Charging Order? The myth

eggbox

bluegeejay
There will be many solicitors and conveyancers experienced in Form K restrictions; the difficulty is getting them (and the buyers solicitor) to carry out your wishes upon sale? But don't give up as it can (and has) been done. 

Bigfishnet

eggbox said:

bluegeejay
There will be many solicitors and conveyancers experienced in Form K restrictions; the difficulty is getting them (and the buyers solicitor) to carry out your wishes upon sale? But don't give up as it can (and has) been done. 

I can second this I've had to fight with my own Solicitor to actually agree to my wishes as their attitude was "no it can't complete unless they are paid off" and "if you want to pursue  this then you are on your own"
Our Sale fell through a couple of times due to the general Covid situation however my current buyers Solicitor in their Enquiry letter said this: 
9. We note that there are two restrictions on the title to protect interim charging orders in favour of

****** and ********* . Please confirm that you have served written

notice of the intended sale on each of the beneficiaries in accordance with the terms of the

restrictions, in order that we may provide the required certificates to the Land Registry with our

AP1.
I could not believe this ....they understand EXACTLY what is required and its my buyers Solicitor as well so no-one has to convince them. 
Staggeringly it was MY Solicitors who were the problem now as they  refused to act upon my instructions here is their response:

.........Please note with regards to your reply to enquiry number 9: In this case, the completion cannot take place unless you have settled the figures from ******** and ******* and they have removed their restrictions from the land registry before completion. UNLESS you would like us to pay them from the sale proceeds on completion and we will deal with the land registry requisitions. 

It is very important to understand that under no circumstances the completion will happen unless these two restrictions are paid “on completion with the sale proceeds” or “before completion and the land registry removing these restrictions before completion takes place”. 

We have had many back and forth emails on this issue. I can only advise you that there are no other options other than the two options I have stated above. Please kindly confirm which of the two options you are proceeding with............. "

At this point I became a little angry and simply wrote again to say you are wrong , the LR says you are wrong (quoting the Section 76 para 4 section)  and that I do not accept the choice you have given me.
I waited for a response which I expected would be them dis-instructing themselves or telling me I was on my own in this matter at which point I was going to go down the withholding the settlement amounts until after completion etc...(we had luckily got both settlement figures in the end)
I'm glad I waited those few days because today lo and behold I get an email saying 
"....I have had a 20 minutes telephone conversation with the buyer solicitors and fortunately they have agreed for us to only give notice to the two beneficiaries of the title, namely *********** and ************* for this sale...."
I suppose that this is as close as I am going to get to an acknowledgement that we, the great unwashed,  were right all along 
If its any consolation the buyers Solicitors are Shoosmiths who seem to understand the whole process and are probably a good bet to use if you are in this situation (at least you don't have to fight them to understand)
I hope this gives some of you some encouragement that actually  we are correct but honestly it really can be a struggle sometimes 
Thanks to Eggbox and LRR for all their help in this matter without them and all their contributions I would have given up a long time ago 

  
  

eggbox

Well done Bigfishnet and it shows persistence can pay.
If a solicitor says they won't act on your instructions because they don't want to there will be little you can do? But sellers shouldn't let solicitors get away with saying it can't be done as its misleading. So make sure, as Bigfishnet has done, you arm yourself with the facts before approaching solicitors as they will try to tell you it can't be done despite the Land Registry Practice Guides explaining otherwise..

bluegeejay

Thanks for your replies and so glad your hardwork has paid off, congratulations Bigfishnet. 

We have had our house valued and will be putting it up for sale in the very near future.

TableLegs4

Hello, 
Just wanted to ask if someone could PM me the details of a solicitor that they can recommend, which are clued up and will help with someone in the situation described on the first page. I'm about to put my house on the market and i have the CO against my name, but the house is owned by both the ex-wife and myself. 
The Final CO is from NR, but given is was an unsecured loan and only in my name, it seems that only a restriction has been put in place, in addition to the restriction from the mortgage company. 
I've managed to obtain the official copy of the register of title, it's only two pages. 

