Charging Order? The myth

Wookiee501

eggbox said:

Firstly, don't trust any solicitor to sit the right way round on the toilet.

This is my favourite and also the best bit of advice on this thread. 

angelina27balerina

Hi all,
I wonder if anyone can advise or help me find more information on my issue. I am trying to remortgage and have been given an offer from a company different than my current lender. We have exchanged all relevant paperwork and its all in the hands of their solicitor. Today i received an email advising that in order to proceed we need to settle the interim charging order that is against me (joint property, charge is only against me). From all i’ve read online on this topic i understood that we can remortgage without settling the charge as long as we inform them of this. Is this correct or am i mistaken? The exact wording of the B136 (CO) charge (restriction) is: “No disposition of the registered estate, other than a disposition by the proprietor of any registered charge registered before the entry of this restriction, is to be registered without a certificate signed by the applicant for registration or their conveyancer that written notice of the disposition was given to [lenders name and address], being the person with benefit of an interim charging order on the beneficial interest of [my name] made by the [here are the court name and case number.”

Can i  remortgage without paying this charge from the proceedings ?

thanks in advance for all the answers

eggbox

Hi Angelina, unfortunately, you've misunderstood the information on here as it does state this only applies if you are selling your property to a third party. Unless you are remortgaging with your existing lender, then the restriction will have to be settled. This is because mortgage companies insist on being the first charge on the deeds. If the restriction isn't dealt with, then the lender wouldn't be the first charge on the deeds (this is by way of the date the charge was registered.).

Therefore, unless you remortgage with your existing lender (who is already the first charge registered) you will struggle to find a lender willing to ignore the restriction.

davewellie

Hi all 

Think i answered some of my own questions reading the threads and advice on here regarding charging orders and restrictions but looking for clarity before approaching my solicitors and the buyers solicitors to give them guidance !!!

We are currently selling our property me and the wife and have various restrictions and also a voluntary charge dating back years 
The 3 restrictions are related to egg banking and all worded the same dating back all 3 restrictions  to 2007 
RESTRICTION. No disposition of the registered estate is to be registered with out a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to egg banking ltd care of xxxxxx solicitors  being the person with the benefit of an interim charging order on the beneficial interest of   me xxxxxx made by the county court on 26th July 2007  

The egg banking debts are all solely in my name manged to track one of the debts down to shoosmiths which was a loan with egg banking but for the record the 2 credit cards debt are untraceable no-record with Barclay card who took over egg banking 
so unable to get any settlement figures which as somewhat changed my mindset how to tackle the problem  as ive always question the need to settle the debts out of the equity (fueled know by the inability to get settlement figures )

The voluntary charge is going back to a old debt from a house repossession back in 1994 by the then leeds permanent building society in both names a voluntarily charge was registered in September 2007   after Halifax took over the leeds building society 

The Halifax have no records of this but ive tracked the debt to moor croft which seems they bought the debt potentially 

The wording on the charge on the  land registry.... Charge dated 18th September 2007 in favor of bank of Scotland plc (Halifax division )

Two questions really everything i read on the forum and my own gut feeling from the beginning is there is no obligation to settle the debts either prior or out of any equity money 

The buyers solicitors challenged us when we said we would undertake to settle the debts out of the equity and they requested the debts be paid first before progressing any further they have now agreed to settle out of the equity (but struggling to get settlement figures so no draft completion can be written up anyway ) but we are going to challenge them further to the extent only written notice needs to be given especially on the three egg debts 

We run with the presumption the voluntary charge will have to be settled out of the equity (unless any advice guidance can be given that this is not the case )

All advice guidance welcomed especially from land registry and egg box 

Land_Registry

davewellie - the form K restrictions can be handled as directed in the thread. 

The legal charge is quite different in that you will need to settle that and secure its redemption as part of the conveyancing process. Your conveyancer will normally undertake to discharge it with the proceeds of sale, secure its discharge by the lender and provide that to the buyer for submission with their purchase application 

davewellie

Ok message understood and as thought thanks 

Second question there is pending interim charge order applied for for a business debt in my name only (had a personal guarantee on it) a CCj was awarded and progressed  to a interim charging order with them already  applying to turn that into a final charge order nothing showing on land register as yet (the timing not great just come out of the blue )
im hoping this may just show up as a restriction in light of the property been jointly owed 

Would that be normal practice just to be a restriction and if so the same procedure applies in terms of just giving notice 

Also out of curiosity how would that work if the property was sold unaware there was a pending charge order and nothing on the land registry at time of transfer 

Land_Registry

davewellie said:

Ok message understood and as thought thanks 

Second question there is pending interim charge order applied for for a business debt in my name only (had a personal guarantee on it) a CCj was awarded and progressed  to a interim charging order with them already  applying to turn that into a final charge order nothing showing on land register as yet (the timing not great just come out of the blue )
im hoping this may just show up as a restriction in light of the property been jointly owed 

Would that be normal practice just to be a restriction and if so the same procedure applies in terms of just giving notice 

Also out of curiosity how would that work if the property was sold unaware there was a pending charge order and nothing on the land registry at time of transfer 

Have a look at our online guide re charging orders and the algorithms available re sole and joint registered owners 

The land register is based on priority. If you have a buyer and they protect the priority of their purchase (Official search OS1) before someone else, in this case the creditor, applies to protect their own interest then they take free of that interest providing they lodge their application within the priority period of their OS1 

davewellie

update on recent posts thanks fro the advice on here have finally manged to challenge are solicitors and the buyers solicitors to agree to just give written instructions to remove restrictions on land registry  as mentioned in early posts 

eggbox

Hi Land Registry Rep
If you are around could I please ask for your assistance. I have an elderly couple who want to sell their property to their children but it needs to be done quickly. They are, therefore, doing their own conveyancing and all I am requesting is a list of all forms that are MANDATORY for the sale to go through? Obviously TP1, AP1 and ID1 are mandatory, but there is confusion whether a form like TA6 is compulsory to complete? There is no advice being sought here just a factual list of what must be completed as the bare minimum for the sale to go through and be legal. As all parties will be living under the same roof post sale there is no conflict of interest and the buyers fully understand they have no legal comeback should tasks like searches not be sought.  

Land_Registry

eggbox said:

Hi Land Registry Rep
If you are around could I please ask for your assistance. I have an elderly couple who want to sell their property to their children but it needs to be done quickly. They are, therefore, doing their own conveyancing and all I am requesting is a list of all forms that are MANDATORY for the sale to go through? Obviously TP1, AP1 and ID1 are mandatory, but there is confusion whether a form like TA6 is compulsory to complete? There is no advice being sought here just a factual list of what must be completed as the bare minimum for the sale to go through and be legal. As all parties will be living under the same roof post sale there is no conflict of interest and the buyers fully understand they have no legal comeback should tasks like searches not be sought.  

Our online guidance explains what’s required from a registration perspective 
Form TA6 isn’t a HMLR form but one used by conveyancers as part of sale/purchase process I believe. If there’s no sale it may not be required? 

TP1 is used when transferring part of a property eg garden land. You can only transfer the whole if going from 2 to 2+2 for example so TR1 needed