Charging Order? The myth

Distracted

Sorry if that last post sounded a bit self indulgent, just having a bad day.

I've read up a fair bit on this thread and was fairly confident, but the more I speak to people outside of this forum the more doubt is creeping in.

I'm speaking to my solicitor who dealt with my sale again on Monday with the view of booking an appointment. He's quite straight forward and clued up so hopefully he'll be able to carry this forward as you suggested. When I initially ran it past him he said that the debtors could query whether my wife's interests were really split 99-1 and that they may contest such a split as being genuine.

eggbox

Distracted

I do understand, but if you do take the time to read through this thread you will understand two things; 1) you are one of many, many people who were shocked at the same thing happening to them, 2) Many of the fears and worries you will probably have will evaporate when you understand what the rules are regarding a CO made against only one of joint owners of a property.

A word of caution, though, hopefully your solicitor is as straight forward and clued up as you say. But many aren't (as this thread exposes) and many don't understand the difference a CO on solely owned property differs from one made where there are joint owners. Worse still, many refuse to listen or investigate the facts (which is why you will, most probably, get an "uninformed" negative reaction from people outside this thread)

A debtor could investigate whether a split was 99-1 but they wouldn't as it would be too costly and time consuming. If a CO is made against your partner, however, the 99-1 becomes irrelevant any way because (and as you will see from the information provided in this thread); there is no legal obligation to automatically pay off the CO when you sell your property as it is not attached to the legal estate of your property (as it would be if you were a sole owner.)

But don't go in telling your solicitor what you have learned here, let him tell you what he knows first and come back here if his view differs and we will arm you with the information to give him (as Brightonian did with his Solicitor and who has successfully sold up and paid nothing)

sithemadmonkey

Hi Eggbox/LRR/anyone else who is reading,

I have a query regarding the back-and-forth the two of you had way back on page 44 regarding beneficial joint tenancy being severed when a CO restriction is put on a property:

If a Form A restriction was not put on the register at the time of the Form K restriction, the ownership would be under a tenancy in common, but the register would not reflect that. If the owners then wanted to revert back to joint beneficial tenancy, how would they go about doing that, given that the normal way is to have the Form A restriction taken off...

To word it slightly differently (and more in context of my particular situation), are you able to tell just from the title what the ownership is if a Form K (but not a Form A) restriction is on there if you're not the owner?

A death in the family has left me trying to work out the ownership of the house in question without talking to the deceased's partner (well, not yet. Long story that I shan't bore you with).

Thanks in advance for your help :T

[EDIT] I am also getting some legal advice regarding this, but having read this thread from start to finish I think I'd prefer to get a second opinion on here too...

eggbox

sitthemadmonkey

If a Form K is registered then that will signify a Tenants in Common arrangement as this is what has severed the "Joint" arrangement. The owners, also, would only be able to revert to a Joint ownership if the Form K Restriction is removed.

If it has (and there was no Form A registered) you just need to confirm it legally with the Land Register (who will advise what form are required)

sithemadmonkey

Hi Eggbox, thanks for your reply - that does make sense.

Without swerving too dangerously off-topic into probate law, I'm guessing that, since the Form K was on the title at the time of my family member's death, that the ownership was in the form of tenants in common, and that half the house should pass to the deceased's estate, rather than to the other owner?

The only thing that may complicate matters is that the debt behind the CO was actually paid off several years ago, but the Form K was never taken off the title - I'm assuming that had it been taken off then it could have reverted back to JBT, but the fact that it's still on there would suggest that it's still Tenancy in Common...

eggbox

If the debt was paid off then it would totally uncomplicate things as all you need to do is apply to have it removed using one of of the Land Registry RX forms. The creditor who had the CO won't object as they were paid off.

The ownership can then be reverted back to a Joint Tenancy arrangement as long as both owners agree to that.

sithemadmonkey

That's the thing, it's actually in our interest if the ownership is Tenancy in Common!

I realise I haven't explained myself properly - the house isn't mine, but belonging jointly to my deceased family member and their partner. The family member died intestate, and was not married to the partner. Under JBT the house (which was bought outright with my deceased family member's money) would automatically go to the partner (who we're not on particularly good terms with, hence why I don't want to speak to them yet). If the CO reverted it back to Tenancy in Common, which I'm assuming is the case, then half the house would go to my family member's estate rather than the partner. I'm aware this makes me sound like a money-grabbing so-and-so, but the full story (which would put everything into context) would be far too long and irrelevant to put here. Suffice to say, I'm not a direct beneficiary, but I'm acting in my family's best interests.

I'll keep everyone updated once I hear back from solicitors in the week.

eggbox

sitthemadmonkey

Despite the CO being paid off, the Form K will ensure the property is held as Tenant in Common. But it would be very useful to know what the outcome is as, unfortunately, I believe there is widespread ignorance regarding what effect a CO has on the ownership of property (and I'm happy to hold my hands up and say I had no clue of the effect until way after a CO was issued against my ex partner) and what could be the outcome if circumstances, such as you explain, occur.

I think a lot of people are taking it for granted that, should their partner unfortunately ever die, that they would automatically own the whole property. As your circumstances are probably going to highlight, that isn't always going to be the case.

sithemadmonkey

That makes sense - I've attached the Land Registry guidance on the issue with the documents I've given the solicitor, so hopefully they'll be up to speed on the issue (if not I'll find another one who is )

I totally agree with you regarding the widespread ignorance surrounding the issue, the death was actually nearly a year ago, and the legal advice I got at the time didn't bring the issue up (we'd pretty much given up the house as lost). It was only a passing reference on another thread on this forum (and for that MSE and its users will always have my thanks :T) that alerted me to it, and your conversation with LRR that clarified it.

Don't worry, I will keep all updated as and when I get news. I've seen on this thread and others how frustrating it is when someone doesn't post updates, which could potentially help others in their situation.

Land_Registry

sitethemadmonkey - your questions seem to have been covered by eggbox and you have linked to the guidance we supply around joint ownership

As you already appreciate from the guidance We cannot advise you on which kind of ownership you have chosen. The presence or absence of a Form A restriction on the register for your property does not necessarily signify which kind it is

That is not always seen as being very helpful but as mentioned in this thread the land register is not the sole record of beneficial interests and the register is only part of the wider picture in such cases.