Charging Order? The myth

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  • torty
    torty Posts: 58 Forumite
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    blueback wrote: »
    I absoloutely agree immoral_angeluk and on every occasion I have advised that viewers should get proffessional advice on this.

    The difficulty is that many Conveyancors do not understand the regulations - they need to be shown!

    The proof will be when others that have contacted me with successes

    BB
    thanks bb, just a little more info now on my poo thats going on, after being forced from my home, jointly owned, all my debt, 2 co for 13k, she contacted them to try to get reduction, which she got,, but this alerted them, it now turns out after latest valuation we have circa 14k equity, her business partners have offered to buy at 10k less than valuation, and considering i hate them with passion not prepared, my solicitor seems to be a waste of space, she is adamant that my half of equity wil go to clear off co which have been offered at reduced price, maybe thats becuase as you say they can do nowt as long as wea ct in timeframe, i am going to show her some of the posts and copy and paste into e-mails for her to peruse. any ideas where i stand as to her contacting co beneficiaries and offering payment, as they belong to me and not her, can anything be done about this. next time we talk, maybe we can put a step by step guide in place to help me and others, as lots of legal jargon. and thanks
  • Angel.Eyes_5
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    blueback wrote: »
    I absoloutely agree immoral_angeluk and on every occasion I have advised that viewers should get proffessional advice on this.

    The difficulty is that many Conveyancors do not understand the regulations - they need to be shown!

    The proof will be when others that have contacted me with successes

    BB
    Hi BB
    I have to thank for your thread on this subject. After reading endless list of informative sites about charging orders, this thread realy made me realise the true situation. You're absulately right, I too found out that conveyancors, solicitors don't know too much about charging orders/restriction orders. I received a B136 CO notice from land registry last friday. Our home is jointly owned, but debt was my husband's alone. We are in divorce proceedings, I live in the house with our children. I wanted transfer of equity to me, so we can achieve a settlement, he gets his 25% when children are grown up. But I was told that with this order, we could not do transfer of equity. My solicitor told me His creditors put a restriction on the property,they wouldn't allow him to dispose his share of the property...etc. My solicitor, and barrister's only advice was that I pay his debt off, only then can we do the transfer of equity. Now reading this thread, I am wondering if I need to do that at all? Can we not just go ahead with transfer of equity, and remortgage? We are not selling the property, he is transfering his equity over to me, so the property will be solely under my name as part of the divorce settlement. Where do we stand with transfer of equity?????????????? I am so confused.

    Angel Eyes
  • ainsleyharriott666
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    Angel.Eyes wrote: »
    Hi BB
    I have to thank for your thread on this subject. After reading endless list of informative sites about charging orders, this thread realy made me realise the true situation. You're absulately right, I too found out that conveyancors, solicitors don't know too much about charging orders/restriction orders. I received a B136 CO notice from land registry last friday. Our home is jointly owned, but debt was my husband's alone. We are in divorce proceedings, I live in the house with our children. I wanted transfer of equity to me, so we can achieve a settlement, he gets his 25% when children are grown up. But I was told that with this order, we could not do transfer of equity. My solicitor told me His creditors put a restriction on the property,they wouldn't allow him to dispose his share of the property...etc. My solicitor, and barrister's only advice was that I pay his debt off, only then can we do the transfer of equity. Now reading this thread, I am wondering if I need to do that at all? Can we not just go ahead with transfer of equity, and remortgage? We are not selling the property, he is transfering his equity over to me, so the property will be solely under my name as part of the divorce settlement. Where do we stand with transfer of equity?????????????? I am so confused.

    Angel Eyes
    Hi Angel.Eyes,

    I read your post with sympathy, I've recently gone through something very similar to yourself, and may have some advice. Like the other posters on this thread, I am not a solicitor so you should seek legal advice to clarify what I am saying, although I'm sure I'm correct here.

    My situation differs as the reason for wanting to transfer the equity was different. I was trying to sell my property with a restrication applied in my housemates name only (and the with the property in both mine and my housemate's name), with the hope that (as described in this post) the restriction would become void on completion.

    However, in reality, this is indeed at the discretion of the purchaser's solicitor...they can still choose to prevent the sale at this stage as the request to lift the restrication has to be done AFTER completion (using land registry form RX4). For a long while, the purchasers solicitor was refusing to do this without the restriction being removed before we exchanged contracts (as, as blueback describes, he didn't fully understand the law on restrictions in a sole name for a property jointly owned).

