Charging Order? The myth

Duckstrel69

'No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to XXX'...

Is this wording 'standard' eggbox?

eggbox

Duckstrel69 wrote: »

'No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to XXX'...

Is this wording 'standard' eggbox?

Yes, it just means that either the buyer (the applicant) or their conveyancer (solicitor or conveyancer) have given the Land Registry written confirmation that the Restrction holder has been notified of the sale. (Please note that nothing has to be done by you or your conveyancer to comply with the Restriction! Your conveyancer has disadvantaged you by notifying the creditor well in advance of the sale. The standard Form K Restriction does not give any time limit for notification meaning the creditor can be notified at the very last minute.)

The Land Registry Rep on here has also confirmed that a "certificate" is just written confirmation that the person supplying the certificate states in their confirmation that "I /We certify that written notification of the sale has been given to etc, etc"

So I would ask your conveyancer to explain why they have contacted your creditor when they had no need to?

Duckstrel69

When you say ‘disadvantaged’; is it likely that they’ll issue a final charging order to ensure that they receive their monies (and then add the extra court charges to my bill)?

eggbox

I think you are getting a little confused over the "Final" CO process. With an Interim CO in place it gives them the same "Rights" as a Final one in that a Restriction has been placed on the Land Registry. Going for a Final CO at this stage wouldn't gain them anything they haven't already got.


The "disadvantage" is your conveyancer has notified your creditor much earlier than they had to be and given them plenty of time to act (should they so wish)

Duckstrel69

I am a bit confused, if a final charging order is not needed, and they've already got me over a barrel with the interim, what else would/could they do with this extra time (because of the early notification) ahead of sale?

eggbox

Just to be clear, the Interim/Final CO isn't the reason for the early notification. That's your conveyancer not knowing what they are doing.


The extra time gives the creditor time to prepare for whatever they want to do. Technically, if they felt you weren't going to cough up they could go for a freezing order and drag you back to court (this is extremely doubtful as its expensive and time consuming to do!) but they have still been given the opportunity to do so should they so wish.


Now, if you sell and have been passed the proceeds, but the creditor is notified right at the death, YOU will have had the opportunity to disperse the funds how YOU see fit before the creditor can lay claim.


It's important to remember that there is no legal obligation placed on you to pay off the CO, notified by the Restriction, at the point of the sale happening.

Duckstrel69

Okay so bearing all this in mind, (and thanks for everything) am I right in thinking that in this case, bottom line, it comes down to whether my buyer’s lender would be happy for the sale to go ahead if my conveyancer could successfully assure them (via buyer’s solicitor) that the restriction would drop (because of being over-reached) upon transfer of the property to the buyer? (creditor gets paid out of proceeds so they have no axe to grind)

eggbox

That is correct. As has been mentioned on this thread, you can offer to receive payment AFTER the registration is confirmed to give the buyer/lender pece of mind.


But - if you are stating you are going to pay the creditor anyway, from the proceeds of the sale, they are going to question why you don't just get the matter settled when the sale happens? (which I'm struggling to understand too?)

Duckstrel69

Because my conveyancer has told me that I have to pay off the debt prior to the sale (and I don't have the money)

eggbox

Duckstrel69 wrote: »

Because my conveyancer has told me that I have to pay off the debt prior to the sale (and I don't have the money)

This is where you really wonder how these people get trained. The CO was on your financial interest IN the property you are selling. If a creditor is going to be paid Solicitors deduct the amount owed to a creditor FROM the proceeds of the sale.


Your conveyancer, sadly, is one of those that can often prevent a sale happening as they don't know what they are doing.