Charging Order? The myth

eggbox

[FONT=&quot]Hi LRR

Could I ask you to explain the below paragraph from the Land Registry Guidance siththemadmonkey posted a link to please.
[/FONT][FONT=&quot]
"The effect of this restriction [/FONT][FONT=&quot](Form A)[/FONT][FONT=&quot] is that if you are the last survivor of all the owners you must appoint another person to act with you in any deed of sale or mortgage and to jointly receive any sale price or mortgage advance"

[/FONT][FONT=&quot]I just need to understand the reasoning has to be done, thanks?[/FONT][FONT=&quot]
[/FONT]

Land_Registry

eggbox - not sure I can add too much to this other than it is the basic premis behind the issues often faced around who get's what and when re the legal title, especially on sale.

Have a read of our Practice Guide 24 section 2.2 specifically. Whilst it is fairly brief it points to the legal reference that you would need to consider under the Law of Property Act and once again the issue of overreaching, which is also a key consideration with COs in mind as well

sithemadmonkey

Hi LRR,

Your mention of Practice Guide 24 intrigues me, as it makes no mention of Charging Orders severing a Joint Beneficial Tenancy, only Bankruptcy. I can't find any mention of them in the Law of Property Act either. Is there another piece of legislation that covers the issue of Charging Orders specifically, or is it a Common Law thing?

Thanks in advance.

Land_Registry

I was responding to eggbox's last post rather than the wider issues around this thread - apologies if it seemed I was responding to anything earlier.

eggbox wanted an explanation of the reasoning behind a specific paragraph and if you read the referred to sections of the LPA they refer to such (equitable) interests as being overreached where two or more individuals are involved - hence the need to appoint another person in the situation referred to in that post.

I am sure eggbox will be able to point you at any legislation (if any) regarding COs specifically. From a land registration perspective COs are simply one form of interest that can be protected on the register.

sithemadmonkey

Hi LRR,

Thanks for your help, I understand that you were answering eggbox but was intrigued that there was no mention of COs there, not to worry.

An update for everyone (specifically eggbox), I've just heard back from the solicitor, and they've confirmed what this thread has been telling me all along - the CO severed the JBT, and changed the ownership to Tenancy in Common.

One more question for you LRR, what can I do next to make the Tenancy in Common crystal clear? I can tell the Land Registry that one of the joint owners has died using Form DJP, but that only seems to remove the name of the proprietor from the register (which is the exact opposite of what I want to do :eek:). There's a Form Q restriction, but I'm not sure if that's appropriate in this case, or if I'm even able to get it put on retrospectively?

Many thanks in advance.

Land_Registry

sithemadmonkey - you really need to seek legal advice to understand how the various competing interests have impacted on the legal circumstances of those involved.

Whilst a CO/form K restriction can have the impact as mentioned you also refer to the CO having been paid off some years previously. Although the form K restriction protects an interest and implies one thing re the joint tenancy perhaps a legal adviser can assist with explaining what happens when in reality that interest (the CO) no longer exists? - I cannot help you with that explanation.

You also need to understand the implications re legal ownership as a result of the death of one owner. In such cases the register is often not updated as the ownership/estate is simply dealt with in accordance with the laws surrounding wills, probate and intestacy.

You cannot register something retrospectively but you may be able to have the legal argument/discussion elsewhere to justify any action you may take - again something for a legal adviser to advise upon.

A form Q restriction is normally referred to as a partnership restriction and one which the owners might have applied for when they were both alive. I doubt if it is relevant in the circumstances you refer to.

I am afraid that crystal clarity is not always achievable in such matters as the land register is just one piece of information to be considered - hence why we are unable to tell you what type of ownership the title is held under; and

You refer to 'the exact opposite of what you want to do' when the actual reality is that the joint owner has sadly passed away so the next step is to seek legal advice (which you are doing) to understand how this has impacted on the situation.

sithemadmonkey

Hi LRR,

Thanks once again for your advice, I guessed that it would be something along the lines of 'get further Legal advice'. I'm in way over my head when it comes to my meagre knowledge of such things...

That is exactly what I shall do, and I will be sure to keep this thread updated with any developments and (hopefully) the final outcome.

Distracted

Hi,

There's been a bit of an update on my case and I was after some advice if anyone can help.

It turns out that my wife's former partner already has a charging order for the full amount of the debt which was agreed a few years earlier.

I understand they are able to pursue the debt how they seem fit but if a charging order already exists for the full amount owed are they able to attempt to pursue my wife aswell?

MIKE770

Distracted wrote: »

Hi,

There's been a bit of an update on my case and I was after some advice if anyone can help.

It turns out that my wife's former partner already has a charging order for the full amount of the debt which was agreed a few years earlier.

I understand they are able to pursue the debt how they seem fit but if a charging order already exists for the full amount owed are they able to attempt to pursue my wife aswell?

Full charging Order would suggest she was co-owner of the property? else only a Restriction would be in place on his half of any proceeds?

Distracted

Hi Mike

She had the property with her ex, who turned really bad, taking the money she was putting in the joint account to cover the mortgage etc. they split up and got lumbered with the shortfall after the bank repossessed an sold the property.

She started paying money back but her former partners father got a charging order put in place on his sons flat (that he lives in).

Me and my now wife have recently (last 3 years) bought a property and have been pursued for the debt again. The courts are in the process of putting a CO on my property (I understand this will be a restriction, as the debt is soley hers)

My query is if there was already a CO for the full amount against her exs flat then can they also put a CO against our property? I would have thought they could only register an interest to the sum of the debt they are owed, not register it twice, effectively registering an interest for twice the amount of the debt.