Charging Order? The myth

eggbox

Farnsy

If you read any of this thread you will see you weren't alone in how you dealt with the problems, as thousands of others were/are in the same boat. So I wouldn't beat yourself up over it. And if the house was jointly owned (but only you owed the debt) then a Restriction will be registered on your deeds not an equitable charge.

As this thread is explaining, where a Restriction is registered its possible to sell the property without settling the CO debt levied against the proceeds in the property, when selling up.

Land_Registry

Eggbox - this article may be of some interest to you in the context of your thread - unless already aware of course 
https://www.falcon-chambers.com/publications/articles/dattani-abr-v-rashes-ors 

eggbox

Land_Registry said:

Eggbox - this article may be of some interest to you in the context of your thread - unless already aware of course 
https://www.falcon-chambers.com/publications/articles/dattani-abr-v-rashes-ors 

Thank you Land Registry Rep. My heads swirling a bit from the legal terms used, however, I'm reading it as that the Court is ruling that a conveyancing solicitor can not be found as acting dishonestly, legally, should they not pass on the proceeds, from a property sale, to the creditor where only a Form K is registered?

I'm sure you'll put me right if I've got that wrong 😊

Land_Registry

eggbox said:

Land_Registry said:

Eggbox - this article may be of some interest to you in the context of your thread - unless already aware of course 
https://www.falcon-chambers.com/publications/articles/dattani-abr-v-rashes-ors 

Thank you Land Registry Rep. My heads swirling a bit from the legal terms used, however, I'm reading it as that the Court is ruling that a conveyancing solicitor can not be found as acting dishonestly, legally, should they not pass on the proceeds, from a property sale, to the creditor where only a Form K is registered?

I'm sure you'll put me right if I've got that wrong 😊

Appreciated and that’s my reading also - the legalese is always important when it comes to the legal nuances. My reading of it is that there’s some wriggle room here as the person who went to court did so within specific legal parameters and it’s in that context the verbal judgement was handed down. 

But from a broader perspective and for relevance to your thread then your interpretation is spot on. Referring to the specific court case might be prudent to include where posters suggest their conveyancer is advising that they’ll be liable if they don’t do more re the creditor 

eggbox

Thank you for clarifying LRR!

Starry78

Hi,
Sorry if this has already been covered in this thread but I was hoping for some advice.
My husband had 2 charging orders registered against our jointly owned property 6 and 7 years ago.
On the deeds, this is just showing as a restriction.
Unfortunately, my husband passed away suddenly 6 months ago and I am now going to have to remortgage as the repayments are too much to pay with only my salary.
I have changed the deeds at the land registry, so the property is solely in my name. The restrictions are still showing under the proprietorship register in my husbands name.
When I remortgage, will this cause an issue? My intention had been to borrow enough to clear these charging orders as well as the current mortgage and secured loan. And can the restrictions stay on the deeds when they are to do with someone who is no longer an owner as they have passed away?
Thank you for any advice.

eggbox

Starry78

Land Registry Rep may be able to help you a little more on this, however, if you are trying to remortgage with a new lender then any Restrictions still on the register will cause a problem. This is because any new mortgage lender will want to have what is called the first charge on the deeds. Meaning they get priority over all other charges or restrictions. If the Restrictions are still showing, then this isn't possible simply as charges are registered in date order.

However, your present lender may have provisions within the mortgage you currently have, to offer further lending. If so, then they could help you as they will still retain first charge on the deeds.

Land_Registry

I’m sorry to read of your loss. The restrictions remain in place until an application is made to withdraw (creditor) or cancel (you) them. They don’t simply come off following the death I’m afraid. 

If you are trying to clear the debts then a withdrawal can occur but you’ve got to get things aligned clearly between the remortgage, release of funds and paying the debts. 

Eggbox has explained the lender’s position here so worth seeing what the new (or existing) lender advises re how they might handle things re remortgage and then ensuring the restrictions are removed 

Starry78

Thank you for your responses.
The charging orders together amount to between £17k-£18k, the house is worth approx £300k, and I want to borrow about £90k to pay off the existing mortgage, secured loan and the charging orders. 
The gist I get is the majority of mortgage lenders would not be happy to lend to cover charging orders, even though the ltv ratio is low. I'm not able to pay the charging orders until I get a new mortgage and my current lender has stopped remortgages and only offers mortgages to existing customers if it is a new purchase. I'm feeling a bit stuck!

tksnota

Land_Registry said:

eggbox said:

Land_Registry said:

Eggbox - this article may be of some interest to you in the context of your thread - unless already aware of course 
https://www.falcon-chambers.com/publications/articles/dattani-abr-v-rashes-ors 

Thank you Land Registry Rep. My heads swirling a bit from the legal terms used, however, I'm reading it as that the Court is ruling that a conveyancing solicitor can not be found as acting dishonestly, legally, should they not pass on the proceeds, from a property sale, to the creditor where only a Form K is registered?

I'm sure you'll put me right if I've got that wrong 😊

Appreciated and that’s my reading also - the legalese is always important when it comes to the legal nuances. My reading of it is that there’s some wriggle room here as the person who went to court did so within specific legal parameters and it’s in that context the verbal judgement was handed down. 

But from a broader perspective and for relevance to your thread then your interpretation is spot on. Referring to the specific court case might be prudent to include where posters suggest their conveyancer is advising that they’ll be liable if they don’t do more re the creditor 

I read the article also but due to my limited understanding I want to know if the solicitor will not legally dishonest to progress with the sale of a Form K  restriction on the land? Thanks