Charging Order? The myth

eggbox

Good luck and thanks for keeping the board updated!

dawnyp64

Bad news im afraid...the buyers solicitor wont budge until the restriction is removed.
Northern Rock say they wont remove it until the debt is paid.

eggbox

Hi Dawny, sorry about whats happening and your buyers Solicitor being a pain in the rear end!

However, don't despair just yet as your buyers Solicitor can't go against his clients wishes if they wish top proceed with the sale. He would only be able to object if there was a risk to his client which, as the LR themselves have verified, there isn't.

Armed with the info you have; and also the fact that your buyer can ring the LR to clarify the matter on what happens to the Restriction if a sale is made, you have nothing to lose by contacting the buyer on this matter and to explain this. (Given you said they were desperate I can't see why they would object, either?)

Also, you need remember that Northern Rock won't have a choice about the Restriction being removed if your buyer agrees to proceed with the sale as,legally, the Restriction they have does not entitle them to any proceeds from the sale of the house directly. It only has power of notification and they have already had that anyway.

I know you are probably fed up to the back teeth right now, but I urge you not to give in even at this late stage as your buyers Solicitor is acting against his clients wishes without any legal obligation to do so! Thats what your buyer needs to get across to him if they still want to proceed.

dawnyp64

Hi Eggbox..am i right in saying (going by the wording on the registry) that its the ''buyer or his conveyancer'' that can give notice to NR and the LR?? Couldnt my buyer order the sale to go ahead,then do the notices himself??
Also,NR told me they will not remove the restriction until the debt is paid off.
When i questioned them re: having to make a legal claim,AFTER the sale,to recover the ex's share of the equity,she said she has never had to make a legal claim for payment...i responded with..''is that because people are not aware of their rights so forward payment'',she didnt deny or confirm it...just said she had never done it!!
I also mentioned it was a restriction only, not an equitable charge,so they only need to be notified she replied that was correct but could still refuse removal of the restriction until the debt was paid.
She says she needs a completion statement,forwarding address of my ex's and a payment arrangement to be in place.....but,my solicitor has said that my ex has given strict instructions that his address is not passed on to anyone else,inc NR.

Eggbox,i want to stay positive but after today i feel im really wasting my time..and i feel physically sick with it all.Iv been in touch with the legal ombudsman,SRA,National Debtline,as well as being given the name of a man who deals with complaints inside of my firm of solicitors.I rang him,left a voicemail after being put through.he hasnt called me back.
oh,and iv had my solicitor arguing back at me when iv tried to raise points too,so now im just emailing him.
Its not getting resolved..if anything im now going backwards..
truly disheartened..

eggbox

Hi Dawny

Firstly, I fully understand your disheartenment as you have been let down badly by your own Solicitor. But its a product of the cosy little Club they live in that believes it knows best at all times and, God forbid, should ever be questioned by a layperson!

To answer your questions; the Form K's wording;
"without a certificate signed by the applicant for registration or their conveyancer"
So yes, it can be either the person (applicant) or their Conveyancer (Solicitor) who notifies the LR to satisfy the terms of the Restriction.

Also Northern Rocks Charging Order, because your property was joint owner/sole debtor, is not against the the property itself but, rather, the Beneficial Interest (equity) of your Ex. They, therefore, would have to mount a legal challenge to stop any sale proceeding (which would undoubtedly run into thousands of pounds as they would have to apply for a freezing order and so wouldn't happen) and would be bound to fail anyway as the terms of the Restriction only states that the Creditor has to be notified when a change of owner occurs (which it already has been anyway!)

The Court would have to throw out any challenge as nowhere does it state on the Restriction that NR have to be paid before any sale can proceed or, either, any power to refuse the Restriction being removed. As the LR have confirmed the Restriction becomes over reached once a change of owner occurs (for value) and will be automatically removed, they wouldn't have a leg to stand on. (Ironically it would be NR's solicitors who would advise against any Court proceedings as they know they would lose!)

