Charging Order? The myth

eggbox

You can add someone else to the deeds to become joint owners again.

J20BABY

eggbox wrote: »

You can add someone else to the deeds to become joint owners again.

Okay thank you. Will look into it.

jamesd

J20BABY wrote: »

Okay thank you. Will look into it.

Don't be foolish. You have a proper solicitor acting for you. Use their professional services rather than what a poster here says. They are already seeking to have the restriction removed, which is the correct thing for them to be doing.

eggbox

jamesd wrote: »

Don't be foolish. You have a proper solicitor acting for you. Use their professional services rather than what a poster here says. They are already seeking to have the restriction removed, which is the correct thing for them to be doing.

If you care to read this thread through you will see that an awful lot of "proper" solicitors don't understand overreaching and have given incorrect advice (as you did) to their paying clients regarding Restrictions.


Obviously, the creditor agreeing to remove the Restriction is a preferable option. But if they don't agree then the "foolish" option is another way of achieving the same result upon a sale.

Land_Registry

As eggbox explains a form K restriction is overreached because there has been a transfer for money by two or more proprietors to a third party. When that type of Transfer is registered the restriction is automatically cancelled.

So as mentioned adding someone else to the title may be a possible solution although I suspect you would need to consider this carefully with regards if and how the deceased's debt itself is now considered legally and if the joint ownership was severed as a result of the CO, how that impacts.

The debt may still be attached to the deceased's share in the property as a charging order can trigger the severance as you mention.

On the wider issue of the joint ownership/severance it is important to recognise that the register is not the definitive source for such information. Many people see it as being so but that is not always the case as it can also be severed in circumstances which do not then lead to any changes to the register itself or indeed an application to register a form A restriction, the form of restriction usually applied for when a severance has occurred or is required. Similarly a form A restriction can be registered where no information is provided when the joint ownership is registered.

It is therefore not appropriate to say that the register is definitive on such matters.

Unfortunately it is complicated and as such very difficult to explain in simple terms as it is not simply a registration a matter but also a matter of law around beneficial and joint ownership.

This is why, I suspect, we will have advised that no severance has been registered as there is no form A restriction on the title. That is not the same as no severance has occurred for the reasons explained above. That may seem unhelpful but in reality we are limited as to what we can advise on as the reality is this is very much legal advice you need covering not only beneficial ownership but also charging orders, two aspects largely out of our remit.

Land_Registry

Just to add to the above, and not edit, the point re transferring into joint names and then selling is an option as suggested but the following points are also worth considering

The debt remains (depending on the creditor's point of view and the finer detail around how the debt was created perhaps)

If any liability remains then that is not something we would be involved in.

The form K still clicks in with regards notifying the creditor of the sale and that presumably enables them to pursue the debt in some other way as appropriate

A Transfer which appoints someone to act jointly with the surviving owner and then together they sell (transfer) is used to cover issues around restrictions which affect the legal title in this way - such an option can be used for example where there is a form A restriction on the title.

The option though of transferring to joint names first and then together transferring is also something to consider

The reason for this is that the beneficial interest of the deceased is the focus as to who has or gets what share. And not the legal ownership which we register.

And finally, as with any advice we post, it is made in very general terms only. It is the actual application once submitted which is treated on merit that matters.

eggbox

Thanks LRR very useful info!

DAKOTA45

Hi Eggbox… just an update; I emailed the court to ask what the situation was re the set aside and it has replied that the application is still with the judge for consideration.

Wonder why it's taking so long? The court wrongfully failed to issue my defence/counterclaim so you'd assume that they need to return me to the position I was in before the CO was ordered? Hmmm…

The waiting always make me suspicious of what they might be cooking up.

I honestly believe that the creditor's lawyer is in cahoots with someone at the court as it was they who misled the court by stating that I'd not paid the court fee and my defence/counterclaim should be dismissed.

There is so much bias against the unrepresented… they deny it, of course, but the truth is out there…. the statistics speak for themselves.

I'll be back.

D45

eggbox

Hi Dakota


In my experience of the Court Services, them saying "it's still with the Judge" means it hasn't actually been put before a Judge for whatever reason?


In a case I helped set aside a CCJ, the clerk I'd had a ding dong with (regarding the waiving of the Court fee due to the persons personal circumstances) had quite obviously failed to put the application before the Judge when we enquired and said exactly the same thing.


And surprise, surprise within a few days of enquiring what was happening we received notification of a hearing. So keep on their cases as Court Clerks (in general) tend to have the same mentality as Doctor's receptionists and are not usually the most helpful bunch of people.

DAKOTA45

eggbox wrote: »

Hi Dakota


In my experience of the Court Services, them saying "it's still with the Judge" means it hasn't actually been put before a Judge for whatever reason?


In a case I helped set aside a CCJ, the clerk I'd had a ding dong with (regarding the waiving of the Court fee due to the persons personal circumstances) had quite obviously failed to put the application before the Judge when we enquired and said exactly the same thing.


And surprise, surprise within a few days of enquiring what was happening we received notification of a hearing. So keep on their cases as Court Clerks (in general) tend to have the same mentality as Doctor's receptionists and are not usually the most helpful bunch of people.

Yes… I'm starting to realise that… and it's so much harder for LIPs to deal with this sort of thing… the court process can be daunting, what with time limits, etc… and the worry is that they don't bother to keep you in the loop. I rely on emails as I am deaf and find it difficult to use the phone, so it's not just a case of phoning up to see what's happening… I have to wait until they get back to me… this is usually weeks after I've contacted them, if at all.

If this set aside is refused, then I will definitely have to continue with my complaint to the MOJ…

Thanks as ever for the support…

TB