Charging Order? The myth

KAWM

Thanks Land Reg, thats great .

A Caution is an entry on the register that shows the name and address of a person or organisation that claims an interest in the registered land. It does not state the nature of that interest. A caution stops any dealing with the land from being registered without the cautioners being given notice (by us) and the chance to object.

So in effect we need to get them to settle that before we can sell, otherwise they are in their right to hold up the sale? Thats nit a big deal because this is a relative small amount.

Equitable charge - this is what we refer to as an Agreed Notice, namely an entry to protect a charging order which charges the legal estate
As you already appreciate if a charging order charges a beneficial interest under a trust of land only a restriction can be entered so I assume that the charging order referred to was against a sole registered owner or the joint owners in 2005

It was against only one of the owners, does this mean they must remove it?

The devil is always in the detail and KAWM refers to some of the details although it reads as if nobody has obtained a copy of the CO itself from the court or queried the details with us to date?[/QUOTE]

No, can you tell me how to go about that please?

Lastly, can I just be 100% on this. The 3 restrictions that are in place only require the buyers solicitors to inform the creditors that the property has been sold and once the buyers solicitor registers the TR1 at Land Registry, the restrictions fall away?

Thanks again for your help with this.

Rockit

Just to keep peeps updated, my house sale fell through today. The buyers solicitor was unwilling to accept the property with the restrictions on them. He knew the law but was unwilling to put it to the test with his client who was purchasing our property just in case the deeds came back from the land registry with the restrictions still on them.

Just weighing up my options of what to do next.:(

DAKOTA45

Rockit wrote: »

Just to keep peeps updated, my house sale fell through today. The buyers solicitor was unwilling to accept the property with the restrictions on them. He knew the law but was unwilling to put it to the test with his client who was purchasing our property just in case the deeds came back from the land registry with the restrictions still on them.

Just weighing up my options of what to do next.:(

Rockit….So sorry to hear that… obviously, their solicitor is useless!! Hopefully someone will be able to advise… Dakota

Land_Registry

KAWM wrote: »

So in effect we need to get them to settle that before we can sell, otherwise they are in their right to hold up the sale? Thats nit a big deal because this is a relative small amount.

I would imagine that there has to be some dialogue and agreement over the debt. You will need legal advice to understand what rights they have as posted previously

KAWM wrote: »

It was against only one of the owners, does this mean they must remove it?

The devil is always in the detail and KAWM refers to some of the details although it reads as if nobody has obtained a copy of the CO itself from the court or queried the details with us to date?

No, can you tell me how to go about that please?

I doubt if anything would trigger them to remove it for you hence the suggestion that you clarify the CO details and whether the registration was completed correctly.
You can contact the named court for details of the CO and/or contact us with the specific details and query it's entry and/or what details we have on file

KAWM wrote: »

Lastly, can I just be 100% on this. The 3 restrictions that are in place only require the buyers solicitors to inform the creditors that the property has been sold and once the buyers solicitor registers the TR1 at Land Registry, the restrictions fall away?

eggbox clarified this for you in the earlier post. form K restrictions will be overreached by a sale for capital monies by two or more registered proprietors

eggbox

Rockit wrote: »

He knew the law but was unwilling to put it to the test with his client who was purchasing our property just in case the deeds came back from the land registry with the restrictions still on them. (

Land_Registry_representative wrote: »

eggbox clarified this for you in the earlier post. form K restrictions will be overreached by a sale for capital monies by two or more registered proprietors

Hi Rockit, this, unfortunately, is Solicitors holding up a sale rather than the Law. So its crucial your next sale attempt explains this the the BUYERS conveyancer up front before you do anything else.

I am still waiting for a response from a "Lawyer" whose company is willing to act in cases like yours. As soon as that happens will send you the details by PM.

terryw

Rockit

Was your own solicitor aware of the situation regarding restrictions when you instructed them or did you have to advise them? Did your solicitor suggest to the buyers solicitor that they contact the LR for confirmation?

Thanks

Spaceboy7

I have been trying to sale my property (with ex wife restriction orders in place) for some time now , many thanks to egg box , I was able to convince my lawyer that a restriction order was not a charging order , but she has not been able to convince fully the buyer lawyer. Who is now insisting that a retention of the restriction amount should be held by his firm until the land registry removes the restriction order. I'm not so happy with this proposal and I wondered if any one has had a similar experience or have any thoughts on the proposal ?

Thanks

DAKOTA45

Spaceboy7 wrote: »

I have been trying to sale my property (with ex wife restriction orders in place) for some time now , many thanks to egg box , I was able to convince my lawyer that a restriction order was not a charging order , but she has not been able to convince fully the buyer lawyer. Who is now insisting that a retention of the restriction amount should be held by his firm until the land registry removes the restriction order. I'm not so happy with this proposal and I wondered if any one has had a similar experience or have any thoughts on the proposal ?

Thanks

I don't think they can do that… perhaps Eggbox or LRR can advise further...

Land_Registry

It's not one for us to really comment on as it's part of the negotiation between buyer and seller.

The rationale behind how and when a form K restriction is overreached has been explained many times in this thread so readers should know where they stand.

That does not mean that conveyancers/solicitors have to share that view if they choose - this thread refers to a myriad of examples around how some view these scenarios.

What is being suggested is a halfway house and could simply be seen as part of the sale negotiation so up to you whether you agree or not on that basis. Whether they can do it is not something we would be aware of although my gut reaction is that they can add anything to the negotiations but would be aware that you may not agree and the negotiation fails.

On one side you could say Yes if you are happy that the restriction will be overreached and are willing to wait a little longer to get all the monies. And I guess it's worth asking your solicitor if they will charge you anything extra for doing that before deciding.

On the other hand you could say No and the buyer changes their mind and accepts that it will be overreached or walks away. That's what negotiations are all about.

eggbox will of course have more experience of these types of negotiation and if there is a legal reason why they can't do it then it can be shared

eggbox

Spaceboy

There is nothing illegal in what your buyer's solicitor is suggesting. He is just trying to safeguard his client from any, potential, problems. They will almost certainly advise against the sale if this "security" is not in place.

If it helps you decide what to do; this is what Brightonian suggested happen to his buyer when he sold his property in the same circumstances. As soon as the buyers details were registered he received the withheld money.

Unless there is another dynamic at play, this will help you achieve selling without paying the CO debt at the point of sale albeit not exactly in the manner you would prefer.