Charging Order? The myth

eggbox

Dilim
I think Land Registry Rep may be needed for this one but to get the ball rolling; it would help to clarify a few things to help understand what the problem is as it looks as though all you are trying to do is transfer your ex's share of the equity to yourself? If that's not correct please let us know?

The restrictions on the property are regarding Charging Orders that were granted to creditors of your ex and they only have claim on his share of the equity. They are unlikely to agree to removal or cancellation of the restrictions unless the debts are paid as transferring equity doesn't remove the restrictions. So, is it a case you may be overthinking or worrying a bit too much about what might happen? But if you can explain a bit more concisely what your aim is and what's stopping you achieving it at the moment it should help?

Dilim

Thank you eggbox

It is a Transfer of Equity issue and you’ve helped me crystallize where I feel I am at.

 I have a preferred plan and a Plan B - which has a lot of uncertainty attached to it.

 

Preferred Plan:

Contact the creditors (over next few weeks) reach an agreement and pay.

This is more of a Credit Consumer query on how to negotiate with creditors directly or who provides the service i need in view of my peculiar situation of debt not being in my name (plus are there any negotiating tips?).

 

Plan B is where  we are not able to come to an agreement -as a result of insufficient funds (I can afford to pay up to 65%+ but all the information to hand is that since they have CCJs they will insist on the full amount).

Since the case is already in pipeline to go to Land Registry Tribunal in a few months’ time, I’m trying to understand what to expect and how to avoid incurring costs.

 

With the additional thought - is there a way to avoid going to tribunal entirely, even if the creditors were not settled at this juncture but I still want the Transfer of Equity to go ahead?

 

That’s where the advice I received that the creditors would have (and likely take up) the option to apply for a unilateral charge after the transfer went ahead, comes in.

 

As this may end up being the solution I am left with – I’m trying to get an understanding of how that would play out and if there are risks to allowing that to happen.

eggbox

Hi Dilim
I think we need Land Registry Representative to clarify a few things before any more advice is dished out as its my understanding that creditors can't stop a transfer they just have to be notified as per the terms of the restrictions placed on your deeds. Can I ask what the approximate value of your ex's share of the equity is and what the debt amount is owed to creditors?

Land_Registry

eggbox said:

Hi Dilim
I think we need Land Registry Representative to clarify a few things before any more advice is dished out as its my understanding that creditors can't stop a transfer they just have to be notified as per the terms of the restrictions placed on your deeds. Can I ask what the approximate value of your ex's share of the equity is and what the debt amount is owed to creditors?

The only clarity I can usefully offer would be that if the OP has got to the point of sort it with the objectors or go to Tribunal, then this isn’t a perfect fit with what you are trying to deal with in this thread. 

The stand out fact appears to be that this isn’t a Transfer by the two joint owners on sale so notifying the creditors isn’t likely to be enough. 

The devil will be in the detail and if it’s got to the objection/Tribunal stage we’ve already provided the advice we can give as part of that process. It’s legal advice the OP needs if the creditors objections are to be challenged at a Tribunal. 

eggbox

Land Registry Representative
Thank you for the update and I'm still a little unsure how the matter came to be heard before a tribunal but, hopefully, Dilim, might expain that? 

However, what I was seeking assistance on is what happens in the event that an ex-partner wishes to transfer the share of  equity their ex-partner has given up to them? This is  in regard as to what happens to the restrictions in place and that were registered against the ex-partner who has given up their equity share? 

My understanding is that overreaching wouldn't occur, and so they wouldn't be removed; therefore, would they just be left in place on the deeds?

  

Land_Registry

eggbox said:

Land Registry Representative
Thank you for the update and I'm still a little unsure how the matter came to be heard before a tribunal but, hopefully, Dilim, might expain that? 

However, what I was seeking assistance on is what happens in the event that an ex-partner wishes to transfer the share of  equity their ex-partner has given up to them? This is  in regard as to what happens to the restrictions in place and that were registered against the ex-partner who has given up their equity share? 

My understanding is that overreaching wouldn't occur, and so they wouldn't be removed; therefore, would they just be left in place on the deeds?

