Charging Order? The myth

eggbox

Sparkly

As I have stated previously; My Ex, who has the restriction on our property, hasn't paid a penny off the debt since being unable stop the CO hearing nearly two years ago as it was clear they wanted the CO no matter what.

They range her twice after the CO hearing to mumble further enforcement would follow and she basically told them to get stuffed and nothing's been heard from them since?

I came across another bit of reading the other night from Durham University regarding the CO act 1979 (which I will post up when I get the time as it's really loooooong!) but was stating that when the CO Act was formed, the goverment miscalculated on the Courts granting Orders for Sale to creditors where only one of the joint owners was a debtor.

Apparently, it became the norm for an OFS to be granted in nearly every case by the Courts regardless of the joint owners situation. This was widely thought to be carried out as the thinking (at the time) was that any joint owner (usually a spouse) would have benefited from original lending the debtor now owed.

Future thinking on this matter was altered when it was, rightly, agreed a joint owners rights had to be taken into account and automatic benefit couldn't be assumed (that is a very short interpretation!) But, I assume, this is why the ammendments were made in 2002/03 to stop this particular practice and, thankfully, the creditor can no longer receive these benefits unless all owners are responsible for the debt.

eggbox

Linda3

Sorry to hear your predicament.

Any creditors will have to make a claim against your Husband's estate which I would advise you seek professional advice on to ensure you are protected.

Sparklyfairy

That's good to learn the history on that, Egg. Seems one of the only time a debtor's stance has been protected by the courts! Pre 1979 I wonder if those charging orders were from secured debts or both secured & unsecured as it is now.

eggbox

Sparkly

They would be unsecured debts as secured debts don't need a charging order as they are, by their very name, already "secured"

This wasn't pre 1979, either, this was right up until October 13th 2003 when the LR changes came into force.

Sparklyfairy

Of course, Egg - thanks for clarifying!

Sparklyfairy

Bump! People giving out rubbish info re restrictions is utterly frustrating! Wish sometimes this thread was a mandatory read...

dawnyp64

hey everyone!!..how are you all??...sorry i havent been on,but im back at work,and oh my days,dont i know it!!

I see youre still trying to sort out the whole restriction issue..will it ever be clear cut?not sure ,if solicitors get their own way as did mine and my buyers.
really hope someone can point Linda in the right direction (Eggbox?lol)..what a terrible situation to be in..Im sure there was something on here re a deceased debt..want to wish her all the best!

Also, Eggbox..i havent forgot about the complaint re the solicitors used in our case..but i will have to find time to dig EVERYTHING out and put it in order..

Hope youre all well,and keep smiling:beer:

eggbox

Hi Dawny, glad to hear you are well!

Re your Solcitors complaint, I have written to the SRA to ask them to confirm Solicitors legal obligations when acting for clients when selling/buying properties with a Form K Restriction. I will update when having received a reply?

I did, previously, email them and I had a standard "we can't give out advice" reply (which was the same with the LR when I wrote, too?) but with a little persistence (and correct wording) they are obliged to state the law on this.

So we will see what they come up with??

muggers1_2

The court hearing to get the restriction in place, do all parties have to be informed this is taking place and be invited to attend. As we didnt have a clue and have just recieved the land registry papers through???

eggbox

muggers1

Anyone with a financial interest in the property should be notified of a FINAL Charging Order hearing to enable them to attend and raise any objections they have.

However, what you may have received is a notification of an INTERIM Charging Order for which no hearing is required. This allows the creditor to place a Restriction on the property to notify that a CO is being pursued. So I should check that detail first?