Charging Order? The myth

kookykathryn

I found it and I have quoted that to land registry! I feel like I'm fighting a loosing battle between my solicitor and land registry

eggbox

I know it's frustrating but be persistent as the "rules" in this particular situation are in your favour!


With regard to the Land Registry, it's getting to understand the "we can't be seen to be giving legal advice" angle which limits how they can respond (for instance, it took me three attempts to get a Solicitor at the Land Registry to confirm the automatic cancellation of a Restriction after a sale) But if you look at the information provided by LRR on this site it has referenced (without advice) EVERYTHING with which to see you through your sale and act within the law. It's just a matter of asking questions that can be answered (as daft as that sounds!)


With Solicitors it's a matter of understanding their limitations, both in knowledge and ability (and I'm the father of a newly qualified Solicitor who would back me up all the way on this given her experiences so far). As has been proven time and again on this site, many Solicitors are ignorant of the Land Registry rules and regulations that exist around Charging Orders. So don't assume what they tell you is correct unless they can back it up with facts!


Hopefully LRR will clarify the certificate issue tomorrow. But remember all your Solicitor has to get from BCT is a signed letter saying he has notified them. Whether they agree to the removal of the Restriction doesn't matter as they have no power to object under the Restrictions terms.

eggbox

kookykathryn


The below is from the LR Practice Guide 19 and is probably what the LR were referring to in this instance. Remember you are only needing verification from BCT to confirm they have been given notification of the sale. Whatever they say about not agreeing to the Restrictions removal is irrelevant in meeting the Restrictions terms.

Practice Guide 19
4.1.5 Complying with a restriction


Where the terms of a restriction require a certificate or written consent signed by a corporation aggregate, unless a contrary intention appears in the restriction or the certificate or consent is given in a deed executed by the corporation in question, the certificate or consent must be signed by either: its clerk, secretary or other permanent officer a member of its board of directors, council or other governing body its conveyancer, or its duly authorised employee or agent (r.91B, LRR 2003). The certificate or consent must state the full name of the signatory and the capacity in which the signatory signs (r.91B(5), LRR 2003). If a restriction requires a certificate or consent to be signed on behalf of a corporation by its secretary but that corporation has no secretary, the certificate or consent should be signed by one of the other persons listed above (r.91B(4), LRR 2003). - See more at: http://www.landregistry.gov.uk/professional/guides/practice-guide-19#sthash.64mVkD3J.dpuf

Land_Registry

eggbox - your last post covers it.
The 2nd restriction is probably not a form K restriction but one applied for separately etc. The key with all restrictions is that the wording should be clear as to what is required to show compliance etc - this one is quite clear and hence the specific requriements for compliance/removal

eggbox

Hi Land Registry Rep and thanks for clarifying but a couple of questions,

The Restriction kookykathryn has read,

"No disposition of the registered estate is to
be completed by registration without a certificate signed on behalf of
British Credit Trust Limited or its solicitors that written notice of
the disposition was given to the said British Credit Trust Limited"

This doesn't, to me, seem that different from a standard Form K Restriction in that the Land Registry requires prooof the Restriction holder has been informed of the sale. How, then, would the Land Registry proceed if definite proof the Restriction holder had been notified (in this case the notification has been acknowledged in an email) but the Restriction holder refused to provide the necessary certificate as indicated in PG 19?

Also, how does the Land Registry treat Restrictions held by a company that has sold and legally reassigned the debt to another? Does the Restriction automatically assume the new owner as the holder or, until the details are applied to be changed, is the original creditor still assumed as the person who has to be notified?

Land_Registry

Hi eggbox - it is not that different but the important part, as with all restrictions, is that the wording is vital to understand what is required.

This one is quite clear that we need a certificate, namely the stated persons certifying that the said notice was given. Nothing too complicated but clearly we have to be sure that the certificate being given is authentic and given on behalf of those named.

So from our perspective we would expect a certificate to be supplied. If one wasn't then we would treat any other evidence on merit.
An email acknowledging receipt of the notification may ultimately prove acceptable but I would perhaps also expect the notification to included a request for the recipient's to provide the required certificate.

If the benefit of the restriction has been passed on in some way then there is no automatic update of the register. Restrictioners will often apply for a modification in such circumstances. Anyone seeking to comply with the terms of the restriction would rely on the details as registered. If it transpired that the benefit then lay elsewhere we are again in a situation treated purely on merit.

Note - it is important to recognise that the form K restriction requires the applicant (or their conveyancer) to certify that a written notice has been sent etc. You refer to this in the earlier posts. In the case of the second restriction the certification is required from the actual recipient and this is a very important distinction. Hence my pointing out that it was a different restriction.

eggbox

Hi LRR


Thanks for clarifying and I understand and accept the points you make. The questions were asked from a, possible, perspective where the Restriction holder mistakenly thinks they are giving permission for the Restriction to be removed by providing the "certificate" that they have been notified of the sale proceeding.

This is because certain creditors seem to think they can object to the sale through having a Restriction registered? Which, as far as I am aware, is not possible under the terms of a Restriction being registered for a CO on BI?

Land_Registry

Providing the certificate is one aspect. Removal is something quite separate.
In the case of a form K restriction, as you know, it can be overreached in certain circumstances and removed automatically.
That is not always the case with other restrictions and often a formal application to cancel or withdraw the restriction is required at the same time. It is, as with all things, dependant on the circumstances.

eggbox

Land_Registry_representative wrote: »

That is not always the case with other restrictions and often a formal application to cancel or withdraw the restriction is required at the same time.

Wouldn't the above have to be notified in the terms of the Restriction, though? For example, how would a Restrictionee know that was required if the only details in the Restriction were,


"No disposition of the registered estate is to
be completed by registration without a certificate signed on behalf of
(CREDITOR NAME) or its solicitors that written notice of
the disposition was given to the said (CREDITOR NAME)"

Land_Registry

By understanding the nature of restrictions as far as what they do, how they are applied for and how they are removed. As set out in Practice Guide 19 essentially.

A form K restriction, often referred to in this thread, is applied for in a specific set of circumstances. As you will apreciate there are a number of other 'standard' restrictions which are also used in a specific set of circumstances.

The purpose of the quoted restriction is to notify others of the third party's interest only. It does not have to explain how that interest came about or explain how it can be removed or withdrawn - the latter is explained in the PG or through a wider understanding of the registration process.