Charging Order? The myth

eggbox

jez123cars wrote: »

Thank you Eggbox you are a star. I believe a light bulb moment has occurred and I now understand it.

No problem and I do understand as my head nearly exploded when I first started to read up about this subject? If you add in how difficult it is to understand that the Law can be "malleable" and is, often, shaped into position by those who know how best to use it; then it can be very difficult to get your head around such matters?

But the "malleable" can be worked both ways and, as I write, I have been notified that another Solicitor is on the horizon that appears to agree regarding not having to settle the CO upon sale (and which I will update the board on when I have had a response from them?)

Which means just because one legal opinion goes against your argument, it doesn't mean that opinion is definitely correct until ruled on by a Court?

DAKOTA45

Eggbox….I have been searching for a word which sums up the Law… and 'malleable' fits perfectly! Just when you think you have finally understood something, the rug gets ripped from underneath you because there is always a rule which contradicts the rule you were relying upon… or else they simply change the rules, but unless you are up to date with such matters, you don't realise there has been a change… it's an absolute minefield!
Many thanks to those kind people such as yourself who give advice, free of charge, & help so many of us to sleep at night.

D45

eggbox

Dakota

No problem and, yes, I do think "malleable" is an apt word for the Law and it certainly can be a minefield. Especially when you consider that the legal representation available to people is not of an equal ability?

Are you back in Court tomorrow and has the other side been in contact at all?

DAKOTA45

It's just crazy that they can allow a trial where one person is armed to the teeth with expensive solicitors/barristers and the other side, with no representation at all just has to muddle along with no knowledge whatsoever of the CPR. It should be a national scandal that 'justice' is meted out where there is an inequality of arms… no level playing field and with one side so obviously at a huge disadvantage. It is so wrong that the person who can afford legal representation gets to win in 99% of all cases and where the other side would have been successful, but for the lack of a lawyer. It makes me so very angry!

So… where I'm at atm is that I have asked his lawyers if he is willing to enter into some kind of mediation. This is not the 1st time I've asked. the previous time was whilst we were waiting to see the outcome of his SJ application. well, that's been and gone, (and as you know, it didn't go their way), but I'm still waiting…
It's all about money… they will drag this out for as long as he is willing to pay them. I don't think he cares about spending the money… this is all about making me suffer for as long as possible… it's a vendetta pure & simple… why else would he have done what he did when he had enforcement for the debt and with my sale pending? He could have been paid 3 years ago…. and he messed it all up.

So… watch this space, I guess…

D45

jez123cars

Hi all especially Eggbox who has been brilliant so far, but more advice needed.

We have now sold our house and had an offer accepted on another. got the mortgage broker sorted and had done everything we needed we have passed the affordability passed the credit check etc etc everything going swimmingly until the lender says NO found out its because we are trying to borrow more than we are currently but said if we could put bigger deposit we would have more chance as the LTV is too high in our situation (1 month in arrears which will be cleared by 28th of this month)

As discussed earlier in this post we have a couple of restrictions against the property, and as we have found out from forum we shouldn't necessarily have to pay, the buyers solicitor only has to inform them of our intent to sell. How can I find out if he has had a response from the OR or the 2nd restriction? Would the solicitor contact me or what?
What we would like to know is: Can we put as much profit from our current house down as deposit on the new place? If we do and then the OR etc comes for their money what happens then? Do they take it and we are then short (and loose property and sale annoying quite a few people as they have paid out for solicitors etc or do they apply for restrictions on the new property?

Thanks in advance

eggbox

jez123cars wrote: »

How can I find out if he has had a response from the OR or the 2nd restriction? Would the solicitor contact me or what?

The buyers Solicitor isn't after, or requires, a response from either party. The only requirement is notification, to the Restrictioners, that a sale is proceeding and then evidence of that notification being forwarded to the Land Registry. The easy way to find out if this has been done is to ask the Solicitor involved?

jez123cars wrote: »

Can we put as much profit from our current house down as deposit on the new place?e

If your intention is not to pay the debt at the time of the sale then the answer has to be yes.

jez123cars wrote: »

If we do and then the OR etc comes for their money what happens then? Do they take it and we are then short (and loose property and sale annoying quite a few people as they have paid out for solicitors etc or do they apply for restrictions on the new property?

There is, unfortunately, no way to answer this as there is no way of knowing what the OR will do when they are notified of the sale?

What I do have explain, though, is that if you are buying a new property then its a possibility that any creditors not paid may attach the debt to the new property if your name is on the deeds?

eggbox

Land Registry Rep

Could I, please, ask what the likelihood is of the Land Registry refusing to allow a transfer when a Form K Restriction has been, correctly, complied with due to the Land Registry, purely, feeling that simple notice was not good enough to overcome a Form K Restriction?

Its an apocryphal being used by certain solicitors as there excuse for them being unwilling to act for clients with a Form K Restriction? Just needed the LR's opinion?

Land_Registry

eggbox wrote: »

Land Registry Rep

Could I, please, ask what the likelihood is of the Land Registry refusing to allow a transfer when a Form K Restriction has been, correctly, complied with due to the Land Registry, purely, feeling that simple notice was not good enough to overcome a Form K Restriction?

Its an apocryphal being used by certain solicitors as there excuse for them being unwilling to act for clients with a Form K Restriction? Just needed the LR's opinion?

eggbox - a little surprised by the Q to be honest as we have covered this many times before but do appreciate that sometimes things need to be asked again/refreshed.

'Feelings' don't come into it in my experience as although we are humans it's really a matter of practice/policy and whilst a degree of consideration is required it is normally very black and white for us as the land register/property is just one part of the wider picture for both the debtor, creditor and court.

The basic mantra when dealing with a Restriction is that it has to be complied with. In the case of a form K restriction that means notifying the creditor (named in the restriction itself) of the sale.

If evidence to that effect is produced and the sale is by both owners for monies then the form K is liable to be overreached and removed automatically when the purchaser registers their Transfer. Section 4 of our PG 76 on Charging Orders explains this

I'm unclear as to how 'feelings' would come into it but presumably there is a reason for the Q? Have we perhaps rejected the referred to practice in a specific example?

eggbox

Land Registry Rep

Sorry to have to bother you with this, but your response was required due to a member of this board being told by a prospective Solicitor that he couldn't act for them as he had "heard" of this happening to another Solicitor.

Your response, therefore, was required to show other board members (and visiting legal professionals) that this story is baloney and the chances of it happening are zero.

But thank you for your time in responding.

Land_Registry

eggbox wrote: »

Land Registry Rep

Sorry to have to bother you with this, but your response was required due to a member of this board being told by a prospective Solicitor that he couldn't act for them as he had "heard" of this happening to another Solicitor.

Your response, therefore, was required to show other board members (and visiting legal professionals) that this story is baloney and the chances of it happening are zero.

But thank you for your time in responding.

eggbox Thanks for clarifying and understood.

Hearsay, word of mouth and general discussion are just three ways that can impact on such matters.

The key, and we refer to this all the time in land registration matters, is that every situation must be treated on merit and the devil is always in the detail. If someone 'hears' of something happening in one scenario it does not follow that it happens in every scenario.

The guidance we provide, and PG 76 is aimed at conveyancers, acting for the creditor, is quite clear. Hence we rely on wording such as 'liable to be overreached' as 'feelings' should not come into it.