Charging Order? The myth

Distracted

Yes thank you, I have had another call from the Solicitor this morning, he seems to agree with me in principle but he is concerned about the advice he received over the phone from the LR.

He is now emailing them with his questions, hopefully the response will give him reassurance as his Primary concern is that he has told the purchasers solicitors that the restriction will be removed/overreached when the property titles are changed. At the moment he feels that the Restriction will still sit on the property deeds.

In the mean time I have forwarded your response LRR to him to look at, thank you guys I always new that this would rear its head again before completion, it was all going too smoothly!

eggbox

Distracted

If it helps, previous sellers have reassured the buyers Solicitors by advising that the funds can be withheld until the Restriction has been cancelled

Distracted

I'm not sure that would be possible as we're using the funds to purchase the new property (in my name this time)

eggbox

Never assume anything is impossible until its proven beyond doubt its impossible

Distracted

Indeed, I guess this thread is evidence of that.

Its more to reasure my Solicitor that the advice he has given my purchasers solicitor (ie the Restriction would fall away upon change of deeds) is Professionally correct.

His interpretation of the wording of the Restriction was as everyone on here has said that it mearly requires the evidence that notification of the Beneficiary has been served.

Speaking to the Land Regsitry appears to have given him a lack of confidence in this matter as he has asked if it would be removed, which they have said no to. What i guess he should ask is

1) Can we Transfer the deeds to a third party upon satisfying the wording of the Restriction (ie giving them evidence of having served notice)
2) After Transferring the deeds to a third party does this cause the Restriction to overreach itself and therfore cancel itself

eggbox

Your Solicitor is doing you no favours with his lack of understanding on this matter?

The Form K Restriction explains that a disposition can proceed once the terms of the restriction are complied with (i.e. the creditor has been notified by the buyer of the sale proceeding and have certified this to the Land Registry)

The Land Registry Practice Guides explain that a Standard Form K Restriction becomes liable to overreaching when a property is sold by joint owners to a third party for valuable consideration. The Restriction, therefore, has to cancelled.

From your solicitors comments to you, I have to suggest its they who are the problem on this and not the Land Registry?

Land_Registry

Distracted - as posted the devil is in the detail. So if you went with your 1) and 2) questions 2) needs to be clear that it is for 'valuable consideration' as eggbox has explained.

I am not trying to be tricky or difficult here as a Transfer does not have to be for money so the detail in 2) needs to be accurate to avoid any misunderstanding. The devil is always in the detail

Distracted

I totally understand LRR, its clear and right that the LR is impartial.

I have some dealings with Law in Contracts and my understandings are that Law is written in a spirit, however, the complexity of ensuring that 'spirit' is covered in a legal context can often fall over under scrutiny. Its this scrutiny that this thread has uncovered and found the legal weakness of this wording.

Both you and Eggbox have been fantastic in helping me through this, your advice and comment has been invaluable. I hope that my solicitor will now ask the right questions as I will forward these onto him

Distracted

Well I guess I should know more about this tomorrow. I've emailed him some stuff over.

As I said he seemed to agree with me in principle, but I believe he may have asked the wrong question or been mistaken in referring to restrictions etc. It is a bit of a minefield to negotiate, yet at the same time very clear.

He's obviously spooked now in that by telling the buyers solicitor it wall fall away, if it were not to then its his professional credibility at stake.

I will update tomorrow when I can, thanks again guys

eggbox

Well just to remind you we do now have a Solicitor on board if you have further problems with your own?

He is able to understand the process and also uses a letter from the LR to explain to the buyers conveyancer how and why the Restriction is removed.