Charging Order? The myth

eggbox

It's what is written into the terms of the Restriction that need to be followed. So if it says the buyer then its the buyer who notifies the LR, buty if it says the creditor then it has to be the creditor who provides notification.

The latter does mean it can hold up a transfer of the property, to new buyers, until the notification is given from the creditor, unfortunately, as the terms of the Restriction won't be met until that happens.

Shirelife99

Hi,
I’m new to these forum discussions but I was hoping someone might be able to help.

I am looking to remortgage my with my partner but I have a charging order against my property before she moved in.
The charging order is with a company that have since gone bankrupt and now sits with a third party company who have acquired their portfolio.
I tried to contact the third party company who were most unhelpful and didn’t really know anything about my charge or indeed have anything on their systems.
They have referred the matter to a solicitor to deal with the charge on their behalf.
This solicitor just so happens to be the same solicitor who was acting on behalf of the original company who went bankrupt.
I might be reading too much into this but it has all started to feel very unprofessional.
I manage to contact the solicitor directly to ask what the situation was with the charge in relation to me and my remortgage.
She was not particularly help and said she would email me some details.
I had to chase the solicitor for days because she had incorrectly take my email address despite having an original email from myself with my address on.
Again I was left feeling a little concerned.
I have tried to do the right thing in clearing the charge with the remortgage By means of raising some funds to pay it off.
Sadly I can’t raise the full amount but offered to pay the maximum I could which was approx 50%.
Without the remortgage I won’t be able to do this and I was wondering if

A. A charging order debt can indeed be sold on to a third party company.
And
B. Can the charging order be transferred on or postponed and added again to my property once I have remortgaged?

My partner and I have no intention of moving from our property for the long term future and I am not trying to avoid paying at some point, I just wish to be able to remortgage to save money and clear debt.

Any advice would be greatly appreciated.

Kind Regards
J

eggbox

Shirelife99 wrote: »

A. A charging order debt can indeed be sold on to a third party company.
And
B. Can the charging order be transferred on or postponed and added again to my property once I have remortgaged?

A. Yes, but the original CCJ has to be transferred by a Court to the new owner and of which you should have been informed of?

B. In simple terms NO as the creditor has no need to give up the priority it has on your assett?

But it may be worthwhile talking to the creditor to see if they would be willing to take a reduced amount to settle the debt now?

DAKOTA45

eggbox wrote: »

It's what is written into the terms of the Restriction that need to be followed. So if it says the buyer then its the buyer who notifies the LR, buty if it says the creditor then it has to be the creditor who provides notification.

The latter does mean it can hold up a transfer of the property, to new buyers, until the notification is given from the creditor, unfortunately, as the terms of the Restriction won't be met until that happens.

I wonder how long they can hold up the completion… would they have a time limit to notify LR once they have been paid.. or could they delay even longer if they felt like it, because they have a grudge, for instance?

eggbox

I think LRR touched on this a while back when he said if the creditor was being unreasonable in withholding notification (eg if the debt is willing to be repaid from the sale of the property) then you might have to take the matter back to Court?

Land_Registry

eggbox wrote: »

I think LRR touched on this a while back when he said if the creditor was being unreasonable in withholding notification (eg if the debt is willing to be repaid from the sale of the property) then you might have to take the matter back to Court?

Correct - there's no strict time limit but the onus would be on the applicant to demonstrate that they had notified them and that they were getting no response.

