Charging Order? The myth

eggbox

No there isn't any guarantee, however, a willing to act solicitor has normally been persuaded by their counterpart that there is nothing illegal in selling without settling the debt upon sale. 

Hopefully, you will be able to make contact with the creditors but history shows if they ignore a solicitor offering them money they don't sem to be very receptive to anyone? But good luck.

Stesar

Hi 68locky.
I'd recommend changing conveyancer too.
I've sent you a DM with details of conveyancer we used, hopefully that helps.
Also you may want to consider that if you give the restriction holder the "heads up" that your selling they'll start to take an interest in you again. Best to avoid them at all costs in my opinion until it's too late for them to act.

Stesar

Re eggbox's point, our conveyancer "re-educated" the buyers conveyancer as to the correct process.

68locky

Thanks very much to both of you for your advice and the recommendation of a solicitor. I will contact them and see if we can get things moving again.
I will keep you informed in case it helps others.

taxigeoff

Just a thought but if a resrictor is contacted for a settlement figure and they do not reply then can you not apply to court to have the resriction removed? I have no idea of the cost but if the courts have the power to add a restiction then surely they must have the power to remove a restriction.

Land_Registry

taxigeoff said:

Just a thought but if a resrictor is contacted for a settlement figure and they do not reply then can you not apply to court to have the resriction removed? I have no idea of the cost but if the courts have the power to add a restiction then surely they must have the power to remove a restriction.

The courts don’t add a restriction in most cases. The creditor may apply to protect their interest if the debtor for example owns a property. See our online guidance for more details
https://www.gov.uk/government/publications/charging-orders

taxigeoff

Land_Registry said:

taxigeoff said:

Just a thought but if a resrictor is contacted for a settlement figure and they do not reply then can you not apply to court to have the resriction removed? I have no idea of the cost but if the courts have the power to add a restiction then surely they must have the power to remove a restriction.

The courts don’t add a restriction in most cases. The creditor may apply to protect their interest if the debtor for example owns a property. See our online guidance for more details
https://www.gov.uk/government/publications/charging-orders

Thank you for your responce LR. So if you have a restriction on your property and you wish to settle but you can't get a response from the restrictor how are you supposed to proceed?

eggbox

Thank you for your responce LR. So if you have a restriction on your property and you wish to settle but you can't get a response from the restrictor how are you supposed to proceed?

Exactly. That's why the Court recording system for Charging Orders is not fit for purpose. Sadly, because this is Civil Law its not given the same importance a Criminal Law when it comes to filing and recording Court activity. I've now written to the MOJ to see what response is given on the matter?

Land_Registry

taxigeoff said:

Land_Registry said:

taxigeoff said:

Just a thought but if a resrictor is contacted for a settlement figure and they do not reply then can you not apply to court to have the resriction removed? I have no idea of the cost but if the courts have the power to add a restiction then surely they must have the power to remove a restriction.

The courts don’t add a restriction in most cases. The creditor may apply to protect their interest if the debtor for example owns a property. See our online guidance for more details
https://www.gov.uk/government/publications/charging-orders

Thank you for your responce LR. So if you have a restriction on your property and you wish to settle but you can't get a response from the restrictor how are you supposed to proceed?

As eggbox post implies you’d need to go back to court to see if you can get the order dismissed. The order existed so it’s protection remains valid until dismissed by the court/released by the debtor
So it’s all to do with the charging order legislation and impact 

eggbox

Given recent history of Charging Orders being contested regarding being barred under statute of limitations after 12 years*, where it has been ruled CO aren't bound by any limitation and the creditor has the right to pick and choose when to enforce the order (based on the debtors ability to pay); its extremely unlikely a Court would dismiss an order just because the beneficiary couldn't be found. It may well be different, however, if the beneficiary was found but, as we have witnessed on this thread, deny they are owed the debt?

But its only necessary to suffer the above problems with an equitable charging order registered on the deeds as, where only a restriction is registered (form K); there is no obstacle (solicitors excepted) that prevents a sale proceeding in the absence of who is the beneficiary of the CO. 

I may be wrong (and any accountants out there feel free to correct me); but I have a  theory that many debt collection agencies are happy to leave the debt uncollected as it still bolsters the balance sheet making the company look, perhaps, in a  healthier position than it may actually be. You have to remember that £100k of debt can be purchased for as little as £4-10K. But once purchased the DCA is entitled to the full amount so that shows as a £100k asset on the balance sheet. This could explain why so little care is made tracking and monitoring the debts owed? 
 
*Does not apply to Scotland