Charging Order? The myth

eggbox

LRR

Thank you and I agree and I have asked what wording is on the register which will, hopefully, clear things up.

DAKOTA45

eggbox wrote: »

Dakota

Have you heard back from your neighbours Solicitors yet?

Not yet...

DAKOTA45

This is the part of LR rules I can't quite get my head around..because LR does not seem to have any say in whether a modified restriction is necessary or appropriate. How do they decide what is appropriate?Does the creditor need to ask permission from LR for a modification to be allowed? It would seem not, as they can just apply directly to the Court for it…My creditor already had a standard form K, (which would seem to be adequate), but then they obtained a modified version, without any involvement from LR.

The Land Registration Rules 2003 prescribe a number of standard restrictions for use in common situations. Applicants can still apply to register "non-standard restrictions", but the Land Registry will refuse to register a non standard restriction if a standard restriction is appropriate, or if the terms of the non standard restriction are unreasonable or are such that the Land Registry would find it difficult to ascertain whether an applicant for registration had complied with the terms of the restriction.

Land_Registry

DAKOTA45 wrote: »

This is the part of LR rules I can't quite get my head around..because LR does not seem to have any say in whether a modified restriction is necessary or appropriate. How do they decide what is appropriate?Does the creditor need to ask permission from LR for a modification to be allowed? It would seem not, as they can just apply directly to the Court for it…My creditor already had a standard form K, (which would seem to be adequate), but then they obtained a modified version, without any involvement from LR.

The Land Registration Rules 2003 prescribe a number of standard restrictions for use in common situations. Applicants can still apply to register "non-standard restrictions", but the Land Registry will refuse to register a non standard restriction if a standard restriction is appropriate, or if the terms of the non standard restriction are unreasonable or are such that the Land Registry would find it difficult to ascertain whether an applicant for registration had complied with the terms of the restriction.

DAKOTA45 Had we not covered this already in your previous posts back in March? #1865 and thereabouts?

They apply to the court for the modified restriction and we are not involved until they then apply to register it. The order has to be precise in it's instructions but as you appreciate this is a matter for the court and the creditor - where the debtor comes into the court process we do not know but presumably others can advise.

There is no appropriate standard restriction when the court orders that a modified form K restriction should be registered

We register these interests as required and on receipt of an appropriate application. We then manage the register and remove them as required and on receipt of an appropriate application. Our role is not as an arbiter on matters between a creditor and debtor or as an enforcer of COs or the law.

DAKOTA45

Land_Registry_representative wrote: »

DAKOTA45 Had we not covered this already in your previous posts back in March? #1865 and thereabouts?

They apply to the court for the modified restriction and we are not involved until they then apply to register it. The order has to be precise in it's instructions but as you appreciate this is a matter for the court and the creditor - where the debtor comes into the court process we do not know but presumably others can advise.

There is no appropriate standard restriction when the court orders that a modified form K restriction should be registered

We register these interests as required and on receipt of an appropriate application. We then manage the register and remove them as required and on receipt of an appropriate application. Our role is not as an arbiter on matters between a creditor and debtor or as an enforcer of COs or the law.

Sorry, and many thanks by the way for being so patient with me, but I am genuinely confused... it's the bit in bold that I don't understand… where it states that the LR will refuse to register a modification, etc.,
When does LR have the jurisdiction to allow or otherwise…? Certainly not after the Court has agreed the modification.
I am very confused as it seems the creditor can apply for a modification very easily and without requesting any kind of permission from LR. My creditor just told the Court that the Standard form K did not offer any security. In other words, it's not fit for purpose. If that is the case, why does anyone bother with the standard form K restriction at all? Bizarre.

Land_Registry

DAKOTA45 - the bit in bold in your previous post is the right wording as it states refuse to register a non-standard restriction

A modified form K restriction is, from a registration perspective, a different thing as it is backed up by the court order and we are not above the court re such things.

Providing the court order is specific re the requirement to register the modified restriction then we must do so.

Enterprise_1701C

eggbox wrote: »

No it won't make any difference. If the creditor is claiming you haven't paid off the debt, and you have no proof you have, then what you have registered on your deeds won't be removed. And apologies if you have already explained this bit , but what is actually registered on your deeds (what is the actual wording?)

Just to say I have seen this and hope to reply soon. In the middle of sorting out a freezer emergency

Enterprise_1701C

eggbox wrote: »

No it won't make any difference. If the creditor is claiming you haven't paid off the debt, and you have no proof you have, then what you have registered on your deeds won't be removed. And apologies if you have already explained this bit , but what is actually registered on your deeds (what is the actual wording?)

We have a letter from their solicitors to the mortgage company dated 22 Apr 1994 saying "We write to advise you that we have now obtained a Charging Order Absolute dated 5th April 1994 against the above property in respect of an outstanding debt due to our clients."

We have a form from the Land Registry stating that the following entry by way of a [caution under section 54 of the Land Registration ACt 1925] has been made in the register then hand written underneath "Caution in favour of (the creditor)

Then Note: The nature of the interest protected by the caution is stated to be (followed by handwritten) charging order absolute in x County Court dated 15 March 1994.

We also have a document headed "Office Copy Issued By The Weymouth District Land Registry Showing The Subsisting Entries On The Register On 1 December 1991 Under S.113 Of The 1925 Act This Copy Is Admissible In Evidence To The Same Extent As The Original"

Edition Date : 29 July 1993

In the Title Absolute section there are two entries dated 22 March 1993 and 29 July 1993 both stating Caution in favour of (creditor).


Ironically if it had not been for this charge we would have paid of the mortgage a lot earlier, we only found out about it when we had been offered a better mortgage deal but this meant they could not make good on the offer.

eggbox

Hi Enterprise

I'll let LRR comment if the Cautions can be overreached (and how that is) but can I ask if the creditor concerned has ever notified how much the debt is for and if its attracting interest (which would have had to have been applied for at the time the CO was applied for?)

Land_Registry

I don't think overreaching comes into play here as Enterprise is referring to a remortgage application

If we received an application now to remortgage or dispose of the property we would serve notice on the cautioners and then deal with any response as appropriate. They would have 15 working days within which to object.

In this example though I assume the lender would not get as far as the point of applying to register the new mortgage due to the presence of the cautions

I assume Enterprise has confirmed with the court that the two orders remain in place?