Charging Order? The myth

jmsc3511

Hello. I wonder if someone can help me. I bought a property with my ex-husband many years ago, we divorced in 2012. There are two restrictions on the property in his name. As part of our DIY divorce (couldn't afford anything else) we got a consent order that said subject to decree absolute, the respondent (my ex) shall transfer to the Petitioner (me) within 28 days of this order or within 7 days of the decree absolute, whichever is the later, all his legal and beneficial interest in the Home, subject to the charge. This was done after the two restrictions were put in place. He is still on the Title Deeds (I couldn't officially transfer his share to me because of the restrictions ie I was told I would have to pay them and I didn't have the money). I think also we're still joint tenants and I'm looking to change it to tenants in common (As I'm in the process of getting a new will drawn up and have been advised to do so).


When I sell, a) does this consent order give me all the beneficial interest which means I don't have to go through the hassle of trying to explain to a solicitor the difference between a restriction and an equitable charge and after paying the mortgage off, then the remainder of all the 'beneficial interest' is mine or b) does he technically still own half in the eyes of land registry and this consent order doesn't mean anything because we haven't officially transferred any title? (And then I'll have to try and find a solicitor who might understand the difference between a restriction and an equitable charge.)


Many thanks, I've been keeping an eye on this thread for years and it's amazing what you guys are doing. I suppose like everyone I have the worry that it won't all work out when I do come to sell and that I'll be expected to pay these debts off.

eggbox

jmsc3511


I'm sure Land Registry Rep will confirm, but as the Restrictions were placed before the consent order they will have priority by date. They won't, therefore, disappear through just a transfer.

jmsc3511

Thank you eggbox, that makes sense. Is there any advantage to doing a Deed of Trust giving me 99%, him 1% (we're on good terms thankfully). To be honest I don't fully understand the 'beneficial interest' bit as he's still on the Title Deeds. Should I still look for a solicitor who understands the restriction/equitable charge difference? It's more for when I come to sell that I'm looking at these things, rather than doing a transfer.

eggbox

Unfortunately, any Deed of Trust taking precedence over the Restrictions will have to do just that; pre-date date the Restriction dates.

Land_Registry

jmsc3511 - until you execute and register a transfer from the two of you to just you the legal ownership remains as registered, namely in your joint names.

I assume the 2 restrictions are form K examples. Their wording explains what needs to be done, namely notify the creditors of any disposition - in this case the disposition would be the Transfer from the two of you to just you.

If you complied with the restriction and notified the creditors then the Transfer could proceed but the restrictions would not be overreached and automatically cancelled - as eggbox mentions they won't disappear when/if the transfer is registered

jmsc3511

Ok, that makes full sense. So I will still need to go down the route of finding a solicitor who understands it all!


Thank you eggbox, when the time comes (I'm hoping to stay put for a couple more years), I'm hoping there'll be a solicitors name or two on here that I can go to for conveyancing. Fingers crossed :-)

jmsc3511

Hi LRR, just read your reply. At the time back in 2012, a solicitor told me that I couldn't do a transfer, without paying the two restrictions (they are Form K ones). Am I right in thinking that I could in fact do a transfer of the legal ownership to me, as long as I (my solicitor) notified the creditors? And then the two Form K restrictions would still remain in place?

eggbox

Remember, too, that if you are on good terms with the ex, that keeping him on the deeds will allow overreaching to occur when you do sell up.

jmsc3511

Ok, it's becoming a bit clearer in my head now! I'm going to send the SEV form to Land Registry to change us to tenants in common as should have done that when we divorced anyway. That just seems to mean that if one of us dies it doesn't automatically go to the other (if he goes first I have the beneficial interest anyway or if I go first then our children inherit as part of my will, and one is grown up now thankfully). It can all seem so complicated.......


And then it still comes down to finding a good solicitor when I sell it seems. I've thought a few times that it'd be great if a solicitor went into business specialising in this, they'd have plenty of customers!!

jmsc3511

Hello again. I've just downloaded a new copy of my Title Deeds, and one of the companies that my ex owed money to is down twice, both are as showing an interim charging order (Form K Restrictions), but not a final charging order (Form K Restriction). One 'interim order' is dated 29.6.12 and one is dated 22.8.12. Is an 'interim order' still as valid as a 'final charging order' and why hasn't the 'final charging order' for the second debtor been entered?