Charging Order? The myth

Land_Registry

Tiatodd said:

Husband has just passed away and the property was in his name.  I have a restriction on the property but it does not state shares.  Our solicitor did try to put one on that stated The first 17% of a net sale was mine ( due to me putting down the deposit) and the rest was 50/50 but the land registry rejected this. There are 2 other restrictions and a charging order on the property. I would like to take over the mortgage but cannot afford to do this and pay off the debts.  Is there a way of being able to discharge the debts at all.

I’m sorry to read of your recent loss. Clearly a lot to sort out and consider as a result and hope the following helps in some way, even if only to expand on what you already know. 

We don’t register the specific shares as they relate to the beneficial ownerships rather than the legal one, which was in your late husband’s sole name. I imagine you either have a form A restriction or one that specifically names you. I assume the latter as you state ‘I have a restriction’ so you need to seek legal advice as to what can happen next re the legal ownership and how your restriction affects. 

You then refer to two other restrictions so I assume the6 relate to debts but what’s the wording? 

The charging order is presumably noted in the Charges Register and if so eggbox is probably best placed to advise on that re death of debtor and what happens next re the order/debt 
Taking over the mortgage may not be an option unless you become the legal owner. Probate will be needed and the executor then deals with the deceased’s estate. That would include dealing with any debts/creditors I suspect so worth getting some wider advice on wills, inheritance and probate. 

The lender is the best option to discuss taking over the mortgage although I’d probably expect them to refer to probate and the change of legal ownership as mentioned. Presumably the mortgage hasn’t been paid off as a result of the death through insurance cover? 

Crucially you haven’t said what’s happening re the legal ownership.

The extra details will help others comment as well. 

Tiatodd

  (26.03.2003) RESTRICTION: Except under an order of the registrar no

       disposition by the proprietor of the land or by the proprietor of any

       registered charge is to be registered without the consent of. Wife

5      (14.01.2010) RESTRICTION: 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

       Alliance & Leicester Personal Finance Limited (Co. Regn. No. 02486611)

       at care of Shoosmiths, The Lakes, Northampton NN4 7SH, being the person

       with the benefit of a final charging order on the beneficial interest

       of ..........

6      (25.06.2012) RESTRICTION: 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

       TradePro Card Services Limited (Co.Regn.No. 4695476) at Fleming House,

       Seebeck Place, Knowlhill, Milton Keynes MK5 8FR, being the person with

       the benefit of a final charging order on the beneficial interest of...........

These are the restrictions and this is the charging order

27.07.2009) BENEFICIARY: JEWSON LIMITED trading as J & G Archibalds

       (Co. Regn. No. 00348407) care of The Wilkes Partnership of 41 Church

       Street, Birmingham, B3 2RT and DX13047, Birmingham.

Sorry but I am unsure what you mean as to the legal ownership.  

I believe the restriction in favour of Trade pro, that Trade pro have dissolved as a company.

Land_Registry

Many thanks for sharing. 

So the first one is a simple restriction in your favour so it restricts the registered owner from selling, leasing and mortgaging for example. As he has sadly past away it still impacts as if his executor tried to do the same he/she would also need your consent. 

The second and third restrictions are form K restrictions referred to at length in this thread 
They are added to protect charging orders but not when there is a sole registered owner. I assume there were joint owners at the time the orders were made. 

The Charges Register entry is in two parts. You’ve quoted the second part only re the creditor (beneficiary) but the first part refers to a Unilateral Notice I assume 
When dealing with trusts, shares, wills etc you are dealing with the beneficial ownership. That type of ownership is primarily linked to the value of the property/equity as in £s and pence. That can be split and should have been explained to you by whoever advised you at the time your restriction was applied for. 

The legal ownership, which is what we register, relates to the actual property, the bricks, the mortar, the land etc. They can’t be realistically split so the legal ownership is always dealt with as a whole. 

That will effect whether you can take over the mortgage. So too will who remains as a registered owner and/or if probate is involved 

Tiatodd

It was not joint owners at the time of the restrictions as it was always in husbands name as I was on another mortgage.  If I was able to prove my beneficial interest ( which I believe the original restriction that the solicitor tried to register shows) can I argue that after my 17% and then 50% are taken out there is not enough money to cover these costs from his share after the funeral, legal costs etc. Therefore this would make his estate insolvent.

Land_Registry

Tiatodd said:

It was not joint owners at the time of the restrictions as it was always in husbands name as I was on another mortgage.  If I was able to prove my beneficial interest ( which I believe the original restriction that the solicitor tried to register shows) can I argue that after my 17% and then 50% are taken out there is not enough money to cover these costs from his share after the funeral, legal costs etc. Therefore this would make his estate insolvent.

Not something we can advise you on I’m afraid but hopefully others may be able to assist 

sourcrates

Tiatodd said:

It was not joint owners at the time of the restrictions as it was always in husbands name as I was on another mortgage.  If I was able to prove my beneficial interest ( which I believe the original restriction that the solicitor tried to register shows) can I argue that after my 17% and then 50% are taken out there is not enough money to cover these costs from his share after the funeral, legal costs etc. Therefore this would make his estate insolvent.

You would need advice from a wills and probate solicitor on this, Legal Beagles may be a starting point for you, other than that it will start to cost you money.

eggbox

Tiatodd

Could you advise what the deposit was you provided for the property, what the house is worth now (approx) and what the outstanding mortgage left on the property is and if you are still paying the mortgage? Also, if you know whether the Jewson Charging Order is attracting interest?
These factors may help assess what your best options are?

Gulliablenskint

Can someone please advise how you would know if a restriction is still charging interest?

Tiatodd

Hi Eggbox. The deposit was approx £17000, house worth approx £200,000 with £125,000 remaining on the mortgage. I don’t believe that there is interest accruing on the jewsons charge. Yes I am still paying the mortgage.

eggbox

Gulliablenskint said:

Can someone please advise how you would know if a restriction is still charging interest?

It will have been noted on the Charging Order made by the Court. Now whether you can get a copy of that order is a whole different ballgame?