Charging Order? The myth

eggbox

Wembley


Sorry, your situation is still ongoing (and I'm still struggling to see why a Restriction with this wording wouldn't be overreached given the reasons why overreaching occurs?)


However, LRR has said this is because the wording of the Restriction is crucial? In this case, it's having confirmation provided by the Restrictioner that they were informed of the sale as the Restriction terms state. But the wording doesn't state that confirmation has to come directly (to the LR) from the Restrictioner.


So if it were possible, let's say, for the buyers to get the Restrictioner to confirm this fact in written form; if the LR were then forwarded this information I can't see why this wouldn't then satisfy the terms of the Restriction?

emmaT_2

thanks for the reply Eggbox

The property would maybe break even if sold or could possible be in negative equity.

I have no idea about the amount or if interest is being charged - I have managed to contact the ex and he has said no idea about the charging order (but I don't think I believe him). I have been trying to find this out from the debt company involved but I keep getting hit with data protection act that they can not discuss with me as Im not account holder - so I've asked the ex to get in touch with them to find this information out.

I can't believe this has been on the property since 2008 and i didn't know - also I don't understand why the have not taken further action in this time.

wembley14

Hi Eggbox
I can only agree with your comment.
I have received response from local LR and they say








" cancellation was due to failure to reply in full to their requisition dated----2014. The outstanding requisition point relates to a register in the proprietorship register that has not been cancelled or complied with."
I was wondering if I could have legal redress due to buyers solicitors not complying with restriction. ? Although they have stated they had complied.


LR also said that " application can be made to cancel the restriction using RX3 FORM . Any application must be accompanied by evidence that satisfactorily shows that the restriction is no longer needed. "
I think This route must now be where we go to resolve this, what do you think Eggbox and any one else with relative input.
cheers.

eggbox

emmaT

A Charging Order is only a means of "securing" a creditors debt against a particular asset. In your case it's been made against your ex's share of the property. They have no legal claim against your share of the property.

And whilst, technically, the creditor can try to force a house sale; they haven't tried because they know it's virtually impossible to get a Court to agree to sanction a forced sale on jointly owned property (a read of this thread will explain why) And if you have little or no equity in the property they would be wasting there time anyway.

So, in the short term you have absolutely nothing to worry about. But it may be worth getting shot of the property in the near future and, if you are able, start again as once you sell you are rid of your ex's problem.

eggbox

Wembly

I think if your Solicitor (or the buyers Solicitor) can provide proof the creditor was notified as per the Restrictions terms; then the RX3 may be the way to go. It would only be a technicality that the creditor hasn't provided the certificate of notification to the LR and, I feel, it could be argued that the creditor is damaging the buyers rights through unreasonably not confirming to the LR that the terms have been met.

Fudgy

Hiya,

Read all the above and still have questions

In exactly what format does the notice need to take
Does anyone actually have to respond (current post being returned not known at this address)
Obviously the debt hasn't quite gone yet as the company is "proposal to strike off" but the goal is to complete the sale

Do we time the giving of the notice on the day of exchange to ensure that if someone does get the letter there won't be time enough to carry out anything

Help

eggbox

Fudgy wrote: »

Do we time the giving of the notice on the day of exchange to ensure that if someone does get the letter there won't be time enough to carry out anything

Help

It depends on the wording in the Restriction. If you have a standard Form K, it will be for the buyer (or their Solicitor/Conveyancer) to send notification of the sale to the Restrictioner and certify that to the Land Registry. There is no time factor stated on a Standard Form K Restriction so this can be sent at anytime to suit the sale process.


But some Restrictions do vary who, how and when the notifications need to be sent so you need to check what's on your deeds at the LR.

Fudgy

thanks eggbox


the problem we're having is that it says


no disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or their conveyencor that written notice of the disposition was given to <CREDITOR> being the person with the benefit of an interim charging order on the beneficial interest of <ME>


My lawyer says that she has to actually serve the notice and get a consent


The creditor no longer exists, - it's a shell company now with "proposal to strike off" showing on the companies house register


So when she tried to contact them the letter responded 'not known at this address'


I tried the LR and they first suggested an RX4 as it was due to the following clause


The required consents are the consent of every person specified in the restriction as a person who must consent to a disposition, give a certificate or receive notice, or if there is no such person, the consents of all persons known to the applicant to have an interest in the restriction.


emphasis on the "no such person" obviously


now I have done that and they now saying they can't process it as the "no such person" still exists but there's no human being there to respond!!


the reason they gave me to do the RX4 was that if they requested consent of the creditor and had no response within 15 days then they would automatically remove the restrictions - now they are backtracking and I don't know what to do!!


Lady at the LR is very helpful but there don't seem to be practice notes on how to deal with this which I find rather amazing........

Land_Registry

Fudgy - eggbox will cover this for you but I am wondering if you have been sent down the RX4 route because you had asked how to have the restriction removed?

If the restriction is a form K restriction then it is likely to be overreached on any actual sale providing you have notified the creditor as stated in the restriction.

This is covered extensively in this thread and it is important that your solicitor appreciates the wording of the restriction and how to comply with it. As you will note the restriction simply asks the applicant to certify that they have notified the creditor only. It does not ask for their consent to br provided.

eggbox

see below double posted