Charging Order? The myth

Land_Registry

bonfire1966 wrote: »

Egg box and land registry. Sorry I don't feel that I am being clear as I don't understand these forms.
I have received from the land registry a B141. The applicant is the creditors solicitor wanting to reinstate the restriction that the land registry removed. The form asks me to either consent or object. I have contacted the land registry and they tell me that the solicitor has applied to get the restriction removal decision reversed and that he has written to them with his case.
In the mean time much to my shock the house has completed. My conveyancing solicitor has told me that I must still deal with this issue. I firstly plan to object to the reversal.
Any thoughts please.

Ok - apologies as I clearly misunderstood the B141 reference and that makes more sense as you received it as a result of their applying to register a restriction.

Your solicitor is right that you need to deal with it as whilst you have completed, the creditor's application presumably has priority

So you need to focus on the restriction applied for and go from there re any objection or, if appropriate, no objection as you know it will be overreached anyway. And the buyer knows that also.

Your solicitor is the one you need to rely on here. But eggbox will presumably be able to offer advice also.

The key will be what happened to the debt in legal terms when your ex sadly passed away. You said you applied to remove a restriction, presumably a form K, and provided lots if evidence. So if they have applied for a form K again presumably that same evidence is the basis of any objection?

bonfire1966

Thanks land registy. Hopefully Egg box will provide further information regarding this issue.

Land_Registry

bonfire1966 wrote: »

Thanks land registy. Hopefully Egg box will provide further information regarding this issue.

I'd suggest posting some details around the restriction(s) removed/applied for as well as what evidence you supplied to support the original removal.

eggbox

Bonfire1966

I think LRR is correct that before any further advice can be given their needs to be an update on how the original Restriction was able to be removed?

Unless you correct me, I'm assuming you simply applied to the Land Registry to remove the Restriction as the person whom it was against had passed away? If that's correct then it needs to understood why the Land Registry agreed to remove the Restriction?

My guess is that they wrote to the creditor but didn't get a response (hence the creditors Solicitor surprise when you notified him?) so agreed to remove the Restriction on the grounds the debtor had passed away?

The good news is that if you've completed I can't see anyway back for the creditor as the original Restriction would be overreached when the sale was made, anyway? So re-instating it wouldn't achieve anything as it would be removed (as overreached) by the sale you've just made anyway?

But, as LRR states above, it does need your Solicitor to help you object to the application so if they are wavering you need to get them up to speed on overreaching very quickly?

bonfire1966

To be honest my conveyancing solicitor was useless and literally wiped their hands of this and made me deal with it myself. I have no money to employ solicitors to help.
I applied to the land registry for the removal of the restriction on the following grounds:
The death of my ex. Death cert. sent
The potential repossession of the house. The bank gave me six months to sell and the restriction was causing problems with selling. Letters from the bank sent
There was not enough money to pay the charge on completion of the house. Original charging documents and offer letter sent.
I think that was pretty much it. ( sorry my paper work is st a friends house)
I going off my memory which is poor. If there's more to add I will later.
I think I've understood "over reaching" but can you just put this term in laymans language for me please.

eggbox

No great surprise about the Solicitor jumping ship it just backs up the self interest opinion.

In simple terms overreaching means that when the sale of a property is made by two or more owners (or trustees), then any beneficial interest in the property (in your case the creditors charging order debt) is transferred from the property and, instead, becomes an interest in the money paid for the property.

I doubt the reasons you gave the LR would have been enough, on their own, to remove the Restriction (but I'm sure LRR will correct me on that if I'm wrong) so the LR must have had another reason which made them decide removal was the correct thing to do?

Finding that out may well be in your interests as if they have written to the creditor and received no objection to removal they shouldn't have a leg to stand on?

And "reversing" the decision to remove the Restriction doesn't make much sense, either, as it would have been removed, through being overreached, anyway by a simple notification to the creditor the house was being sold?

So I would object to the Restriction being "reversed" for the above reason (hopefully LRR may be able to assist with wording on that when you respond?)

Can I ask, as you say you've "completed" if you have received the funds from the sale, yet?

bonfire1966

Hi Eggbox. No funds as yet. Think it will be next tues/weds. That only because I had to pay to get it sooner !
I understand "over reaching" now.
I have spoken with the land registry at length. One went through the case with a friend whose being helping me. They told us that my case when to the highest level of lawers within the LR.
I have no idea if they contacted the creditor. Would it be the solicitor or the creditor they would contact. I am aware through paper work found at the house that the original creditor is also deceased.
Regarding the funds it is my intention to put half in a separate account so should they still have a claim at least I have the beneficial interest that my ex had.

eggbox

If you have anyone you can trust put your funds in a joint account as any application to retrieve the debt can't be taken under a third party debt order on a joint bank account.

If the creditor is deceased do you know who the Solicitor making the application is working on behalf of?

I'd be interested to know LRR view that your case went to the "highest level of lawyers". I'd be surprised if that was the case

The simple matter is that if you get the funds into your account its nigh on impossible for a creditor to get them back if you act "sensibly". The new purchasers also wouldn't have any problems due to the charging order being on the beneficial interest which has now left the building (as Elvis would say?)

So I'd sit tight for a day or too and wait and see if the funds are, actually, paid to you. Once they are then you just act "sensibly" as I've said.

bonfire1966

Egg box.
Thanks very interesting advice. Yes I certainly do have people I trust.
The original debt was for goods provided to my ex. Sadly the creditor allowed my ex to purchase good in good faith. He never got paid the first time nor the second but went onto provide goods on approx 6 occasions, doesn't make good business sence to me!! Any how I beleive his family are now persuimg the debt on his behave.

Land_Registry

A couple if things to note based solely on the details posted. As I mentioned the devil is in the detail and you've already implied the exact details may not have been shared

Applications to cancel restrictions will often be referred to one if our lawyers or a senior officer at the local office. Not quite as grand sounding as posted but still an indication as to how we have to treat such applications. As they are to cancel, and not withdraw, it's an application by someone adversely affected by the restriction so we have to be mindful of the risk in cancelling it.

Secondly you refer to overreaching and the key point re a sale by two ir more people. If you were joint owners and one passed away then you have a sale by a single owner presumably. The order of events since may also impact of course.

If you have completed then the buyer may have priority over their application to register a restriction anyway

And if you have spoken at length with us already then those are the details to focus on from a registration perspective rather than my more general postings which are made without the precise 'detail'