Charging Order? The myth

eggbox

JMSVC's situation; where a joint property owner has had a CO made against them and is then later made BR

Land_Registry

I have confirmed the following with one of our lawyers so hopefully it clarifies what is required - usual caveat of course re our not being able to advise on the law but more for others who might read at a later date as you are already well aware of course

(a) We will not automatically remove the bankruptcy restriction without an application – either the trustee in bankruptcy should apply to withdraw it or the owners (both of you) can apply to cancel it. We would, in either case need supporting evidence to show that the trustee has no further interest in the property e.g. evidence of sale, a confirmation by the trustee; and
(b) the CO restriction will not be removed without an application, supported by evidence that the order has been discharged, or cancelled or otherwise has ceased to affect.

The need to apply to withdraw/cancel is always important when dealing with restrictions (and indeed Notices) where they are not overreached. If they are then these type of restrictions can be automatically cancelled. However in this example neither the form K (NRAM) or form J (OR) are overreached so hence the need for a formal application to remove them.

Whilst this may seem somewhat over onerous with regards a separate application for each they are separate interests and the registration requirements would have to be met.

The form A aspect mentioned previously is also important to consider. Whilst it is not something which would prevent the removal of either the form K or J what has in essence happened here re the BI would need to be reflected on the register as well and a form A restriction registered. I suspect one already exists but something for the joint owners to also consider

eggbox

As ever, thanks LRR

Land_Registry_representative wrote: »

(b) the CO restriction will not be removed without an application, supported by evidence that the order has been discharged, or cancelled or otherwise has ceased to affect.

Would the LR receiving evidence that the OR has sold a bankrupts share to a joint owner qualify for this if the Form K Restriction predated the OR Restriction?

Land_Registry

eggbox wrote: »

As ever, thanks LRR

Would the LR receiving evidence that the OR has sold a bankrupts share to a joint owner qualify for this if the Form K Restriction predated the OR Restriction?

I suspect so but until an application is made we cannot say with any guarantee. One possible caveat in my view is that the BI could have been transferred to the other owner subject to the charging order if the debt had not been satisfied.

That may or may not be the case here of course but this is where the legal advice must come into play, namely these are the facts and how are they viewed by the law.

The concern I have is that people can sometimes approach this from the 'wrong end', namely how can we get these entries removed and then try to fit the facts to match those requirements. Understandable but in some cases it may not be the best approach - again not suggesting we are doing so here each and every time but something to be mindful of

eggbox

Land_Registry_representative wrote: »

I suspect so but until an application is made we cannot say with any guarantee. One possible caveat in my view is that the BI could have been transferred to the other owner subject to the charging order if the debt had not been satisfied.

Could you just explain this bit a bit more as I'm not quite getting what you mean? (Sorry!)

Land_Registry

eggbox - in transferring the BI did the OR put in any conditions around the form K/CO aspect for example.
I suspect not but that would be something to investigate and understand from the bankruptcy angle and any dealings you have had with the OR

eggbox

I'm pretty sure no conditions were attached but I think its best JMSVC confirms this?

JMSCV

Thanks Eggbox and LRR

No conditions were attached by the OR, he's happy to have his restriction removed.

The NRAM one is the part I find difficult to understand. Their restriction is on my share of the beneficial interest in the property. As I no longer have a beneficial interest is their restriction no longer valid?

eggbox

Thanks for clarifying JMSVC, hopefully LRR can now clarify what the situation is?

wembley14

Hi Eggbox


thanks for your replies to my last post. At least you understood my frustrations concerning the non over reaching taking place on notification restrictions.


Also, I do feel for JMVC in his endeavours as he seems to be bashing his head against a brick wall too. The same with me, having no longer any beneficial interest in property as the property was then sold with these restrictions in place and being complied with on title but they were only in my beneficial interest( exactly the same debt ). So what's the point/benefit to a creditor of leaving restriction on a property no longer owned by sole debtor/joint owner. ?? Then Land Registry refusing to allow application to register new owner even though complied with. No over reaching taking place. !!!!!




You are right I am not miffed with LRR on this thread as he has been very informative to us all. Its just the conflicting info my solicitor and I has received in the last year. Especially when trying to get a definitive answer regarding the modified form K. I received email response from local Registry office regarding the signed certificate needed from creditors 14 days prior to disposition.


The land registry stated, having consulted their in house LAWYERS they did not need acknowledgement from creditors that they had been notified. Only that they(creditors) needed to be notified 14 days prior, which in fact, were notified at least 2 months prior to sale. But still the LR refused to accept the letter sent to creditor confirming this when the buyers applied to register their interest.


I think this shows that the modified restriction added was so rare, that the LR was not sure how to deal with it, The LRR has already confirmed this rarity. He says that their must have been other factors involved when the courts permitted this application. But I can confirm that there were no other issues to aid this decision to allow modification to original standard worded restriction, which was added 5 months prior.


The fact that the county courts and the land registry is allowing these protections on such a wide scale on charges/restrictions, shows that they in fact do not check to see if the property is joint owned/sole debt, joint debt/joint debt and sole owner/sole debt, and therefore wrongly putting everybody in the same boat.
Thankfully there is now these online forums and legal info on other sites giving the ordinary person the chance to collect the requisite information to help address there individual cases.


Keep the good work going Eggbox and fellow contributors its invaluable.