Charging Order? The myth

eggbox

dawny

terryw gives good advice and I would definitely follow it up quickly.

You are right about your buyer, though, which is why you need to do all you can to get him to badger his Solicitor and also contact the Land Registry regarding the limitations of the Restriction. If he is as depsperate as you say he should be as angry as you are that his Solicitor is jeopardising, without any legal reasons, the sale going through.

And you are perfectly entitled to make a claim for your losses, through the small claims court, against the Solicitors involved. In my opinion, this fact should be added to terryw's letter suggested, backed up with the information you have explaining their actions have not been required legally and have been detrimental to both seller and vendor interests and will result in avoidable and unnecessary losses which they will be responsible for.

You could state that, unless they can provide legal reasons for their actions in not proceeding with the sale, you would have no choice but to recover your losses from them through court (I would also put in that, after taking advice, you would be doing this through the HMCS moneyclaim online service should no legal reasons be forthcoming just to let them know you aren't giving out a threat willy nilly and are serious about your intentions.)

As ever, don't give up on this sale until its definite it won't proceed. But do use the information you have effectively and expect to be rebuffed a few times as Solicitors (as you will be only too aware by now) are fairly arrogant even on a good day.

If you need any other help just ask ok!

dawnyp64

Thanks one again Eggbox and terryw!!...iv had an email from my solicitor saying hes sent an email reiterating that there only obligation is to notify the creditor,and if they dont agree,respond with their reasons why!!!......i want to swear..but better not!!..

eggbox

Dawny

At least you seem to have got your Solicitor's attention in doing as you ask based on the info you have given.

This should hopefully start to bring out on what grounds your buyers Solicitor is objecting (but do expect to have to ask again!).

Its a step in the right direction anyway!

dawnyp64

well,heres the update..
the buyer has sent this email:

''i have reviewed all the information you have passed onto myself and I have been in talks with my solicitor all day, the end conclusion is my solicitor would forward on my request for completion if I wanted to, however due to the restriction it would appear if I did this then my mortgage company would in fact withdraw the mortgage anyway.

After speaking with my solicitor, I wouldn't be happy to proceed with the purchase completion until the restriction is taken off the house and dealt with by how my solicitor has stated.

Your solicitors are fully aware of what is needed, they spoke again on Friday at 2:55pm with my solicitor and it was confirmed to them what is needed to complete the house purchase (getting this restriction removed) your solicitor agreed with this course of action and confirmed they will look into this and to this was let with them to sort out, from this conversation on Friday your solicitor has not yet got back in touch with mine to confirm how they are getting on.

I will aim and in all good faith will be able to extended my rent deadline for a few more weeks, giving even more time for this restriction to be removed correctly, this has been stressed by my solicitors to yours, this must be done or this house purchase will not go through''

also,my solicitor has sent this today:
His (the ex) instructions are that he is happy for his share of the equity to be paid to Northern Rock however there will be no payment plan and he has not authorised me to release any contact details.

I need you to confirm that you are happy to me to approach Northern Rock with this proposal.

When contacting Northern Rock I intend to argue that this is the best possible outcome for them on the basis that they get their share of equity in the property and that should the property be repossessed they will most likely receive less or nothing
I have agreed that he approaches NR but 2 points were raised by myself
a) they do NOT have a share of the equity,but an INTEREST in my ex partners share of the equity
b)i will be contesting how much equity my partner is entitled to,as i alone have paid the mortgage for the last 4 years (he walked away from the relationship leaving me with a lot of debt).
If anyone has any thoughts/advice on this id be glad to hear them..even if its to say im being unrealistic,unreasonable etc...though i dont believe its unreasonable,as he just left me to it..(just an opinion)..

eggbox

Dawny

Things are picking up and the fact your buyers Solicitor has relented should give you hope now!

Your assertion that you are entitled to a greater share of the equity than your Ex, given the mortgage payments you have made, is perfectly reasonabe. But you need to decide what is more impoertant to you right now; the sale or getting a larger share of the equity? I say this as to argue for a greater share is going to take time to get agreed and verified which you probably don't have with this buyer.

My advice would be to make it clear to NR that if they don't agree to remove the Restriction, under the terms your Solicitor has put forward, then, if this sale falls through, you will be taking steps to get your share of the equity legally increased thereby reducing anything they will be entitled to lay claim on in future.

dawnyp64

yes,Eggbox...the thought had crossed my mind.its the principle,tho..he left me in such a mess,it would have seemed like a bit of justice to get something back from it all..
i also thought that if everything went to plan,the sale would go thru,then the solicitor would hold onto the equity til the shares were sorted out..but iv been too busy trying to sort the sale out to focus too much on it.

il contact NR tho,with your suggestion...they should count themselves lucky the ex is prepared to just hand that money over to them..

eggbox

Well I'm sure you'd prefer the sale goes through, but at least its something you can sort out if it, unfortunately, doesn't (and you will be more than prepared for any future sale too!)

As can the hurdle in your buyers email regarding the Mortgage being withdrawn if the Restriction is not removed? This is where your Solicitor is letting you down as he can gain assurances from the LR and explain to the lender that the Restriction will be automatically removed upon registration of your buyers new details.

Given how solicitors are mostly unaware of the Restrictions limitations (or have prefered to ignore them?) its most likely the lenders are unaware too (cash buyers would obviously eliminate this problem completely)

I hope NR have the sense to see that if they don't accept the deal offered they are unlikely to get anything in a future sale.

Good luck!

deepindebt102

sorry guys, do not want to hijack the thread, just 3 quick question re charging orders.

1, can it be added if there is no equity in the house (or negative equity)
2, can sale enforced? or the charger just waits until sale happens?
3, what if no sale in 50 years?

Thanks
Regards
John

eggbox

deepindebt

1. Yes it can.

2. A sale of the property can try to be enforced, but Court stats reflect that only 0.3% of CO ever progress to a creditor trying to enforce a sale so it's exceedingly rare! This is, probably, a combination of the Courts having far wider discretion on granting sales (and are reluctanct to do so if the house is your main residence) and creditors taking a longer term view for repayment of their debt (as you house should increase in value so their debt should be more easily recoverable which is why they might still go after a CO even if your house is in negative equity)

3. Thh CO has no limitation placed on it, so if a creditor wants to wait 50 years without any further enforcement then that's a matter for them. (Why 50 years though?)

dawnyp64

Deepindebt...no worries..this is the best place for the best advice..

Eggbox..iv had this email of my solicitor today:

''I refer to your email of 13th March at 17:23 where you state your intention to contest Mr Harrisons share of the equity and take separate legal advice. I have joint instructions from you both in connection with the sale of the property only and therefore cannot advise one way or the other in respect of the stated intention.''

If you cannot agree the amount to be paid to Northern Rock then I no longer have joint instructions and a conflict of interest will arise and I must cease to act for you both.

Please can you consider the above points and confirm your instructions.

As much as i would love to hange solicitors,he knows,as do i,that i cannot at this late stage.
So,its a case of bite the bullet isnt it?
I have replied in saying i would of preferred the potential issue of conflict of interest bought up at the beginning,so as to seek independent advice on the matter..which i will still do but think i have no choice in the matter of a 50/50 share..