Charging Order? The myth

helpappreciated

Thank you so much for taking the time to write such an encouraging message.
It looks like we have to find another solicitor in a hurry. Can anyone help, not sure how to start and how to approach them
Thank you again:)

eggbox

Sparklyfairy

The first thing to remember is YOU pay the Solicitor so you make sure he understands what you want him to do upfront. They either follow your instructions as to what you want to happen or you don't use them. Trust me, in this financial climate there will be plenty of takers.

If there is to be any difficulty to be encountered it may, possibly, be from the buyers Solicitor asking questions when they do a Land Registry search about the Restriction. This is where you need to be clear and, possibly, get the Land Registry to confim beforehand that all that is required to change the Land Registry title ownership is a Certificate veryfying that notification to the Restriction holder has happened. (Remember the Land Registry will confirm this as they have done so with me)

So don't be swayed or blinded by "lawyer speak" telling you different as the terms of the the Restriction are there for them to read in Black and White!

Sparklyfairy

Many thanks, eggbox - the restriction should fall away upon completition, but yes I will be sure to speak to Land Registry should this arise when we do sell...crazy to have to educate solicitors on this matter!

eggbox

Sparklyfairy

As I see it, yes, the Land Registry would have no choice but to remove the Restriction once the terms for "disposition" have been met.

The Solicitor told me to read the Land Registry Practice Direction 19 and in particular Appendix A which, as I read it, means that if the property is in joint names and the debt is only in one persons name then a creditor can only apply to place a "Restriction" on "Beneficial Interest".

The Restriction is then only in place to notify any prospective purchaser that there is a "third party" interest in the event of a sale. But the Creditor has no automatic or legal right to be repaid as it would under an "Equitable Charge" placed by a full charging order. So it's up to us to be "resourceful" and work the situation to our advantage.

I have written one last time to the Land Registry solicitor (I do suspect she's getting fed up of me now!) and i will update the site as soon as she replies (usually about 10 days time)

Sparklyfairy

Thanks for this insight eggbox...please keep us updated!

helpappreciated

Here is today's reply

" I now confirm that I have spoken to the Land Registry and explained your point regarding the charges on your property. The Land Registry confirmed that it is not possible to sell the property without paying off the charge holders and all charges

on the property remain valid and enforceable.
They further stated that if a property is sold and the charges are not paid off they will nullify the sale once they receive the transfer documents.
In summary we will be unable to sell the property without paying off the charge holders."

eggbox

HELPAPPRECIATED

Who was that from and was it regarding a Charging Order or a Restriction?

helpappreciated

That was the reply from our solicitors. They keep talking about 'charges' not 'restrictions' although we have explained the difference to them and have pointed out the wording on the Land Registry documents for our property.
The replies they said they got from the Land Registry seem contrary to everything in this thread.:(

eggbox

HELPAPPRECIATED

Smells fishy to me?

Are you 100% certain your Solicitor asked about a Restriction placed on a single debt on jointly owned properties? Because if he did it conflicts with the info I received.

I corresponded with the main Solicitor for the LR and she categorically stated that once a Restriction Notice has been complied with then what happens after that is NOT a matter for the Land Registry.

The LR, as the Solicitor was at pains to explain to me, is a recording agency. It has no powers to prevent or nulify sales only what it can legally record for the details of the property on the LR. Obviously, no Solicitor acting for the purchasers is going to go forward with a sale where he is told the details can't be changed on the LR, but a Restriction cannot prevent that once its terms have been complied with.

I would have another word in your Solicitors ear if i were you!

helpappreciated

Yes - we will spell it all out to them again and let you know what happens.
Thank you for your support.:)