Charging Order? The myth

headachesrus

I read this thread a number of years ago, and filed it away as I knew it would come in handy!


We are selling our property, we have a Form K restriction on it dated 2006. I have just instructed a solicitor, and advised him in advance of the restriction, and the way in which it is to be dealt with (nicely of course). He said he would take advice and come back to me.


His response this morning: "As the purchaser is the person applying to the LR for registration it will be for his/her solicitors to write to the creditor. As such, our (my solicitor's) responsibility will be ensuring that the creditor's requirements can be met so that we can undertake that the property will be transferred unemcumbered by any charge/restriction. I will however await the other side's enquiries regarding this restriction and inform you as the sale progresses".


If it is the buyer's solicitor that does this, I have no control over when they do so, if it is our solicitor then I can ask it be done on completion. I am actually happy for the funds to be held on account until the registration is complete, and for them then to be released to me.


So should it be my solicitor, or the buyer's?

headachesrus

I'm actually going to answer my own question now, I have just heard back from the Land Registry with this response:


"the applicant is the buyer/conveyancer as per the wording of the form K restriction themselves
Who actually notified the creditor is presumably a matter between the seller/buyer but we would expect to see a certificate by the buyer's conveyancer to satisfy the restriction itself"


So it is all down to how clued up the buyer's solicitors are.

DAKOTA45

headachesrus wrote: »

I'm actually going to answer my own question now, I have just heard back from the Land Registry with this response:


"the applicant is the buyer/conveyancer as per the wording of the form K restriction themselves
Who actually notified the creditor is presumably a matter between the seller/buyer but we would expect to see a certificate by the buyer's conveyancer to satisfy the restriction itself"


So it is all down to how clued up the buyer's solicitors are.

Perhaps if the buyers paid you a large deposit in bit coin? It's a weird situation where you are under no obligation to settle the charge, yet matters are apparently out of your control… I wonder if Tooms has anything to add…?TB

DAKOTA45

Tooms, (having told us what an excellent solicitor he is), seems to have disappeared…What a shame.D45

DerekE

Hi, I have spent a while looking at this very informative thread over the last few years and have also had advice from a solicitor about my situation, which is, due to illness and overwhelming debt (and no doubt lots of bad decisions by me), I haave a second charge on my main home and 3 other properties with a restriction on a 4th. I pay a token amount each month to the creditor (Mortgage Trust) and the mortgages are all in my sole name with the exception of the one with the restriction. With regard to the main home, I thought that I could perhaps save and pay off the outstanding mortgage in a few years and at the same time transfer the property to my wife as sole, unencumbered, owner and that this would return the charge on that property to 'unsecured' (or at least only secured on the other properties). The solicitor I took advice from never actually said I could do this but said that his firm wouldn't do this (most ikely as a matter of ethics) which I fully understand. My question is, if I did the conveyancing myself (as an unqualifeid conveyancer), could I achieve my goal and transfer the unencumbered property to my wife and deal with Mortgage Trust in due course?

DAKOTA45

DerekE wrote: »

Hi, I have spent a while looking at this very informative thread over the last few years and have also had advice from a solicitor about my situation, which is, due to illness and overwhelming debt (and no doubt lots of bad decisions by me), I haave a second charge on my main home and 3 other properties with a restriction on a 4th. I pay a token amount each month to the creditor (Mortgage Trust) and the mortgages are all in my sole name with the exception of the one with the restriction. With regard to the main home, I thought that I could perhaps save and pay off the outstanding mortgage in a few years and at the same time transfer the property to my wife as sole, unencumbered, owner and that this would return the charge on that property to 'unsecured' (or at least only secured on the other properties). The solicitor I took advice from never actually said I could do this but said that his firm wouldn't do this (most ikely as a matter of ethics) which I fully understand. My question is, if I did the conveyancing myself (as an unqualifeid conveyancer), could I achieve my goal and transfer the unencumbered property to my wife and deal with Mortgage Trust in due course?

Hi DerekE…. I don't think there are any laws against doing your own conveyancing. It would certainly solve a lot of problems and I don't know why many more people don't give it a go…Solicitors have to be careful as they don't want to risk getting struck off… I wonder how hard it could be? D45

eggbox

DereckE


There is nothing to stop you doing your own conveyancing, however (and I'm sure Land Registry Rep will clarify this better); but if the "second charges" you mention are secured loans then the Land Registry won't allow a transfer unless they are discharged (paid off)


If, however, you mean you have Charging Orders on the deeds, these won't be removed even if you transfer the property.

Land_Registry

DereckE - if there are restrictions in place in favour of the lender then they will prevent a transfer unless you get the lender's consent.
I don't quite follow how the second charge/main home + 3 more are set up here as you refer to paying off the mortgage and transferring the unencumbered main home but what's happened to the second charge?

If there is a second charge then how is that registered? - is it a legal charge with a protecting restriction or is it an equitable charge perhaps?

Distracted

Hello

After some advice again. I first posted on here way back on page 50 regarding my Wife having a charging order issued to our jointly owned property, this was for a debt that she incurred after a previous relationship broke down and their jointly owned property left my wife culpable for the mortgage arrears that he ran up.

The good people here gave me some invaluable advice and assured me that they could only issue a Form K restriction notice, as the property was jointly owned and the debt was only against my Wife.

Shoesmiths who were acting on behalf of The Mortgage Business Plc continued to send my wife letters which we largely ignored. Until today when she received a notice from Northampton CC

'Notice of Application for Attachment of Earnings Order' - telling her that she is required to fill out the earnings form to pay the order.

I am not too concerned as my wife has no assets (other than her 1% share in our jointly owned property) and her earnings are currently minimal due to long term sickness.

Firstly is it right that they can still pursue this debt even if they have obtained the Form K?

They also ask for my earnings on the form, as I am not mentioned in any of the orders then they have no claim to anything over my dealings - is that correct?

My thoughts are that I return this form completed showing that my wife is obviously not in a position to satisfy this debt (which she isn't)

Any thoughts comments greatly appreciated

DAKOTA45

Hi Distracted… it doesn't sound right that they are asking for your earnings, especially as it's not your debt that the charge relates to…

I had a form K restriction on our jointly owned property, then the creditor applied for and was granted a modified CO with a 14 day caution attached, (for the same debt), since when they have been threatening an Order For Sale.

I know these are not often granted, but I still think it's appalling that they are even allowed to make these threats, when one party owes no debt to them at all…How can they hold a third party responsible and penalise them for another person's debt, because this is exactly what they are doing.
It's all very wrong… D45