Charging Order? The myth

eggbox

Please do let us know what she says as solicitors are notoriously stubborn to the point of stupidity on this. I've also recently helped some friends complete a sale under this method and everything is now complete with new owners registered and restriction removed from the deeds. It was a cash sale which helped but if she needs any proof just shout, okay.

Pinkflora1974

She has come back this afternoon saying the case has been passed to Dryden Fairfax who have in turn said it is with bank of Scotland collection and recoveries? No idea why this has been passed to all these people as we have never been notified. Bank of Scotland have asked for the request in writing which our solicitor has done! She’s probably caused us more hassle doing this!! 

eggbox

You need to approach this as you see fit? However, I would be questioning her on why she has contacted the companies concerned when there is no, legal, requirement for her to do so? The Restriction states that it is the buyer (or their conveyancer) that is required to contact the creditor, not the seller or the sellers conveyancer. She is, therefore, jeopardising your sale and you will be reporting her to the SRA (Solicitors Regulation Authority) if she persists in not carrying out your instructions.

As I constantly remind people on this thread, the solicitor is your servant in these matters and not your master as YOU are paying them to act on YOUR behalf. If they do not want to acceot your business on the basis as you have instructed; then they have the right to withdraw the service offered. They do not have the right to oppose your instructions unless they can provide a legal reason for not carrying out your instructions.

I would, therefore, seriously consider explaining to your solicitor that you will be seeking another conveyancer should she not carry out your instructions as you have notified. Be warned here; most solicitors, arrogantly, treat members of the public as uninformed  dummies (and I'm saying that as the father of a solicitor). Therefore, if you don't take the hard line with your solicitor now she will continue to treat you the same way and expect you to be grateful when she loses you, I'm presuming, several thousands of pounds in the process.

Pinkflora1974

Hi eggbox, thanks again for all your help. I’ll have a think tonight and speak to her tomorrow. She has given me a number to call at bank of Scotland (think rbs) so I am going to get my husband to try tomorrow. 

eggbox

As I said, you need to do what you think is best for your situation.  However, by contacting the creditor you are accepting what your solicitor has told you which, so far, has only seen the sale being held up? Can I ask if you have discussed the situation with the buyer as they are being help up, too?

Pinkflora1974

No we haven’t. I didn’t really think about that. We have letters here though saying they have sold the debt to link financial who as I said have never assigned the court order and even offered us settlements so I was only thinking that bank of Scotland would be the ones to get the restriction removed I guess? I can’t see how they can say we owe them money?

eggbox

Sorry, I might have misread the situation here as I was assuming you wanted to achieve what this thread is explaing in being able to sell your property without settling the CO  upon sale? However, if that's not correct and you're happy to settle the debt then that's fine, however, you had better prepare yourself for a long wait as nobody seems to want to claim the debt ? This usually happens when the paperwork for the debt can't be found/has gone missing and the Court is of no help as they don't keep records. If you read this thread you will see similar cases where the sale is prevented because of this exact same scenario as the creditor or debt amount can't be determined. 

This is why your buyer may be of assistance here as if they are very keen to proceed with the sale then threy will probably be receptive to the alternative method of removing the restriction as I explained in my earlier post. So I'd sound them out before contacting any creditors as the method explained will certainly ensure the sale can proceed immediately without any hold ups. 

Robs123

Hi,
This thread is brilliant, thank you for all the time you've put into it.  I am about to market my property which is subject to a standard Form K restriction in my ex-husband's name.  (I've checked the wording).
I have asked a few solicitors for quotes, I'm still waiting for a few responses but one who responded immediately stated that the restriction would need to be paid and removed prior to completion, when i referred to her to the practice guidance quoted here, the solicitor stated that "Sadly our very recent experience has proven that the giving of notice can result in the debt being pursued and so we are not prepared to give the assurance that written notice will be sufficient to remove the restriction".
So my question is, if the debt is then pursued after we notify the creditor - what action could they take, and now would this potentially affect my sale?
Many thanks

eggbox

As I've explained many times before on this thread; when a solicitor undertakes work for a client they work on the principle of their interests coming 1st and their clients interests coming 3rd. 2nd place going to any one who could jeopardise the position of the solicitors 1st place on the grid (in this case its the creditor of the Charging Order debt)  The solicitors response you received being a perfect example of this and they should, therefore, be avoided.

The undertaking is their "word", to the buyers solicitor, that the restriction will be removed from the deeds when the buyers details are registered. Its a serious matter for a solicitor and one they would be in trouble for if not honoured. Unfortunately, its been proven by posters on this thread, in their dealings with conveyancing solicitors, that most solicitors knowledge on this matter is, shall we say, sketchy (read non existent.) And they still believe they can only give an undertaking if the restriction is removed prior to sale by the settlement of the debt beforehand (whereby, the creditor has agreed to remove the debt as its been paid.)

But this is not the case anymore as the Land Registry Practice Guide 76 clearly states the restriction "will" automatically be removed if the restriction has been complied with and the sale is from joint owners for valuable consideration. Therefore, the solicitors can now give an undertaking, that the restriction will be removed from the deeds, on the basis the Land Registry set out. So whether a creditor claims their debt or not is immaterial.

There is also growing evidence that, due to lock down, many creditors are holding up sales as they are working away from the office and, either, don't reply or cannot acknowledge the debt or debt amount? This is grossly unfair on sellers who may be selling up to alleviate the financial pressure covid-19 has caused on some people. I will also add, from my personal dealing with the last people I helped sell as this thread advocates; that the solicitors dealing were the debt in place (Restons) are, notoriously, one of the most savage debt collectors out there. They were notified of the sae in the middle of last year and, to date, they have not enquired about the sale to, either, buyer or seller (and this was for a debt well into 5 digits)? 

But the simplest way around this is to ensure the creditor is given the least amount of time to react. Whilst a Form K Restriction states the creditor must be informed the property is being sold (along with the Land Registry also being notified of that task being carried our); it does not set a time period when this notification has to be given. Notification can, therefore, be given when all of the conveyancing work has been carried out and, by which time, the property sale is done and dusted.

So sellers solicitors need to be pushed on this fact and made to realise they are not doing their upmost to retain their clients funds. Remember, this thread was designed to help desperate people losing thousands of pounds to greedy and unscrupulous lenders who had used the Law to convert their "unsecured" loan (which attracted high interest rates as unsecured) into a secured debt on the debtor’s property. So, the matter needs some re-dress and this is a way to do it.

Robs123

Brilliant, thank you for your help.  a couple of the other solicitors have now responded to my quote request.  So i'm hoping to find one who understands what it is that I want to achieve.