It hasn’t been heard as yet from what I can glean from the OP’s comments to date. A Tribunal is generally only involved if the parties cannot resolve matters. The Tribunal is in essence a means of hopefully resolving matters for each without the need to go to court. HMLR are not directly involved 
Your wider Q is I assume the key one for all parties but without specifics I cannot be sure. You say ‘given up’ but it seems a court has stepped in to ‘take it away’. That’s a very different scenario and as such I suspect it doesn’t have the same overreaching effect. 

The Transfer deals with the legal ownership after all but the charging orders are against the debtor’s beneficial ownership as they were joint owners. 

The OP is best placed to explain here for you as they have the specifics and will presumably also have sight of the grounds for objection by the creditors and why overreaching has not occurred. 

Scouse1066

Hi All

I am in a similar situation to many that have posted on here, I discovered this thread after reading on a solicitor’s web site that charging orders are not as secure as their clients may think and advising they add a notice period to the conditions. I then stumbled on this thread which confirm my suspicions that there is no obligation to pay the debt before contracts are exchanged. I have contacted the land registry to have a few things confirmed by them

1)       Who needs to give written notice to ‘****’? my conveyancer or the buyers conveyancer?
2) How much notice should be given to ‘****’ before the sale is completed?
3) If written notice is given and a signed certificate confirming this is sent to LR then the restriction will definitely be removed and will not show when the new buyers complete the sale?

This was the response I received from the land registry

1. The applicant for registration or their conveyancer - it's therefore usually the buyer's conveyancer who notifies the creditor as it's they who then provide the certificate in compliance with the restriction wording

2. There is no timescale - they simply have to be notified

3. If the restriction is complied with and the sale is by the two of you to new buyers then the restriction should be overreached and automatically cancelled when the transfer and new owners are registered.

See section 4for guidance on how overreaching can occur

 

I forwarded this information to my conveyancer and asked how to proceed, this was the reply.

 

I believe the best way to proceed is to wait until the buyers’ solicitors raise enquiries with us regarding the restriction on the title. In accordance with the restriction we will then have to serve written notice to them of this sale.

We can then provide a signed certificate to say we have done this and provide this to the buyers solicitors. Land registry are incorrect below, the buyers’ solicitors wouldn’t be notifying the company, it would be us, as you are our client. They don’t act for you as seller and you’re the person who has been made subject to the interim charging order.

If the company do then come back to us and write back to say a payment is due (which I am guessing they will, hence why they have put the restriction on there) then we will come back to you regarding that.

 

Now this has me concerned as I don’t think the land registry are wrong the wording on the restriction I have reads like this;

 

RESTRICTION: No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to ‘***********’ being the person with the benefit of an interim charging order on the beneficial interest *****************

 

I'm fairly early on in the sale process and would rather change solicitors than for the ones I have to mess it up and end up paying the restriction, so if anyone has any advice or pointers as to who could help at this stage I would be most grateful

Land_Registry

The key parts here are that someone has to notify the creditor in such a way that the buyer’s solicitor can then certify that’s happened when they lodge their application. 

Our reply simply tried to explain that but in a different way. And if your solicitor says it’s for them to do and then confirm to the buyer’s solicitor then all well and good. 

The bit to pick up on, but not worry about at this stage, is the second part whereby they will come back to you if the creditor says monies are due. That’s fine as simply saying they will let you know. They’re not saying you have to pay for example. 

I’m sure eggbox has far more experience of what your solicitor actually means here though

eggbox

Land Registry Rep
I'll answer Scouse1066 next but I'm a little confused by your post as you've always explained the "devil is in the detail"?  Previously, we've always advised that as it says the "applicant for registration or their conveyancer" in the wording then it can only be the applicant or their conveyancer that provides notification to comply to both creditor? So, are you now saying anyone can give the creditor notice as long as its the applicant for registration or their conveyance that provides the certificate to the Land Registry?

I would have thought it was the applicants side for both to avoid any confusion (or deceit) that the task has been carried out?

Land_Registry

The restriction wording states who has to provide the certificate. What the applicant or their conveyancer need to enable them to do that is up to them 
Pretty sure I’ve not said anything different on that point before so no change. And the restriction wording is where the devilish detail is written 
As you say most conveyancers would probably want to do it themselves. But if a fellow conveyancer does and confirms they have I imagine most go with that