Charging Order? The myth

eggbox

BigMak

I will send you a pm later with details ok

BigMak

Thanks eggbox, much appreciated, it seems that there is almost a conspiracy by solicitors not to help with this or at least make it very tricky to sort so any advice would be good.

BigMak

Just to come on to this if I was to agree to put 100% of the remaining equity post paying mortgage/fees in to my ex wifes name(we would have a separate private agreement where I would get a % down the line) would that be a simpler way? Simply to say to anyone that has a restriction against the property in my name sorry I have zero equity, 100% going to my ex/kids and I have no assets(im renting) no house, no car, no savings other than earnings for them to attach to I have zero....would that just get round the situation a lot quicker/easier?

weimimamma

I want to look at how I can buy my husbands share if our property or possibly our kids buy it. We have 100k of equity what would be cheapest option

Also need to try and do what I can to protect myself if anything happens to my husband while these things are still on the title deeds what will happen ?

eggbox

BikMak / weimmimama

What you have to understand is that a Court has placed a "charge" on the equity you refer to and that is, currently, retained in your properties.

Whilst this position remains any amount of equity, that has a charge attached to, cannot be transferred to a third party as the Restriction on the deeds will take priority, legally. If this wasn't so, debtors would just transfer their share of any equity to the other joint owner to get round the charge?

You must also understand that even if you manage to sell your property and avoid paying the CO at the point of sale; the creditor still has a legal claim on your money. It is, however, the difficulty for the creditor to try and collect the money (once released from the property), from a debtor that doesn't want to pay it; that puts paid to the creditor chasing further as its expensive and time consuming.

But care is still required when selling your property to ensure you don't encourage creditors to chase further.

BigMak

Thanks Eggbox.

So what happens if for instance "sell" your share in the house to your ex or another person named on the deeds/mortgage?
If the charge is tied to one persons name and thats what all the legal paperwork has then does hat person through staying in the property pick up that Restriction or can they not even have that transfer of equity(even if the house remains unsold) without at east letting creditors know?

I know as you say everyone would do that but is there a legal loophole there or is that just not possible without triggering further action anyway.

Completely agree that the debt still stands but with no property nor assets they would have to accept normal payments and not secured against anything as I have zero to secure it against bar my salary.
I know this is a complicated and like anything to do with money and law stupidly complicated but basically is there a legal way to "juggle" things and be smart to not trigger any crditor action until things have moved on?

weimimamma

I need to know where I legally stand if something happens to my husband about me staying in the house or retaining the property can it be sold from under me ? What options would I have

eggbox

Hi BigMak

You must understand what you are asking information on has been asked before, many, many times, by posters in the same position. The simple answer is there is no way to circumvent the Restriction whilst it remains on the deeds.

The CO (notified by the Restriction) has also been made on your "Beneficial Interest" (equity) not you personally. So if you transfer or sell your BI; the creditors legal claim is still in tact as the Restriction is still valid.

Overreaching removes the Restriction from the property deeds, when a sale is made for value, as the buyers interests take priority (and which allows the passing of the released equity to be given to the seller.) But that cannot happen whilst the BI remains in the property.

eggbox

weimimamma wrote: »

I need to know where I legally stand if something happens to my husband about me staying in the house or retaining the property can it be sold from under me ? What options would I have

If your husband were to, unfortunately, pass away; his share of the equity would go into his "estate" which any creditor would then have to make a claim on to receive payment.

It would probably depend on the size of the debt outstanding as to the action the creditor would then take if that were to happen.

Its extremely doubtful, however, that any creditor would try to enforce an Order For Sale as the same difficulty would apply which dissuades them presently.

paburd100

Hi all,

Please can you offer some help?

My stepfather has recently passed away and left a few CO's in his name only on the family home. The house was in both my mothers and his name. My mom has several options on what to do with the house but is worried she will not be able to sell it because of these restrictions.

I'm guessing the restrictions won't come off simply once the deeds are solely in her name? I guess my other questions are should she face any issues if she did sell the house ( will his debtors try to seek restitution from any sale) and is there a way to remove the restrictions without selling the house?