Charging Order? The myth

harisumo

Hi, I'm not sure if this has been covered before. We have an oversized garden which we find increasingly difficult to manage. We are, therefore, looking into the possibility of obtaining outline planning permission and selling it off as a building plot while prices in this area are very buoyant. We potentially/hopefully could raise enough money to clear our outstanding mortgage. The problem is that I have a Restriction in my name only for an old Northern Rock debt, after years of harassment by various debt collecting agencies who bought it it's gone very quiet and I have no idea who owns it now. I was trying to find out how the sale of part of our property would affect this. Would they need to be notified prior to the sale or after it or not all? The intention would be, all being well, to send whoever owns it now an offer to settle and clear it for once and for all. Thanks

eggbox

Land_Registry wrote: »

eggbox I can understand the frustrations involved here but I think it's worth noting that the SRA has specific roles, which I don't think would cover the points you raised with them. We have a similar scenario.

Yes they do; it's just a matter of getting them to do their job. A solicitor can hardly be seen as upholding the conduct expected of them under the SRA Principles (which they are supposed to adhere to) if they are providing, factually incorrect, information to their clients? The SRA have the teeth to deal with this type of problem the trick, as with most organisations of this kind, is giving them the incentive to bite into the problem?

Land_Registry wrote: »

eggbox If there's a specific complaint then the firm of solicitors will have a procedure to follow and that has to be tackled/exhausted first. I don't think the SRA would look to advise on specific points of law or conveyancing as that's not, on the face of it their role. They look at how individuals and their firms operate and deliver their services and that may not extend to specific advice given in a specific case.

As long as a Solicitor contravenes an SRA Principle then the SRA has no excuse not to intervene. Principle 5, 2.9 states a solicitor has to act with "competence" ergo giving, verifiable, incorrect information to a client isn't competent!

And expecting any organisation to regulate themselves is always a disaster waiting to happen and where the public gets let down the most? As we have witnessed recently with organisations like the police (Hillsborough), financial institutions (mortgage mis-selling) and the NHS (Stafford Hospital).

These incidents happen as the basic human instinct of self protection kicks in and things start to get covered up. Whilst those examples are at the extreme end of the scale; the same behavior still operates on the smaller end of the scale and the public always suffers as a result?

Land_Registry wrote: »

eggbox
I'm not saying that would give you the response you are after but if the firm, through a senior partner for example, review the advice given/actions taken in a specific case you may get a different outcome?

Unfortunately, I have encountered several instances where all members of a firm of Solicitors have the same opinion? This is despite being notified that their opinion is, factually, incorrect?

I also have to witness, on a weekly basis, that to get any meaningful response out of organisations, like the SRA, you first have to take them out of their comfort zone?. Hence, I got a different response from them when they risk coming under the umbrella of being culpable for a potential problem a client may suffer?

LRR; whilst I understand the points you have made you have, unfortunately, defeated your own argument as you are testimony that organisations can provide help if the will is there?

eggbox

harisumo wrote: »

Hi, I'm not sure if this has been covered before. We have an oversized garden which we find increasingly difficult to manage. We are, therefore, looking into the possibility of obtaining outline planning permission and selling it off as a building plot while prices in this area are very buoyant. We potentially/hopefully could raise enough money to clear our outstanding mortgage. The problem is that I have a Restriction in my name only for an old Northern Rock debt, after years of harassment by various debt collecting agencies who bought it it's gone very quiet and I have no idea who owns it now. I was trying to find out how the sale of part of our property would affect this. Would they need to be notified prior to the sale or after it or not all? The intention would be, all being well, to send whoever owns it now an offer to settle and clear it for once and for all. Thanks

LRR may be able to outline how any sale affects the deeds or any notifications that are required by the LR?

Another consideration may be the mortgage lenders permission if you still have a mortgage outstanding?

Land_Registry

eggbox wrote: »

Unfortunately, I have encountered several instances where all members of a firm of Solicitors have the same opinion? This is despite being notified that their opinion is, factually, incorrect? [/B]?

eggbox all understood and appreciated but it's this part that I would be looking to raise with the SRA re a specific firm, process exhausted..........

