Charging Order? The myth

eggbox

Terryw

I do understand your point (and I do agree that you are probably correct) but Dawny only has a week so needs must I'm afraid. Writing would definitely be better; but with only a week to go its unlikely to have the desired urgent effect?

I would add, though, that she should also ring up the buyers, themselves, to explain that their Solicitor is dealing with issues that don't need to be dealt with and could jeopardise their sale?

If, as Dawny stated, her buyers are desperate for the sale to go through it would, hopefully, at least get them on their Solicitors case to explain what's going on?

eggbox

dawnyp64 wrote: »

I see it as this :
we go through with the sale
buyers solicitor notifies NR of the sale
buyers solicitor notifies the LR of the sale providing a duplicate of their written notice to NR (taking on board,Eggbox of what you said earlier re the RX3)in ref to transfer of deeds
the restriction is removed off the registry
NR make a legal claim for payment of the debt,to the ex on his receipt of funds.simple

Dawny, your case is only being complicated by the Solicitors involved in not understanding their obligations.

I can't tell you what to do but, if I was in your position I would make both Solicitors aware you will be contacting the SRA (Solicitors Regulation Authority) regarding their behaviour as they are preventing a sale proceeding unnecessarily. I would also demand they contact the LR Solicitor to clarify the position on what they are doing.

Its probably a last roll of the dice for you but at this late stage you need to make them understand you aren't going to take their behaviour lying down and you will seek redress for the lost sale if that happens.

dawnyp64

Eggbox..ive just sent an email to the buyer to forward to his solicitor containing info you have posted on here re the Form K and advised they contact LR for confirmation of the situation of the restriction..and yes,iv already decided on taking it further with the SRA whether the sale goes through or not.Both solicitors have been really lax in every way re this sale because of their ignorance.
Terry..im in daily contact with my buyer,and hes as frustrated as i am but theyve told him what my solicitor has told me..this restriction needs to be removed before the sale.also he needs the sale to go thru asap cos he will effectively be homeless as from the 19th March..
il keep you all posted,and once again thanks for your support..youve been great!..

eggbox

Dawny

You need to ensure that your buyer questions his Solicitor urgently on why HE is insisting the Restriction is removed when there is no legal obligation (or detriment to his client either given the restriction will be removed as being "Overreached" when the sale is made) to do so?

As you will be aware by now, Solicitors tend to think they walk on water and don't like having their actions questioned by the great unwashed. But as time is of the essence, you need to trample over a few sensitivities and make it clear to them that you are not going to take their actions lightly if the sale falls through.

Sparklyfairy

Dawny ((hugs)) - it is so frustrating to tell people their job, so I truly feel for you. As always, I agree with Eggbox. The only authority who can remove a restriction is the LR & as Egg stated, both solicitors should get this confirmed by a LR solicitor, as Egg has.

Unfortunately there isn't anything "black & white" we can give to your solicitor to stress this change, but waaay back on this thread Fatbelly posted (I think post 57) this link : http://www.bllaw.co.uk/pdf/financeandrecoveries_0806_charging%20orders%20on%20property.pdf

It's written by solicitors explaining the changes that were made back in 2003 & the potential pitfalls. Take a read & perhaps shove it under their nose..(btw nothing has changed since then re: restrictions). Hth, SF x

dawnyp64

hi everyone..
well,iv spoken to my solicitor today who told me there were only 3 points that were raised by the buyers solicitor,of which have all been addressed and emailed to the buyers solicitor today(this could have been done weeks ago cos all of the info was supplied).My solicitor said that the ball will be in the buyers solicitors court,and we are good to go if the payment in place for the sale...GREAT!!
..actually,no..
the reply back to my buyer from his solicitor today (bearing in mind his solicitor has had ALL the info iv collected off yourselves..SENT EARLIER THIS A.M), is this: ''No further updates.have spoken with solicitors and they have confirmed that they shall be dealing with my enquiry about the restriction with Eversheds.''...
absolutely gobsmacked.
I have now sent an email to my solicitor AND asked my buyer to forward the same email, stating all the facts again (inc myself being told by Eversheds that they no longer deal with NR,at all) and also stating that if this sale is jeopordised any further by their failure to act within the Land Registry terms of the restriction,i shall be contacting the SRA to file a complaint..
i feel this is not going to go my way however..too little too late.

eggbox

dawny

I really do feel for you over this matter because its blatantly clear your sale is being hampered by a frustrating mix of incompetence, stubborness and arrogance on the part of both Solicitors concerned.

It's of absolutely no consolation to you right now, but your experience is of a huge consequence to many others (myself included) who are in the same position as yourself following what happens to your sale.

I'd also like to thank you for reporting back your dealings as it has been so frustrating in the past when people don't let the board know what the outcome of their sale experience has been. (And you are absolutely right to go to the SRA about these two jokers, too!)

dawnyp64

yes Eggbox..its as you said though,theres a lot of people who arnt aware of how this works and put their faith in the ''professionals'' paid to do the job!My solicitor has totally messed up..hes backtracked on things he said,has cost me time (forget about the money),ie 2 weeks ago,telling me hes sending a statement from NR(no mention of Eversheds here) to my ex,needs to wait for his agreement re NR proposal of payment,has sent me a duplicate(though the other day said he couldnt do this as he wasnt allowed)..but the other day(THURSDAY) said ,no,he never sent that proposal of payment cos he wanted to remove the ref from NR,but HAS sent a statement of sale and is awaiting for the ex's agreement.
It really is shoddy,and on top of his incompetence,i have the buyers solicitor who wont listen to the buyer. Awful..will let you know how it goes..and im contacting the SRA regardless of the outcome..thanks so much for your continuing support..it really is appreciated..

eggbox

Dawny

No problem and I would definitely take the time to put in a call to the SRA on Monday for their input as it may just save the sale?

To keep your spirits up I have reproduced word for word what the Land Registry Solicitor (based in in Stevenage) replied to my question on the effect of "Restrictions" when selling a property with a "Restriction" registered against it.

On writing to ask what the Form K meant she replied;

"This means the Land Registry will not register a transfer of charge (for example) unless the applicant for the registration confirms that they have given notice of the transaction to XXXX. What the interested parties do at this point, or what XXXX does as a result of the notice, is not, of course, a matter for the Land Registry."

On asking in a later letter regarding the "Restrictions" removal she replied,

"The provision of the certificate mentioned in the form K restriction means that the registrar is not prevented from proceeding with the application to register a disposition (for example, a transfer or charge) and that the registration can proceed.

the certificate does not affect the restriction entry. Arestriction on form K may be removed from the register in the following circumstances.

Automatic Cancellation

When a transfer of property is registered (following receipt of the required certificate), the restriction may or may not be automatically cancelled, depending on the circumstances of the transfer. If, for example, the application is to register a transfer by two or more proprietors to a third party for value, the trusts interests will be overreached and the form K restriction will usually be cancelled."

Your Solicitors have, therefore, unneccesarily involved themselves with matters that aren't relevant to the exchange of the property as you and your buyer wish to do and, in my opinion, have jeopardised your sale from going through and for which they should be held accountable for.

dawnyp64

youre right, Eggbox.. i will be getting in touch with SRA anyway,cos they have jeopordised the whole sale through their ignorance,arrogance and inability to act on the terms of the restriction.And as ive said Eversheds arent dealing with NR anymore,something that was confirmed by NR so why the buyers solicitor is waiting for a reply from Eversheds,i have no idea!
il send that latest bit of info youve sent(THANKYOU!!!) to both sets of solicitors,as well as the senior conveyancer,who im keeping updated.
As always,il keep you all posted!!