Charging Order? The myth

eggbox

Khealy43


To try help could you let us know the reason the Restriction came to be placed, what type Restriction it is (eg Form K, Form A etc) and if possible the wording of the Restriction on the Deeds?

Land_Registry

eggbox wrote: »

Hi, LRR I'm pretty certain it would given this thread is aimed at that type of Restriction?

And what's this I hear about the Land Registry being considered for privatisation?

Will there be a thinning of the herd if that happens?

There is a consultation process now underway

What the outcome of that will be and what decisions the government ultimately make are of course unknown so that would also go for any 'thinning of the herd' or otherwise of course

Land_Registry

eggbox wrote: »

Khealy43

To try help could you let us know the reason the Restriction came to be placed, what type Restriction it is (eg Form K, Form A etc) and if possible the wording of the Restriction on the Deeds?

This reads as if it is a consent restriction so certainly not a form K

OP's solicitor is doing the correct thing in applying to disapply the restriction based on the Father's non-response/action - the onus will be on that evidence and doubtless any response from the Father to any notice we then serve, if that evidence is deemed sufficient.

If that does not work then legal action through the court is probably the next step

Distracted

eggbox wrote: »

Distracted


Unless there is interest being added to the CO debt then I would just forget about it.

The AOE's letter has arrived purely as some guber at the DCA has recently reviewed your file and is looking for a way to extract something for the creditor.

You will see on this thread people being threatened by DCA's with an Order For Sale even to the point of sending out valuation letters. But it's purely a tactic to intimidate and unnerve people into thinking something more drastic will happen if they don't settle the debt.

A search of this thread and google will show you nothing will happen due to the extreme difficulty of obtaining an OFS on a family home.

I know the fact the debt is there is an irritation (and the fact its jointly owned and the other half is getting off scot free adds to that) but try not to let it dominate your life.

Eggbox

Thank you, its down to yourself LRR and the other good people on here that I am able to sleep.

I really appreciate the advice you have given to me. I will get rid of it one day but knowing that I have time to sort myself out first gives peace of mind.

eggbox

Land_Registry_representative wrote: »

What the outcome of that will be and what decisions the government ultimately make are of course unknown so that would also go for any 'thinning of the herd' or otherwise of course

I think we both know that if the LR is privatised then jobs are likely to go as commercial pressures will then kick in.

eggbox

Distracted wrote: »

Thank you, its down to yourself LRR and the other good people on here that I am able to sleep.

That's good as you not being able to sleep is their (psychological) aim.


Once they see you aren't a quivering wreck they move on to the next target.

freebiequeen

Does anyone know what the position is regarding overreaching if the charged property was jointly owned - and still is on the face of the registered title - but, in reality, the seller paid his joint owner off some years previously, so that, upon completion, the entire proceeds of sale are paid only to the remaining joint owner?

Also, I read somewhere that a charging order affects the property and not the person. Does this mean that, even though the restriction slips away on completion, an unsatisfied charging order may still have the potential to bite the purchaser?

eggbox

freebiequeen

Overreaching occurs when joint owners sell to a third party for "valuable consideration". So for money and not when just transferred.

What you are explaining sounds as if the "seller", whilst paying off the other joint owner, didn't get the other joint owners details removed from the deeds? If that is the case, then overreaching will still occur when the property is sold as the house is still registered at the Land Registry as having more than one owner.

A Charging Order is made against an "asset" of a debtor. In the case of property it is registered against the debtors " beneficial interest" in the property.

The difference, however, is that if the property is jointly owned; then the CO cannot be registered as an "equitable charge" against the property (or land) in the same way a mortgage would be.

You can't sell your property without paying off your mortgage as the Land Registry will not transfer the owner details until all charges registered on the deeds are settled. This would be the same for a CO registered against a sole owner that would be seen as an "equitable charge" on the deeds.

But if the CO has been made against a joint owner, then only a Restriction notifying that a CO has been made against the "beneficial interest" of one of the owners is allowed. In this circumstance, only the terms of the Restriction have to be met to allow the property to be transferred by the Land Registry.

Most Restrictions notifying a CO only require notification to the creditor (and by the buyer not the seller) that a sale is proceeding to remove the Restriction to allow a sale to proceed (the debt behind the CO does not need to be discharged at this point.)

In these circumstances the CO also becomes redundant as the "beneficial interest" is no longer in the property so can no longer be notified on the property deeds. However, the CO was only granted as the creditor obtained a CCJ against the debtor first.

The CCJ will still be inforce, therefore, and the creditor will still be able to enforce the judgement by other methods if they see fit. This, I would imagine, would depend on if the creditor feels they had something to chase? For example - if you purchased another house out of the proceeds.

DAKOTA45

Hello again! Still no counter argument from the creditor in relation to my equitable set off…

I can't remember if I have asked this before, but when the creditor applied to Land Registry for an ICO, neither he nor his lawyer signed the Statement of Truth which accompanied the application… would this necessarily invalidate the Order? I'm sure the Court would just give them a certain amount of time to amend the statement, but the error wasn't noticed long after the ICO was actually granted, so is it possible the final CO wasn't valid? This is just in addition to the other wrongful stuff, but every little bit of evidence helps…

Back as soon as I hear anything! D45

eggbox

Dakota


Does the other side not have a time limit in which to respond?


And so you don't alone in your fight for justice read paragraph three below


http://www.theguardian.com/law/2016/apr/23/legal-aid-cuts-defendants-unrepresented