Charging Order? The myth

Land_Registry

wembley14 - whilst i appreciate the confusion caused I am myself at something of a quandry as to the position being described and I am unsure if anyone is going to be able to offer much assistance unless a number of points are clarified further.

The following is based on the premise that there were in fact two charging orders made

Whilst I remain of the view that you should be dealing with this on three fronts, namely with our local office, your solicitor and the court by adding some thoughts to the forum thread it may help others to offer some wider advice on this for you.

Unfortunately your confusion remains so I am uncertain as to whether the points I have made previously are helping but I shall continue to try and help in the hope that others might add their own understanding

1. if there were two orders then they have not modified the original restriction and these are two restrictions applied for quite separately. The PG guidance you refer to relates to a scenario where an original restriction is modified but that is not the case here. You may of course be privy to more details on this though.

2. you refer to advice now being given re 'disapplying' the restriction and mention that this is 'usually used' in a certain set of circumstances. The guidance does not say 'only used' so to my mind disapplying may be appropriate in another set of circumstances

To my mind, and again I do appreciate how you are trying to find a way through the complexities of the matter, these points merely add to any layers of confusion albeit that the disapplication may be an option as suggested.

One crucial point though appears to remain, and as far as I can see from previous posts the question regarding why the creditor applied for and seemingly obtained a second order has yet to be answered.

Whilst I would guess that in many cases a debtor may not be in court at the time the order is granted presumably over the subsequent months/years there is an opportunity for a debtor to obtain more details.

If the circumstances that existed or the reasons given for the modified restriction and/or separate court order at the time have since changed then would this not be grounds to go back to the court for the order to be dismissed?

Or, and this may be more likely, if the creditor was given sufficient notice of the sale what additional obligation are you or your solicitor still under re the second order? As mentioned a second order is usually granted where the creditor convinces the court that they need the additional protection so do those reasons still remain despite the fact the property has been sold?

Hopefully eggbox will be able to offer some wider advice in due course but if you could add any more details re the charging orders and the court process that may help as well.

wembley14

Hi LRR,
the current situation is that the local LR office has sent a requisite to new owners solicitor for a certificate from restriction holders. They ( LR )will not allow the letter which my solicitor received from the solicitors acting on behalf of the creditors. This letter for payment redemption was their only response once they had been notified of sale 6 weeks prior to sale. The LR say they want certificate from creditors which also brings us 360 degrees as they will not comply. The local LR have not in any way asked for details of how the restrictions were brought about or subsequent dealings which of course I know is not in their interests to do so. They should only be interested in compliance of restriction and the non compliance of creditors not acknowledging the notices given. I just hope this application for disapplication resolves this problem. Fingers crossed. Thanks again LRR for input

eggbox

He Wembley/LRR


From what's been posted I think the purchaser seeking cancellation of the Restriction by a Court has to be route taken. Because of the wording in the Restriction the LR have no authority to cancel it; so it has to be argued that the Restrictioner is prejudicing the purchasers rights in deliberately not supplying the certificate.


It should be argued that the Purchaser's interests have to take priority as the Restriction's removal does not require payment to be made to allow a Disposition and, also, that the Restrictioner has been notified of the sale proceeding within the terms of the Restriction (it would be different if they hadn't been notified.)


I think you should, also, make a case that the withholding of the certificate also prejudices the joint owner of the property receiving their half of the proceeds, too?

Land_Registry

I would have to agree with eggbox here although the nuances of debt/court orders is not my area of expertise.

It is important to remember that there is a court involved here so if a court has made an order, or two, in this case then they have passed judgement on the evidence provided and presumably would do so again as and when further evidence is supplied.

Whilst this may seem unfair/unreasonable or confusing there is a legal process to be followed in much the same way as there is a registration process as well. Both are intended to protect all parties but as I am sure you appreciate the court is the enforcement agency here.

So if a court has given the authority for the second restriction to be registered then a certificate must be provided. If that certificate is then not provided presumably the order has not been adhered to and it would be for the court to then consider and order what happens next.

Whilst an application to disapply may resolve the problem for you I would suggest that any focus should be on the court's view re the debt and it's previous orders.

Emzz

Hi me and husband have joint mortgage on our property
He has a debt for £3500 which court agreed to £5 month payments which has been paid however now have recieved a court letter saying they want a interim CO against the property the debt is my husbands and we are currently seperated I live in. The property with our 4 children and pay the mortgage myself with no financial help from husband
The letter says I can object to the order but I have no idea where to begin
also does a CO mean I will HAVE to sell my house or I WON'T be able to sell ? this is so confusing I just would like to know what objections I should use in the letter I need to send back to them please can you keep it simple terms as I have difficulty understanding anything to complex thank you

eggbox

Emzz


First of all don't worry, a CO won't mean you will have to sell your house. In your circumstances it would be impossible for your husbands creditor to obtain an "Order for Sale" so much so they wouldn't even try. It also doesn't mean you won't be able to sell your house either.


If the property is jointly owned the CO cannot be placed on the property itself, it is placed on any financial benefit your partner has in the property (called Beneficial Interest). The CO is also only against his share of the equity and is nothing to do with you. If you sell the house the debt is only allowed to be taken from his share of the property.


But, if you are paying the mortgage on your own, I would see if a remortgage is possible to get him off the deeds. As it currently stands when you do sell the house you partner will be entitled to 50% of the equity despite you paying all the mortgage. If a remortgage isn't possible I would investigate getting the percentage of ownership changed in your favour to reflect he isn't contributing to the mortgage.

Emzz

Ok thank you has made everything a bit clearer would you have any ideas as to what I could put on the letter of objection ? as I don't agree to it but need reasons to object to it

eggbox

Charging Orders are very difficult to prevent as the judiciary seems biased towards granting them regardless. However, my view is if you don't ask them not to they definitely will.


In your particular situation I would explain that your partner no longer lives at the property and, crucially, does not pay anything towards the mortgage. Also, explain that the granting of a CO could leave the property open to having to be sold putting the welfare of your children at risk (This would never happen for the reasons I explain above, but it can, theoretically, happen so the Judge would have to listen to the argument)


That's as much as you can do really but do throw anything in with your argument that means a CO would be damaging to your interests.

Emzz

Thank you so much

Thrugelmir

Emzz wrote: »

He has a debt for £3500 which court agreed to £5 month payments which has been paid however now have recieved a court letter saying they want a interim CO against the property the debt is my husbands and we are currently seperated I live in.

What arrangements have you come to once the children have left full time education with regards to the property. As I assume that you ex still holds a financial interest in the at least part of the equity in the property. This what the CO is being placed over.