Charging Order? The myth

Simonu1965

Egg box - can you please confirm that we do not need to worry about selling.

Our issue is NR has a restriction against the property that was joint owned by my wife and her ex husband, but in their divorce agreement he agreed that he does not have any financial interest in the property.
We are now trying to sell and our solicitor has informed Eversheds (NR’s solicitor) that we intend to sell. She has been told that we cannot sell until the restriction has been lifted, but cannot get any details on who she needs to approach to get this lifted.
What can you advise that we can do? We have an interested party in the property and if we cannot get this lifted quickly we will lose the sale.
Simon

jpirate

Whilst you wait for egg box....

As far as I understand it, if there is a restriction you sell with that restriction as it will automatically fall once sold. The solicitors etc just all need to be aware of the exact process and letter of the law so they understand that ... But egg box will clarify

Land_Registry

Simonu1965 wrote: »

Egg box - can you please confirm that we do not need to worry about selling.

Our issue is NR has a restriction against the property that was joint owned by my wife and her ex husband, but in their divorce agreement he agreed that he does not have any financial interest in the property.
We are now trying to sell and our solicitor has informed Eversheds (NR’s solicitor) that we intend to sell. She has been told that we cannot sell until the restriction has been lifted, but cannot get any details on who she needs to approach to get this lifted.
What can you advise that we can do? We have an interested party in the property and if we cannot get this lifted quickly we will lose the sale.
Simon

Simon - eggbox is the best to answer this but can you confirm that it is a form K restriction?

That is crucial to the thread and whilst they may have agreed x, y or z re their beneficial interests the bottom line is the form K is there.
I doubt, but don't know, that such agreements won't change the charging order's position unless a court takes a differing view and dismisses it

If it is a form K and you have a buyer then the thread explains what happens next.

helpappreciated

helpappreciated wrote: »

We sucessfully sold our house and bought a much smaller one four years ago, without paying creditors. We had restrictions in my name, but the house was jointly owned, as is our new one. Now Shoosmiths acting for Cabot are applying for a charging order (restriction} on this house, based on the original Court order. Is there anything we could/should do, or should we just sit tight and live with it.
Any thoughts would be very welcome - thank you

As pensioners we are stuggling with thoughts of the future

eggbox

Simonu1965 wrote: »

Our issue is NR has a restriction against the property that was joint owned by my wife and her ex husband, but in their divorce agreement he agreed that he does not have any financial interest in the property.
We are now trying to sell and our solicitor has informed Eversheds (NR’s solicitor) that we intend to sell. She has been told that we cannot sell until the restriction has been lifted, but cannot get any details on who she needs to approach to get this lifted.
What can you advise that we can do?

As LRR explains; your situation depends on whether the Restriction is a standard form K? Can you confrm it is?

Assuming it is; if NR obtained the Restriction prior to the divorce settlement, as I suspect happened, then it will be valid? Your solicitor, unfortunately, is also doing NR's work for them as she had no obligation to contact Evershed's (and if she's daft enough to listen to Evershed's I would seriously consider finding a new solicitor?)

So explain to your solicitor that the wording on a Form K explains it is the buyer or his representative that is required to notify the creditor of the sale. There is also no time limit placed on when this happens so the creditor can be informed at the last minute of the sale.

Once the buyer certifies, to the LR, that they have notified the creditor; then the LR is not prevented from transfering the ownership details. The Restriction will fall away upon completion as it will be over-reached (LR Practice Guide 76 Section 4 Para 3).

That's the good news; the bad news is that your buyers solicitor will, most likely, be as ignorant of this information as your solicitor appears to be. You will also hit resistance if they are using a mortgage to buy the property so, for the moment, forget Evershed's and your solicitor and see how clued up your buyers solicitor is?

eggbox

helpappreciated wrote: »

We sucessfully sold our house and bought a much smaller one four years ago, without paying creditors. We had restrictions in my name, but the house was jointly owned, as is our new one. Now Shoosmiths acting for Cabot are applying for a charging order (restriction} on this house, based on the original Court order. Is there anything we could/should do, or should we just sit tight and live with it.
Any thoughts would be very welcome - thank you

If it's your only property then you can probably just sit tight and live with it as you've managed to sell previously? But if the CO isn't yet registered you may want to consider your share of ownership split? This is to ensure any Charge can only be placed on a very small part of the equity in the property?

But this is something you need to consider taking seriously as if you sign over the majority of your share to your partner, and things go wrong for you both, then you would be giving away your share of the equity legally?

Your experience is also a lesson that if you purchase another asset, after selling up without paying the creditor; then they will come a knocking again on any new asset? So careful planning is needed in the event you do manage to sell up without paying the creditor?

jpirate

Just a quick question, in days what is at the last minute?

eggbox

jpirate wrote: »

Just a quick question, in days what is at the last minute?

There is no time limit given in a Form K Restriction. A Form K states that written notification must have been given to the creditor, and the buyer certifies as given, before the LR can maker a transfer of a title.

Therefore, whatever the shortest time is that achieve these requirements will still still comply be that a matter of weeks, days, hours, minutes or seconds?

eggbox

For anyone wanting to sell their property but is suffering from solicitors not clued up on Form K Restrictions; you can point them HERE

It's written by a firm of Barristers that is explaining to creditors how easy it is for a debtor to sell a property with a Form K Restriction.

JayN

eggbox wrote: »

It's written by a firm of Barristers that is explaining to creditors how easy it is for a debtor to sell a property with a Form K Restriction.

Hi all,

I posted a few months ago and we sought legal advice and we still haven't got anywhere. I am exhausted by it all. I have spoken to 2 solicitors and they said we would need consent to have the restriction removed by the second creditor. Mortgage provider has first charge. Then another one said its a restriction K and only need to serve notice. I don't know who to believe!

I am on the gov website and I am confused whether the restrictions on my property are N or K.

Government website - Practice guide 19: notices, restrictions and the protection of third-party interests in the register. Updated 13 February.

LR - would it be possible to have a look at the title as the restrictions are duplicated and it appears to be a merge of the two types?

Title is MX76347.

If not, don't worry - I will try and sort it out.

Kind regards

Jay