Charging Order? The myth

eggbox

Taffybiker wrote: »

How can I ensure the BI remains fixed? Didn't you previously mention that the amount must remain fixed once the transfer has been completed?

I did, and it should, as any other scenario doesn't make sense as it would cut into your BI which isn't allowed. All I am saying is you need these facts verifying, legally, before you proceed. A way to do this is a Trust Deed.

Taffybiker wrote: »

If it has increased, can I get it at least reduced to the value it was at the date of the Court Order (2012)?

The key here is to prove your interest in the property was greater than your ex's. So whatever has accrued can only be Charged against your ex's share.

I would also be inclined to investigate the point you made regarding your mortgage provider's actions in forcing a joint mortgage when you remortgaged? If it was for any other reason than affordability (which would have to be proved by them) then there may be a case to sue them for the position their actions have put you in now?

Land_Registry

eggbox wrote: »

LRR

Every legal opinion I have sought (bar none) has told me a CO automatically severs a Joint Tenancy as you can't place a charge against the BI of just one owner under that type of ownership? Hence, you have to become Tenants in Common to separate the interests? Are you saying this is not the case as far as the LR is concerned?

I have also now dealt with, approaching, what must be three hundred clients with a Restriction/ Modified Restriction and non have ever had a Form A Restriction registered on their deeds? Does this absence affect anything regarding the above?

eggbox - you covered this in post #2194 when you stated ' it's not clear on the Land Registry if owners are Joint or TIC'
and DAKOTA45 went on to post 'we decided that there was nothing which stated that we were tenants in common… unless that automatically happens once a CO is in place'

My post was explaining that when a form K restriction is registered to protect a CO against a sole debtor when they are joint owners then a form A restriction is not automatically registered.

As you appreciate the register is not the sole source of information around the joint tenancy, hence it not being clear as posted. We only register legal estates. The proprietor is registered as the owner of the legal estate.

My posts are invariably from a registration perspective and not an explanation of the law so whilst I am sure you are correct the point I was making was that a form A restriction is not automatically registered in this scenario and has to be applied for.

From a registration perspective the absence of a form A restriction on DAKOTA45's title changes nothing. We are after all dealing with the legal estate and compliance with the restrictions and/or overreaching as appropriate.

eggbox

LRR

I'm a little confused by your response? All I am asking is that when a CO is registered against a Joint Tenant whether or not the LR has to treat the ownership as having been severed?

Land_Registry

eggbox - sorry for any confusion but you asked if the absence of a form A restriction affected things so I was trying to explain how it does not re the form K restriction.

I am unclear as to why treating the ownership as severed (or not) alters anything here from a registration perspective? It would do if a form A restriction was registered but as explained that is not done automatically in this instance

Would it help if I shared the details form the Notice we would serve on the owners where a form A restriction was also applied for by the creditor for example?

eggbox

Hi LRR

I was asking if the absence of a Form A Restriction affected the type of ownership owners had after a Charging Order was granted against one of the owners?

This question isn't from a registration perspective it's a wider question just to help people understand their position should a CO be granted. You comment regarding Bankruptcy definitely severing ownership seemed to infer a CO doesn't automatically do that? That is contrary to what I was lead to believe as I was told it automatically did?

If it does or doesn't (for reasons you might be able to explain) is what I am trying to establish?

DAKOTA45

I definitely haven't had any notification re a Form A… just the modified form K…

Perhaps the CO has to be against both proprietors for their joint tenancy to convert to Tenants in Common…?

DAKOTA45

That aside… I still haven't heard anything further from the JC's solicitor re the Order for Sale.

I emailed the Court as there is still some confusion surrounding its failure to take my equitable counterclaim into consideration at the hearing for the final CO.

I received a letter back, saying;

"No comment to make. The court only deals with paper applications."


What should I make of that…? Does it mean they do not correspond by email or perhaps that I will have to make a formal application on N244 to set aside, etc…? It's a bit ambiguous, isn't it?

If the court failed to adjudicate because of its mistaken belief that I hadn't paid the necessary fee (from which I am exempt), then perhaps I would have the opportunity to bring the counter claim...

Hmmm...

Land_Registry

eggbox - profuse apologies as I can now see where the confusion has been caused. Completely my fault as I went too far with my Bankruptcy comparison.

We don't automatically enter a form A restriction on bankruptcy as I first posted. That still has to be applied for. The distinction I should have made was that if one of two beneficial joint tenants becomes bankrupt, the bankruptcy order severs the joint tenancy

Section 1 of our Practice Guide 76 on charging orders and our Practice Guide 24 on Private Trusts of Land may be of interest here and help with the distinction.

eggbox

DAKOTA45 wrote: »

What should I make of that…? Does it mean they do not correspond by email or perhaps that I will have to make a formal application on N244 to set aside, etc…? It's a bit ambiguous, isn't it?

It means both of these.

eggbox

LRR

No problems and I think I get it now. Whilst the Legal ownership remains jointly owned it is the Beneficial Interest that is then severed by a CO being granted against one owner.

It is then this interest that is then owned as Tenants in Common with each owner holding a separate, individual, share.