    Luckily, my solicitor (with written confirmation from the land registry) was able to convince the purchaser's solicitor otherwise; and we should hopefully be exchanging next week; mainly thanks to the advice on this forum. Yay!

    Anyway, back to the Transfer of equity. I was considering a ToE at the point that the purchasers solicitor was threating to refuse the transaction, and have some bad news. The rule where restrictions like these can be lifted after completion with land registry form RX4 applies ONLY for what are known as "arm's length" transactions...these are transactions where the property is disposed to someone with no previous interest in the property. So, I think that in this case this rule is not applicable.

    Can anyone confirm this?

    Sorry to be the bearer of bad news. Hope you find another way out of this situation.
  • thacky
    thacky Posts: 131 Forumite
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    Hi Blueback
    Wish I'd known all this in 2005! My ex had achieved a CO against our still (at that time) jointly owned house and I'd put off trying to sell it for ages.

    Circumstances changed, the house was to be sold to our daughter and when I told my solicitor about the CO he immediately said that it was not a problem, that the Land Registry would remove it and so it turned out. I don't know the legal background from the solicitor's point of view but the whole thing was easy peasy as far as the rest of it went.

    Reading this thread, it would seem that I was extremely lucky in my choice of conveyancer and his knowledge of the law. :)
  • thacky
    thacky Posts: 131 Forumite
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    Angel Eyes - I'm wondering now about your transfer of equity. My husband's equity went to our daughter in the form of her deposit for the house purchase, he took no actual cash from the sale at all. I daresay his creditor who took out the CO had no knowledge of this but I wouldn't know and this was certainly not a case of 'at arms length'.
    Certainly the restriction was removed anyway and no longer exists.
  • Angel.Eyes_5
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    After having read Thacky and other's own experiences with CO and restrictions on property, I am a little hopeful that we might be able to complete the transfer of equity and remortgage. I still need to get answers though as I am not actualy selling, if this rule also applies to TOE too. I have remortgage offer under my sole name already, just awaiting the ex to sign the Transfer of Equity. My mortgage broker checked the land registry yesterday, and he says there is no charge against the property other than my existing mortgage. I am assuming that is because land registry gave us 3 weeks to object to the retriction application, which will end next week! I have not yet send in my objection as I didn't think it would make any difference. The charging order final hearing is listed for mid JUne. Land registry states I can still deal with the property but as long as I meet the conditions set...I called the Land Registry, but the lady there was totaly uninterested to help.Is there anyone who completed a transfer of equity to other joint owner whilst there is a restriction applied on the property?
  • lolalolalola
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    blueback wrote: »

    The restriction which can be entered on the register where a charging order is made against one of joint proprietors is in the following form ...

    Please where did you quote this from ?
    Debtline know nothing of this and are asking what your source is please
  • Angel.Eyes_5
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    I thought I just drop a quick line to tell others what happened to my transfer of equity dilemma. My ex husband received a retriction order against our jointly owned property. The debt was in his sole name so the charging order was against his share only. As part of the divorce settlement, he was to transfer his equity to my name. I was hoping that TOE would be possible without paying his debt off. I had a very helpful conveyencing solicitor who tried very hard to resolve this but at the end it wasn't possible to transfer the equity & remortgage purely because property was not being transferred to a 3rd Party. If I was selling the house, it would have been just fine, we would not be obliged to pay them anything and the restriction would fall away. As for me, at the end I negotiated with the bank and they accepted my offer with 65% discount, I paid off my ex's debt, only then we went ahead and completed within a day. So what I know for sure is, if the charging order is registered as restriction in the Proprietership register, then you can sell and go without paying them a penny. Restriction is not in the charges register, so it won't matter. But the transfer of the deeds must be to a 3rd party. In my case it wasn't, because I was taking over my ex's equity. Hope this helps others in similar situations..
  • lolalolalola
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    Thanks for that info, it's strange that National Debtline and Payplan are unaware of this important technicality to the CO ??
  • Angel.Eyes_5
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    Yes, you're right, in the start I called a few of them myself..and they all told me that if they achieved a charging order against the property, then we have to pay them in full when we sell, as if they have a 'legal charge' like a mortgage..They don't give the correct advice.
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