Charging Order? The myth

eggbox

Scouse1066
The Land Registry advice (in my view) is correct and the notification to, both, the creditor and the Land Registry should come from the applicant for registrations side (the buyer) as that is the wording on the Restriction. I'll be guided by Land Registry Reps next post on notifying the creditor, however, It is, however, definite that the certification to the Land Registry, of the notification having been carried out, has to be done by the applicants side to comply.

That aside, the main thing you need to understand is that you will need both solicitors on board to get the job over the line. This is because their is still a lot of resistance from many solicitors not to embrace the facts and stick with the method of paying the creditor upon sale. So if you're relying on a solicitor who says if they ask for payment then we'll have to pay then my, personal, advice is you may need to move on.

The buyers solicitor will, usually, be the most difficult to convince as they will want the title to show the register is clear prior to sale. The method explained on this thread doesn't do that as the restriction is only removed aftet sale by way of being overreached and, therefore, having to be automatically removed. So you need to be clear on the process and why it works to have the best chance of selling without settling the debts upon sale. 

Scouse1066

Thank you both for your replies, yes I feel I need a solicitor who completely gets this and is willing to fight on my side convince the buyers solicitors that everything is above board, I'm not convinced my conveyancer is up to it as she's not a solicitor and probably seeking advice from the solicitors in the firm. So if anyone has any details they can PM me I'd be most grateful.   

eggbox

Lanr Registry Rep
I'm not saying you've asserted that both actions have to be carried out by the applicants side, however, I can say that its never, previously, been explained (or updated when discussed) that someone other than the applicant side can notify the creditor? The information given from the Land Registry does, however, appear to agree with you in that they state its "usually" the applicants side who notifies the creditor. 

So, I'm not disagreeing just surprised this hasn't been explained previously as you will find whenever this has come up its been explained that the restrictiong wording states its the buyers side who has to do it to comply?

Stesar

Scouse1066 said:

Thank you both for your replies, yes I feel I need a solicitor who completely gets this and is willing to fight on my side convince the buyers solicitors that everything is above board, I'm not convinced my conveyancer is up to it as she's not a solicitor and probably seeking advice from the solicitors in the firm. So if anyone has any details they can PM me I'd be most grateful.   

Hi. I've recently been through this and would absolutely recommend you find a more experienced conveyancer. I've PM'd you the details of the one I used and understood the whole process entirely. We sold with no trouble whatsoever.

Land_Registry

eggbox said:

Lanr Registry Rep
I'm not saying you've asserted that both actions have to be carried out by the applicants side, however, I can say that its never, previously, been explained (or updated when discussed) that someone other than the applicant side can notify the creditor? The information given from the Land Registry does, however, appear to agree with you in that they state its "usually" the applicants side who notifies the creditor. 

So, I'm not disagreeing just surprised this hasn't been explained previously as you will find whenever this has come up its been explained that the restrictiong wording states its the buyers side who has to do it to comply?

Understood and appreciated. The restriction wording is definitive re what’s needed to comply with it. How they get to the point of being prepared to ‘certify’ as required isn’t for us to consider or arbitrate on. 

I may not have made that clear before but probably felt it was too obvious as you don’t certify something unless you are 100% sure. How you decide on that level of certainty is subjective but for conveyancers it’s all about evidential proof. And I guess if you do what’s required then you know you’ve done it, hence the buyer’s conveyancer will usually notify the creditor. If the seller’s conveyancer does then presumably they will accept their word as part of professional regulations around acting properly/honestly. 

Routerman

Hi Eggbox,

Our property is jointly owned with a form K restriction in my wife's name and we are hoping to remortgage soon.

I offered a lump sum of approximately 30% to the debt purchasing company but they refused, insisting on the full amount.

The building society obviously won't accept an application with the restriction in place, but suppose we sold the house to our daughter for eg £1000,would  the restriction be overreached or would the land registry regard it  as a non-genuine transaction?

The intention would be to buy back from our daughter and then remortgage in my name only until the debt was settled eventually.

Also could the same solicitor act for us and our daughter in the "sale" and re-purchase?

Regards

eggbox

Routerman
The simple answer is yes as I've recently helped another couple and their two daughters achieve exactly the same thing. The Land Registry also can't class it as a "non-genuine" transaction because it isn't non-genuine - you are going to, legally, sell your house to your daughter. The cost is, also,  irrelevant as you can sell your house for whatever price you wish.

But the above is why you need to understand that you are taking a huge risk as, when the house passes into your daughters name it becomes, legally, her property and there is no guarantee she will sell the house back to you. This is not meant to be a slight on your daughter, its just a fact that, as a human being, she could have a cunning plan up her sleeve to relieve Ma and Pa of their property. I'm making a joke of it but you need to 100% certain before you enter into the sale as you could end up losing the lot if you aren't 100% certain.

If you are happy to proceed understanding the risk, then I would do the conveyancing yourselves as it keeps out solicitors completely and any "moral" objections they may want to insert into the proceedings. If you've read most of this thread you'll understand solicitors rarely make proceedings run smoother and tend to consider there own position before the interests of their clients. The Land Registry actually have a youtube video on how to do the conveyancing yourself and, as your aim is to buy back the property (which you don't have to do you can simply transfer it back after the sale when required), you don't have spend money on searches and surveys etc as you would if you're daughter was "actually" purchasing the property from her own pocket. So, I'd give that a think through.

If your daughter is already a home owner you must remember that she has to pay Stamp Duty as it will be a 2nd property ownership (but on a £1k sale it won't be a fortune) and you will also have to time the notification of the sale, to the creditor, in line with the fact that there is no set time limit; they just need to be notified before the Land Registry can update the register.

The only obstacle after all of the above will be if the creditor makes any move on what you've done? Apart from a couple of sellers who've said they have received letters requesting the money, the rest I've seen completed have done nothing. In the case I dealt with the debt was being handled by Restons who are a particulary unpleasant bunch and they didn't even respond to the notification of the sale? This is probably down to a few issues of having easier targets to chase and reduced resources during the past 12 months. But in all the years I've dealt with sellers I've never seen any creditor take any real interest. My own feeling is that it would involve a huge amount of time, effort and expense to intervene and, as they have plenty of other fish to fry, they let it go. They are businesses at the end of the day and will do a cost assesment of chasing tbe debt further and, given you've already loopholed avoiding a CO, they probably accept its a waste of time commiting futher resources on the matter. 

Wookiee501

The other thing to remember is that if there is already a mortgage in place (which I'm assuming there is, from the reference to remortgage), the existing lender would probably need to consent to the transfer to your daughter, unless you're somehow in a position to redeem that mortgage without requiring the funds from the new lender.

Routerman

Many thanks for quick and considered reply Eggbox, it could help someone in a similar situation but with funds to clear  a mortgage which I don't, unfortunately.

Thanks for reminding me Wookie, completely overlooked that, I probably shouldn't be thinking about these things and posting at 3 o'clock in the morning.

It would be great if Nationwide would  go with the Notification to restriction holder idea when re-mortgaging but somehow I suspect that would be a big No-No

eggbox

Router's
I think you owe Wookie a thank you for saving your time as I'd assumed you didn't  have a mortgage. 

But can you not re mortgage with your existing lender as there is no need to remove the restriction then as they're already the 1st charge holder?