However, NR aren't going to admit to this and, in my opinion, because of the general ignorance by sellers, buyers and, sadly, also Solicitors alike; they probably aren't aware of the difference a Restriction has anyway (or certainly not the standard office staff who pick up the phone).

To keep it simple, the key to your sale at this late stage is your buyer. If they don't want to proceed, then nothing is going to happen. However, as I said previously, if they instruct their Solicitor to proceed the Solicitor would either have to give legal reason they can't do so or refuse to deal with the sale.

The Solicitors, themselves, have no legal powers to prevent a sale from proceeding if everything is above board and can lay themselves open to a claim for your financial losses if, as you can, provide evidence they prevented the sale without any just cause.

If your buyer is still up for the sale I'd give the SRA one more call and make it crystal clear you require urgent advice to prevent the loss of a sale.

dawnyp64

Eggbox..iv text the seller AND emailed him with the suggestion he TELL his solicitor he wants to proceed,with all of the facts AGAIN concerning his right to do so,what the LR state,etc.
Hes replied with ''il forward your email tomorrow''. Also,he had stated in an earlier text that his solicitors wouldnt budge.
Its totally out of my hands..

eggbox

Glad you are still trying and don't give up!

You need to get your buyer onside with the facts of a Restriction and if his Solicititor is still saying he "won't budge" then he needs to provide his client with the legal reasons for this?

Your Solicitor, too, should be finding out why his opposite number is refusing to complete as you say he agreed with what you have told him about a Restriction.

Don't let them off the hook and keep on at them while you still have the chance to get the sale done!

terryw

dawnyp64 wrote: »

Eggbox..iv text the seller AND emailed him with the suggestion he TELL his solicitor he wants to proceed,with all of the facts AGAIN concerning his right to do so,what the LR state,etc.
Hes replied with ''il forward your email tomorrow''. Also,he had stated in an earlier text that his solicitors wouldnt budge.
Its totally out of my hands..

dawny,

I really don't know what to say. You must be so depressed. Please, please keep positive even at this late stage.

I am not a lawyer and I am only following this thread as a matter of interest. What follows is merely my opinion. Please take full advice before dong anything.

But, if this were me I would be thinking that eggbox is dead right and the solicitors are wrong. Eggbox gives chapter and verse on the whole situation.

Again we are are looking for a way forward and this is what I would do in your circumstances.

I would type up a letter giving full details. The letter would be perfectly typed and free of slang and text-speak. This letter would be handed in to the parties involved (and to be on the safe side, copies sent by checkable mail) . There can then be no doubt that everyone is aware of the situation.

If the sale then does not proceed there could well be a claim against the other persons involved - your solicitor, the buyer's solicitor, the mortgage people and their solicitor.

Have a think for yourself and work out the best way possible.

I sincerely hope that everything works out fior you.

vbw

Send copies to the head of the firms and the regulation bodies as well

dawnyp64

hi terryw..thanks very much for the advice.have to say i really feel iv done all i can.If the buyer decides to go with what his solicitor tells him(as incorrect as it is),or pulls out of the sale,then my hands are tied and theres nothing i can do.

Iv informed my solicitor that i will/have contacted the SRA,and seek advice regarding :
Loss of sale due to the misinformation to buyer and vendor
Inabilty/refusal to act in accordance with the terms of the Land Registry
Not informing my ex(as much as i dislike the ratbag) as to his rights regarding repayment of the debt to NR and their obligation to make a legal claim for the proceeds/equity from the sale.
Unnecessary delays resulting in time lost to secure the sale
Distress and anxiety caused (which apparently i can do....I think!!)
although this too,may be a waste of time..(btw..im usually VERY optimistic about most things,but this is something else!)..

dawnyp64

If anyone can give me any info on whether i can definately claim for loss of sale,that would be great..or point me in the right direction to any posts already on here??...i really would appreciate it...thanks all..