potential purchasers?

3) how would it, if it ever could be, lifted for a sale?

Thank you

eggbox

Your ex-parter's offer would only really hold any weight (against a charge being put against your property) if he agreed to a voluntary charge on his own property to cover the debt. My guess is he won't do this, but have you asked him to do so?

Without that help, as fatbelly says, CO's are notoriously difficult to prevent. So that has to be your first move.

With regard to your questions, take the time to read through the important points in this thread as it highlights why a CO against a joint owner of a property (and where only a Restriction can be placed at the Land Registry) is not great security for the creditor.

Distracted

Thanks eggbox,

I've read through a fair bit of the thread this morning on the way in - and found most of my answers (I was daunted by the 50 pages!)

I think I'm pretty clear in my head as to how to proceed, and .

One last thing, I appreciate that they can chase my wife or her ex or both depending how they seem fit. He is also being charged at the court hearing, I would expect that they intend to split the charge, but if he fails to turn up can the court make a ruling against him in his absence?

I guess what I'm trying to ascertain is whether his lack of co-operation with the process could expose my wife to a higher risk of being pursued for the full amount.

eggbox

No, his absence will just make it easier for the Judge to grant the Charging Order.

One other thing you need to understand regarding your deposit arrangement; if a CO is granted against your partner you will cease to have a "Joint Tenants" ownership of the property (whereby you both own the whole property). Instead you will become "Tenants in Common" whereby you will both have a percentage ownership of the property each.

The law assumes this split is 50:50 unless you alter the terms of the Tenancy agreement to a different percentage ownership. Providing you are both in agreement there is nothing to prevent you altering this arrangement to a 99:1 ratio in your favour to limit the amount a creditor could gain access to when the house is sold.

harisumo

eggbox wrote: »

No, his absence will just make it easier for the Judge to grant the Charging Order.

One other thing you need to understand regarding your deposit arrangement; if a CO is granted against your partner you will cease to have a "Joint Tenants" ownership of the property (whereby you both own the whole property). Instead you will become "Tenants in Common" whereby you will both have a percentage ownership of the property each.

The law assumes this split is 50:50 unless you alter the terms of the Tenancy agreement to a different percentage ownership. Providing you are both in agreement there is nothing to prevent you altering this arrangement to a 99:1 ratio in your favour to limit the amount a creditor could gain access to when the house is sold.

Hi Eggbox, how would one go about doing this? Thanks

eggbox

harisumo wrote: »

Hi Eggbox, how would one go about doing this? Thanks

From the This is Money Website,

You'll have to contact your solicitor but it's quite a simple procedure. You can switch simply by writing to each other saying the property will be owned as tenants in common (where you specify the percentage split) and then to the Land Registry.
Alternatively, you can fill in form RX1, available from the Land Registry, but it's best to have legal help to do this. You will also have to specify in your will that you intend to leave your share to your specified beneficiary.
It can cost as little as £30 for legal documents to be drawn up but if you want more in-depth legal advice it can cost more.

Distracted

Hi , I've looked at this a little more, the debtor has applied for an interim Charging Order Restriction which comes into force on the 14th (unless I wish to contest it) untill the court case on the 30th.

I am attempting to take my wife's name off the mortgage by doing a transfer of equity, does anyone know if I can do this while the interim order is in place or would I have to get this done before hand, or should I contest the interim application and say that I'm contesting it in court?

I've already got a legal document protecting my deposit as my wife had no money to put in. My solicitor recommended this, as we've only had the property 3 years I've not paid much off the value of the house (about 3k)

I'm very confused at this, just when I think it's clear in my head I get confused about it again!

eggbox

It's not the mortgage that you need your wife's name to be removed from, its the Land Registry details for your property. Whilst she is still registered there she is still legally a joint owner of the property.

Land Registry Rep would be good to ask on this subject but if he doesn't pick this up I would give the Land Registry a call.

But a word of advice, the Land Registry are extremely sensitive to not being seen as giving advice. So you may have to actually apply to the Land Registry to have your wife's name removed before they tell you it can/can't be done.