Charging Order? The myth

GreatHawoth

Title number WYK187554
(03.04.2003) CAUTION in favour of YORKSHIRE BANK PUBLIC LIMITED COMPANY (Co. Regn. No. 117413) of 20 Merrion Way, Leeds, LS2 8NZ, and care of Addleshaw Booth & Co (reference HLB/26074-10924), Sovereign House, Sovereign Street, Leeds LS1 1HQ
Hi everyone, new to the forum. I've read through previous posts and I understand how restrictions work. But I am a bit perplex by the above caution. We have a jointly owned property(My partner has the majority share) the caution in favour of the Yorkshire bank is from a secured business loan in my name only(the business failed in 2002). If we now sell our property  is this treated like a restriction or does it need to be repaid before sale goes through.
Thanks

eggbox

GreatHawoth
I believe Restrictions are what replaced Cautions in the Land Regitry Act 2003 (which came into effect after the dates you give), however, Land Registry Rep should be able to clarify if they can be overreached in the same way Form K Restrictions can be?

GreatHawoth

Thanks eggbox I shall await their reply...Also searching Companies House with the registered number for the Yorkshire Bank PLC I noticed that it became a dormant company in 2006.  Am I right in thinking that the caution should have been updated?  

Land_Registry

GreatHawoth - as eggbox posts restrictions (and Notices) largely replaced cautions under the 2003 Act. However as you appreciate existing cautions remained in play and were once used to protect interests such as charging orders.
It will not be treated like a restriction so the process highlighted in this thread would not apply as a caution would need to be withdrawn by the cautioner or cancelled by you/your conveyancer. 
On that basis a purchaser will ask you to ensure that the caution is withdrawn by the creditor or cancelled by you/your conveyancer. Overreaching has not occurred after all as the sale/transfer has not taken place
As the order and debt is still in place the creditor is unlikely to withdraw it. That leaves the option to try and cancel and such an application would require us to notify the cautioner and give them time to object. If they consented or failed to respond then the caution should be removed. However if they objected then we would have to consider the grounds of any objection. 

Yorkshire Bank Plc are now Clydesdale Bank Plc. Cautions are rarely updated re such changes

GreatHawoth

Land_Registry Thanks for your reply, If I applied for cancellation and they objected, would I be informed of their grounds of objection?

GreatHawoth

What you say is a little disappointing, I was beginning to believe that a charging order/caution couldn't be placed on a jointly owned property if the debt was due to one person. My partner is desperate to move, as where I am reluctant to as I will lose my share, making for a much bigger mortgage to move. 

eggbox

GreatHawoth
If the debt was, originally, for a "secured" loan then there can't really be too many complaints as you would have received lower interest rates. The large injustice for many people on this thread is that they've had an "unsecured" loan turned into a "secured" debt whilst having to pay sky high interest rates because the loan was unsecured. That's just wrong.

However, I'd take LRR's advice and apply to have the caution removed. As the bank has changed hands there is a good chance they won't know what the debt is for?

Land_Registry

This thread goes to some length to explain how a charging order against one of joint owners can be protected on the register. 
Under the 2003 Act that is as a form K restriction but as the thread explains that can be overreached in a certain set of circumstances and automatically cancelled.
Under the previous 1925 Act such interests could be protected by way of a caution so handling them was, and still is, not as straightforward.
If they objected and we took the view that it was valid then yes you would be notified of the grounds. You could then challenge their position. I should stress that the key issue here is whether the debt still exists and what the legal position is, including when and how you would have to settle it. As a result I would recommend you seek legal advice to establish how the law now views that debt and what may happen next depending on what steps you, and then the creditor, may take.

harisumo

I have a restriction 5 years old in favour of a company called Arrow Global for a debt purchased a few years prior to that for an old Egg loan. After they did the Northampton court thing quite hastily they obtained the restriction quite quickly afterwards. I had little or no contact from them for all these years until a few weeks ago when they wrote threatening me with recovery action. No further contact until today when I have received a warrant of control from the court telling me that if I don't pay the 7000 owed by 27 march they will be sending bailiffs to recover the debt. I am completely panicked and numb really not sure what to do next. Any advice appreciated. 

eggbox

Hi Harisumo
I know its easier said than done but don't panic too much for the following reasons.
Firstly, I'm fairly sure this is a scare tactic to try and get you to pay up some money (and from your reaction it sounds like the scare bit has worked?) This is because a creditor seeking a Warrant of Control has only instructed Court Bailiffs to attend a debtors property to request payment for an outstanding debt. I say "only Court Baliffs" as its fairly well known Court Baliffs aren't very effective at collecting debts as they only have, very weak, powers of  collecting consumer debts. They are, therefore,  fairly easy to deal with as they have no powers of entry. Even the Government advises:
Dealing with bailiffs
You usually do not have to open your door to a bailiff or let them in.
Bailiffs cannot enter your home:

• by force, for example by pushing past you
• if only children under 16 or vulnerable people (with disabilities, for example) are present
• between 9pm and 6am
• through anything except the door

So, basically, just don't answer the door to them and you'll find they go away after the 2nd time. If you're unlucky enough to encounter them simply tell them you don't own anything in the house. Court Baliffs aren't like private Baliffs and will usually accept any old rubbish the debtor tells them. But it might be worth contacting the company concerned to explain you aren't in a position to pay but they have security by way of a Charging Order. This is on the off chance that, after such a period of time having passed; they don't realise they have a CO for the debt? But for now, don't worry as a Warrant for Control isn't a creditor being serious about Baliffs.