If I recall D45 you had a modified form K restriction and they are rare as I posted and often only created with the court's permission. So seems highly likely it's the court's decision as to how long a time limit would be and what is unreasonable

DAKOTA45

Many thanks, Eggbox & LRR- We agreed to pay the charge(s) quite a few weeks ago when they were made aware of our impending sale, but as far as I know, they have not notified LR yet.
Regards, D45

bonfire1966

I am back feeling so very confused and asking for more help.
As you know house sold in December. Restriction relating to my deceased ex was removed prior to sale. Creditors solicitor applied to have restriction reinstated and guess what the land registry have put the restriction back on to a house I no longer own!! Title deed has not yet changed to new ower due to paperwork having to be resolved in date order at the land registry. The new owners application has been submitted.
I'm completely lost now. What happens. I don't own the house. I feel completely annoyed with the land registry how they can suddenly say that my reasons for removal are no longer valid when they removed the restriction based on those reasons in the place.
When I spoke to the land registry the objections officer told me that they had made a mistake in removing it. I told her that the creditor was never given an opportunity to object to my application. She seems to think this is where they have gone wrong!!!
I am fuming and have no idea what to do if anything regarding a property that is not mine.
When they deal with the transfer of the house title what will happen??
Surely the land registry should be accountable for this mess!
Any ideas?? Thanks.

Land_Registry

bonfire1966 wrote: »

I am back feeling so very confused and asking for more help.
As you know house sold in December. Restriction relating to my deceased ex was removed prior to sale. Creditors solicitor applied to have restriction reinstated and guess what the land registry have put the restriction back on to a house I no longer own!! Title deed has not yet changed to new ower due to paperwork having to be resolved in date order at the land registry. The new owners application has been submitted.
I'm completely lost now. What happens. I don't own the house. I feel completely annoyed with the land registry how they can suddenly say that my reasons for removal are no longer valid when they removed the restriction based on those reasons in the place.
When I spoke to the land registry the objections officer told me that they had made a mistake in removing it. I told her that the creditor was never given an opportunity to object to my application. She seems to think this is where they have gone wrong!!!
I am fuming and have no idea what to do if anything regarding a property that is not mine.
When they deal with the transfer of the house title what will happen??
Surely the land registry should be accountable for this mess!
Any ideas?? Thanks.

Totally understand your anger and frustration. Unfortunately it seems we have erred in removing the restriction at the time. We are accountable so if we have erred and you have suffered them you may wish to take that further -see our Practice Guide and complaints procedure

Unfortunately mistakes can be made and it seems that we have made two both procedurally re not giving the creditor time to put their case for the restriction to remain and from a registration angle if not considering both sides of the issue.

Ultimately it's a legal issue as to whether the creditor' interest has come to an end re the property. Both sides will have a view on that and we have to consider them both. By not contacting the creditor at the time we failed to do that.

I imagine that the creditor has put a case that now needs to be considered by one of our lawyers. That will lead to communication with both sides in the argument and hopefully a quick decision. That will very much depend on the legal arguments made though so timescales can be stretched.

Best case scenario is that we reject the creditor' position, remove the restriction again and register the purchase.

Next steps for you seem to be to wait for our communication and then seek legal advice as appropriate. You may prefer to do that now of course and it will help to know on what grounds the creditor has asked for the restriction to remain.

We will deal with the applications in order so if the restriction remains and it prevents the Transfer being registered then the ball will be in the buyer's court and they will look to your solicitor for assistance/action.

If the restriction is removed then the Transfer is considered next and presumably registered if everything else is in order.

The key from our perspective is that we have to consider both sides. So for example if the creditor had a case and both the restriction had been removed and the Transfer registered then we would have been open to them taking action against us well.

It's remained an issue for you as the creditor raised it sooner rather than later as a result.

I am sure we will write to you or the solicitor who submitted the RX3 to explain the position/next steps as appropriate. So very much legal advice you need at this stage

eggbox

Land Registry Rep & Bonfire 1966

If the Restriction registered on the property is only a standard Form K, even if it has been re-instated is it still not the case that the buyer still only has to notify the creditor of the house being sold (and also notify the LR accordingly) to satisfy the terms of the Restriction to allow the transfer of the property to proceed?

If so, this seems the logical thing for Bonfire to now point out to the new Buyer to get the LR out the hole its, unfortunately, dug itself into?