Charging Order? The myth

eggbox

No that's not correct. Transferring a property doesn't overreach the Restriction, therefore, it would stay on the register. The Restriction would only be removed if you both sold to a third party for a "valuable consideration" (something with a monetary value)

Land_Registry

eggbox -  the key here is the transfer, and as you state, being for valuable consideration. 

PG 76 states “We will automatically cancel the Form K restriction once it has been complied with on registering a transfer of the registered estate for valuable consideration. We will assume that if the debt secured by the charging order has not been paid, your client’s interest will have come to an end with the postponement of the charged beneficial interest under section 29 of the Land Registration Act 2002.”

The guidance isn’t as specific now as when you first started this thread and it was updated back in 2019 re the point you make re a third party. 

However a transfer between Dad and Mum to Mum and Son is rarely for valuable consideration but it maybe in this case as Dad is paying off the mortgage and maybe removing himself entirely from the property ownership. 

If not then no point transferring it say by way of a gift as that won’t overreach the form K
So the devil is as always in the detail and what the transfer is in consideration of 

Jcbkabs

Hi land_registry and Eggbox.

I will be removing myself from the property totally and purchasing a new home for myself wife and son will remain in property.

Or would it be better to just put it into sons name only?

eggbox

Jcbkabs said:

Hi land_registry and Eggbox.

I will be removing myself from the property totally and purchasing a new home for myself wife and son will remain in property.

Or would it be better to just put it into sons name only?

If your aim is to get the restriction removed, and as long as you trust your son not to screw you over 🙂; then the easiest way to achieve this is for you and your wife to "sell" your property to your son. This is simply because you can do all the conveyancing yourself and you won't get any obstacles from solicitors.  

Jcbkabs

what egg box what forms will I need?

Land_Registry

Jcbkabs said:

what egg box what forms will I need?

If you are looking to transfer the legal ownership then see 
https://www.gov.uk/registering-land-or-property-with-land-registry/transfer-ownership-of-your-property
We’d always recommend you get legal/financial advice/assistance before making such changes although I appreciate you may have done so already 

GedMSE

Has anyone got any info on conveyancing solicitors that are aware of the above rules and can negotiate them easily?

Thanks 

Sponz

GedMSE said:

Has anyone got any info on conveyancing solicitors that are aware of the above rules and can negotiate them easily?

Thanks 

If you find one let me know as I am totally getting mixed advice.  What are people's thoughts on the following?  Family home bought 50/50 between me and husband with deposit and mortgage.  2nd mortgage taken out which I had to agree to. Was put into husband's company.  Verbally agreed between us it would come from his equity and his company would repay it.  Company repaid about 5% and then went into liquidation so it will never pay it back.  Last two years I have been paying mortgage 1 and mortgage 2 on my own with interest.  Charging order appeared on house in Dec (husband's share only.  Not me).  Based on house valuation, outstanding mortgages my husband has very little, if any interest.  Where do I stand?  I've been told it's 50/50 despite me paying 100% of mortgage for two years and me not benefiting from remortgage.  I have been told by another I can get a retrospective declaration of trust.  Is anyone able to tell me what I can do as I want to sell but I am fuming I will be having to give up my equity to pay off a charging order that has nothing to do with me.  Thanks.

eggbox

Sponz

Unless there is evidence to the contrary then, yes, a 50:50 split will be assumed. A retrospective declaration of trust is achievable but it would all come down to whether a Court would accept it as legitimate, if the matter ever went to Court? But remember any debt owed by your husband can only be retrieved from his share.

We're still looking for a solicitor to act for sellers and I will udate the board in the near future on an attempt to do this. 

jmsc3511

Hello. I have 2 Form K restrictions for a sole debt on a jointly owned property and am in the process of selling the property. I've been following this forum for many years and understand that they are restrictions and not notices and that the requirement is for the buyers solicitor to provide a certificate to Land Registry at the point of registering the title into the new owners name. The certificate should state that they've notified the creditors of the sale. I'm working with my conveyancing solicitor who seems open to me explaining what a Form K restriction is and I'm hoping that he'll be able to explain things to my buyers solicitor. My question is what is the process for the buyers solicitor? When registering the property in the new owners name do they only need to provide the certificate and that is enough? Is there any requirement for them to provide an RX3 or RX4 form at that point?
Thank you.