You will have far more experience of dealing with such firms and the SRA than I on this matter. I based my post largely on how we approach such matters as, like the SRA, we would probably respond to a general point re all in one way but a specific issue re a specific title in another way.

I wasn't challenging your approach or indeed the SRA's but merely thinking out loud as to an alternative that may trigger a different and fuller response? No need to respond as I know you appreciate this and it's not a debate I can really add much to. It's the SRA you need to do that for you.

Land_Registry

eggbox wrote: »

LRR may be able to outline how any sale affects the deeds or any notifications that are required by the LR?

Another consideration may be the mortgage lenders permission if you still have a mortgage outstanding?

The form K restriction would still need to be complied with so the creditor notified. The restriction would be left on your title.
How you manage/settle the debt would not be something we could advise on

harisumo

eggbox wrote: »

LRR may be able to outline how any sale affects the deeds or any notifications that are required by the LR?

Another consideration may be the mortgage lenders permission if you still have a mortgage outstanding?

Thanks for the info, I am trying to negotiate something with the mortgage lender as due to our previous financial hardship they switched us to an interest only mortgage and now the clock is ticking away ... That is the main reason for taking this action or just selling up completely.

The only other major hurdle is trying to find out who owns the debt now, Northern Rock is still on the deeds but it sold to Marlin ages ago and we had a letter from their 'solicitors' Mortimer Clarke, also ages ago, advising that Marlin had closed our file and no longer held the debt. I never heard anything else since.

eggbox

harisumo wrote: »

we had a letter from their 'solicitors' Mortimer Clarke, also ages ago, advising that Marlin had closed our file and no longer held the debt. I never heard anything else since.

If that is the case I would use an RX3 to request the LR cancels the Restriction to see what happens?

harisumo

eggbox wrote: »

If that is the case I would use an RX3 to request the LR cancels the Restriction to see what happens?

Thanks Eggbox, I will try - I assume the form can be downloaded from the Land Registry website, I'll have a look later. Also, did you have any success with the Solicitor you mentioned a while ago, I am trying to find one to deal with any prospective sale. Thanks again.

eggbox

Harisumo

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Lurking_Lawyer

eggbox wrote: »

LRR; whilst I understand the points you have made you have, unfortunately, defeated your own argument as you are testimony that organisations can provide help if the will is there?

With the greatest of respect, and while I appreciate the general point that you're trying to make, you're misunderstanding the nature of the SRA's role.


It does, as its names states, regulate solicitors. It promulgates a Code of Conduct setting out the general principles that all solicitors must adhere to. If a regulated solicitor is reported for an alleged failure to adhere to those principles, it will investigate and if appropriate pursue a complaint to the Solicitors Disciplinary Tribunal.


What it won't do, however, is look in the abstract at general non-specific allegations of failure to comply. If a client makes a complaint that their solicitor has failed to properly advise them, it may give the SRA a basis to investigate and intervene.


The SRA's regulatory role is separate and distinct from the duty of care owed by every solicitor to their client, to carry out their retainer with reasonable skill and care. If a client feels that their solicitor has breached that duty, they should make a formal complaint to the Complaints Handling Partner/Director and invoke the firm's complaints process.


If they're not then happy with the formal response received, they can make a complaint to the Legal Ombudsman. As a last resort, the client could even then pursue a claim alleging professional negligence if they could demonstrate that a breach of duty had caused them direct financial loss.



For what it's worth, the profession is no longer self-regulating. The days of that ended when the Law Society's regulatory function was passed over to the SRA. There's no great love for the SRA within the profession, and it's certainly not the case that the benefit of the doubt gets given to the professional. If anything, the reverse is true.


The headline article in the Law Society Gazette this morning was to do with the Solicitors Disciplinary Tribunal seeking to lower the standard of proof required to uphold a complaint from the current criminal standard - beyond reasonable doubt - to the lesser civil standard - on the balance of probabilities i.e. 51% or better. Believe me - the legal profession is not one which is laxly- or under-regulated.


But, I digress.....