Charging Order? The myth

eggbox

s.may

That's all the power of a Form K Restriction has. As a Solicitor from the Land Registry has confirmed; as long as the requirements of the Form K Restriction have been met (ie they have received confirmation that the Restriction holder has been notified of the sale by the purchaser or his agent) then they are not prevented from registering the new title and the Restriction is cancelled as it becomes "over reached".

FBaby

Hi eggbox I wrote on this thread sometime last year and you were extremely helpful. I haven't moved the matter forward but have now decoded that I needed to do something about my situation. To recap:
- partner ran debt with egg. We separated without me knowing anything about it.
-found out they were taking him to court for a charging order on our joint propertywhich he had vacated and I paid the full mortgage.
-I found out about it through his parents egg never contacted me directly
-I panicked and contacted them myself via solicitor for an offer which they refused.
-case went to court without me being notified officially of date. Charging order was granted.
-in the meantime I started the process for my ex to sign house over. This was shrewd by mortgage lender. His name was removed from mortgage and deeds however too late.
-confirmed that deeds are in my name only but charging order is stated on deeds.

From your help I understand that some errors were committed in the whole process:
-as joint owners the court should have ordered a restriction not a charging order.
-my solicitor should have informed egg of sale/transfer and the restriction should have been removed and not show on current deeds.

So now I am wondering what I should do:
- nothing and waiting to see if egg contact me? I don't intend on selling the property; I haven't heard from egg in 7 years and I can just battle it out if they do contact me or I decide to sell which is unlikely for some time.
-should I write directly to the land registry pointing the above errors and asking charging order to be removed? Do they have the power to do so?
-do I take the matter to court myself our via an experienced solicitor for the charging order to be removed as illegal in the first place?
-do I instruct my old solicitor to do so on the basis of their error?

I would be very grateful to know which step you would recommend eggbox. Thanks and good luck to the others with their own battles.

eggbox

Firstly you need to check with the Land Registry if there is a Charging Order or a Restriction registered. Given many Solicitors treat them the same you need to check yourself what is actually registered. If it is a Charging Order you will need to ask them how it could have been registered as such given you were a joint owner and also their advice to get it altered.

Check that first and let us know the result.

s.may

eggbox

wouldn't a sale infer that my father has received a sum of money as sale proceeds from the house, and that is in effect what the creditors will be pursuing once we inform them of the sale? Whereas a transfer just implies that my brother has taken over ownership as he is now paying off the outstanding mortgage that my dad can't afford?

eggbox

s.may

As I understand it, a transfer (especially to a relative) can be challenged by the creditor and the Land Registry also won't cancel the Restriction under these circumstances.

A sale for value, however, does not prevent the LR changing the details to a property as long as the Form K requirements are met. And, yes, it will indicate to the creditor that money has changed hands as that is the whole point of the Restriction. However, the difference is that there is no obligation placed on your Father to pay the creditor from any "proceeds" of the sale. So the creditor can only now chase their debt (if they still bother) with demands for repayment. They have banked on being paid when a sale occurs as Solicitors have been paying them off in the past. It will be a shock for them but there isn't anything they can do if a "sale" has occurred.

Remember that your Father's CO falls back to a CCJ when the sale is completed so the debt doesn't disappear. But his creditor is now limited in what they can do to recoup the debt and it won't be from the proceeds from the house.

yellowduck_2

Sparklyfairy wrote: »

Yellowduck, the debt Trident are chasing - is it a secured debt? If not, that makes me so ANGRY! That's illegal & an official complaint needs to be raised to the FOS.

no it is an unsecured loan. The charging order the means by which it could be turned into a secure loan, all this is legal I am afraid. I am just so appreciative of the depth of knowledge that Eggbox has and how much clarity he\she sheds on the current and proposed changes in the law. This thread has helped me sleep soundly again and I am very grateful.:T

FBaby

eggbox wrote: »

Firstly you need to check with the Land Registry if there is a Charging Order or a Restriction registered. Given many Solicitors treat them the same you need to check yourself what is actually registered. If it is a Charging Order you will need to ask them how it could have been registered as such given you were a joint owner and also their advice to get it altered.

Check that first and let us know the result.

thank you eggbox. I can confirm that it is definitely a charging order. I will therefore write to them directly. You are a star

Non_Serviam

Non_Serviam wrote: »

Hi all

Can anyone please recommend a conveyancer who understands the issues discussed in this thread?

Thanks and all the best

NS

Anyone?

eggbox

Non Serviam

Are you trying to sell your property?

Non_Serviam

Not "trying", no; I've agreed a sale on it. I'm looking for a conveyancer, please.