I've spoken to one high street solicitor, and they politely told me that they are not getting involved ("sorry, but the legal expert we would use isn't taking on any more work at the moment"), and i've also spoken to a partner at another solicitor that was adamant that a payment needed to be made, before the sale can complete. 
Thank you in advance

Stesar

Hi,
I'm in the final stages of selling my house which has a restriction on the property from 2014. I've found a solicitor who understands the process, is confident it is very straightforward and will inform the creditor at the last minute, so that they can't prevent the sale. However, I am aware that the creditor will still chase the debt, so have budgeted to pay this off.

The interim order is for c£20k (which I have a budget for), however the final order from the court is for c£2k because it looks like a digit has been missed off the amount. I've only just realised this and don't have any paperwork in relation to it being queried by the creditor. So, my question is, are they only able to chase me for the £2k, or would they be entitled to the £20k amount? Hopefully it's the latter!! 

Thanks

twoticky

Bigfishnet said:

I waited for a response which I expected would be them dis-instructing themselves or telling me I was on my own in this matter at which point I was going to go down the withholding the settlement amounts until after completion etc...(we had luckily got both settlement figures in the end)

  
  

Hi Bigfishnet,
I will be in a similar position in the next year, I wondered what percentage was the settlement figures of the original debt?  I am thinking I might try and settle before a sale.  Any info will be greatly appreciated.

twoticky

Hi All

I wonder if you can give me some advice.  The mortgage term on my house is coming to an end in the next couple of years on an interest only mortgage.  The house was bought with my ex and in both of our names.  I have several restrictions on the property for my debt only.  I want to remortgage in my own name on a repayment mortgage. Is it best to try and settle now or when I remortage?
Thanks

Varadero94

Hi All,

Hoping you can help - I've read through several pages of this thread but my head is spinning.

I am looking to sell my shared ownership house, I own a 50% share which has a mortgage, second mortgage and a Charging Order (Interim according to the land registry report). The statement of affairs on my property is;
Estimated value £108k (values are based on this sell price)
Housing Association 50% share - £54k
Mortgage Balance (Registered 2014) - £44k
Second Mortgage Balance (Registered 2016) - £9k
Charging Order (Registered 2018) - £5k

I am looking to sell my house to pay off my secondary mortgage, and move into rented accommodation (Family owned) as a larger premises will be better for my family now plus will reduce my outgoings. There is enough equity in the house to settle the Second Mortgage, but not the Charging Order.

The charging order was applied in Oct 2018 following a failed loan in which I was guarantor for, and is tied into a CCJ which I am currently repaying at an agreed £150 a month, and in which I have been consistent with my repayments.
My query is, this charging order was applied even though there was no equity in the house at the time of issue, and therefore should I be able to sell without having to repay this on the same pretence?
Also, am I best contacting the court to obtain a copy of the document to find if it is a final order or a Interim order? I had discussed this with my creditor, but they were uncertain on any of the details.

I am yet to contact a solicitor regarding this as wanted a better understanding of what I am dealing with.

Extract of register below:

(19.10.2018) UNILATERAL NOTICE in respect of an equitable charge

created by an interim chargeing order dated XX October 2018 in the

County Court Money Claims Centre under court reference XXXXXX

Thanks in Advance, and apologies if this is not posted in the correct forum.

Varadero94.

eggbox

twoticky said:

Hi All

I wonder if you can give me some advice.  The mortgage term on my house is coming to an end in the next couple of years on an interest only mortgage.  The house was bought with my ex and in both of our names.  I have several restrictions on the property for my debt only.  I want to remortgage in my own name on a repayment mortgage. Is it best to try and settle now or when I remortage?
Thanks

The problem is you will only be able to remortgage with your existing lender if you don't settle the debts? This is because they are already the first charge on your deeds. Any new lender will want the restrictions removed to enable them to be the first charge holder on the deeds and they won't be if the restrictions aren't removed?. So I'd talk to your existing lender first to see if they can accomodate what you want, otherwise, you will have to settle the debts, either, beforehand or as partof the new remortgage?