Charging Order? The myth

Sparklyfairy

eggbox wrote: »

Just so we understand our current Governments thinking, the DoJ has already paved the way for CO's to be allowed even where an installment order is in place (as from October); and next on their list is 3rd Party Debt Orders. Currently creditors can only put an order on solely owned accounts but they are making plans to widen the accounts creditors can freeze in order to gain repayment. You have been warned!

Egg, can you please embellish this? What exactly do you mean when you say "Currently creditors can only put an order on solely owned accounts but they are making plans to widen the accounts creditors can freeze in order to gain repayment." Sorry to dumb things down, but does this mean or partners credit or debit accounts?

eggbox

It would appear so. The term they use is to "extend the range of accounts to which they (3rd Party Debt Orders) will apply"

They exclude trust funds, but it looks like everything else will be fair game. Whilst it's only in a review stage you can bet your bottom dollar that, like CO's soon to be attainable even where an Installment Order is in place, it will follow.

Non_Serviam

eggbox wrote: »

I'm assuming the search here is because you have a Restriction showing at the LR (you haven't explained your situation?) But it's doubtful you will find anyone passing on a conveyancer's details on here as those who have sold, sadly, don't seem to return to the board anymore?

Is the purchaser requiring a mortgage or is it a cash sale?

Yes to the mortgage question, and yes to the restrictions (plural). It's all very complicated and messy, and I definitely need specific, professional advice.

eggbox

The problem will arise that the Mortgage company will want the Restrictions removed. You have to get in first with the information given on this thread that Restrictions only require notification by the purchaser (to the Restriction holder) to allow a new registration of ownership to occur at the Land Registry.

My personal advice is that once any objection is raised you insist they contact the Solicitor at the Land Registry for verification of the differences between an Equitable Charge Charging Order (on solely owned property) and a Form K Restriction on Jointly owned property.

Don't expect an easy ride but do remember your Solicitor chosen is being paid to protect YOUR interests so make sure he/she understands that.

FBaby

Another question Egg in regards to the interest attached to a CO. As we have assessed, the LR have attached a CO to my now singled own property for a previous debt attached solely to my ex, all this wrongly it would seem.

However, assuming somehow they is a loophole and a judge would deem that this had been applied fairly, shouldn't I be expected to receive statements etc in regards to the interests? I have never received anything or heard from Egg about this charge. Do you think it is because they themselves realise they really can't be chasing anything from me now that the house is solely under my name despite the CO?

I have to say part of me is reluctant to do anything on the basis that it could start things rolling (ie. Egg starting to play dirty business) when all has been so quiet, considering that I really have no intention to sell the house anytime soon. My concern though is if they could somehow gain cause and request that I sell the property in some years time whilst interests have accrued years on years hence having to repay an even large sum than the initial CO (it's been 7 years already).

eggbox

FBaby

Firstly, EGG aren't thinking anything about this CO because they believe they have an Equitable Charge on your property and will be repaid when the house is sold.

But (just to double check!) You are saying that EGG pursued a CO against your ex (who was the sole owner of the debt) and they were granted a CO against your property whilst he was STILL registered as part owner at the Land Registry? If that is so; then the Courts have made a mistake as an Equitable Charge for a CO cannot now be attached to Jointly Owned property. You, therefore, need to write to the Courts and explain what has happened and to have the matter corrected.

Also, when you checked at the LR regarding the CO did you double check that your Ex's details had been removed? Because if they have I can't see how they can re-attach a Restriction to your property as the person it would be against has no Beneficial Interest anymore. But you need to sort this out now as the longer time goes on the more difficult it may be to put things right.

sampete

eggbox wrote: »

The problem will arise that the Mortgage company will want the Restrictions removed. You have to get in first with the information given on this thread that Restrictions only require notification by the purchaser (to the Restriction holder) to allow a new registration of ownership to occur at the Land Registry.

My personal advice is that once any objection is raised you insist they contact the Solicitor at the Land Registry for verification of the differences between an Equitable Charge Charging Order (on solely owned property) and a Form K Restriction on Jointly owned property.

Don't expect an easy ride but do remember your Solicitor chosen is being paid to protect YOUR interests so make sure he/she understands that.

Given how difficult it seems to find a clued up conveyancer on these matters. Are you saying that it is only necessary for the purchasing conveyancer to be clued up on the restriction issue and issuing the necessary information to the restriction holder? Thereby, obviating the need for the selling conveyancer to be clued up aswel. I was under the impression that both sides had to have the necessary experience and knowledge.
If this is the case, it is one less problem to encounter.

eggbox

Sampete

As I see it, getting your own Solicitor on board is the easy part. Simply because if (after explaining a Restrictions powers) he won't do as you ask you go elsewhere.

But the purchasers Solicitors (who you can't change) will probably want to err on the side of caution and insist (initially) on the Restrictions removal to cover their own 'arris. So, given the purchaser will be keen for the sale to proceed, it's their conveyancer you need to work on to get them to understand there is no need for the Restriction removal as the LR will verify it will fall away on completion (given the Form K instructions have been met)

sampete

eggbox, many thanks for your explanation. Makes a lot of sense.

sampete

FBaby

Firstly, EGG aren't thinking anything about this CO because they believe they have an Equitable Charge on your property and will be repaid when the house is sold.

This property is now rented, so surely, if they thought they still had a claim on the property, they could request the sale now? Would they ever investigate changes of circumstances, or are they happy to wait many many years for a potential sale? (at the moment, I intend on keeping it forever!)

But (just to double check!) You are saying that EGG pursued a CO against your ex (who was the sole owner of the debt) and they were granted a CO against your property whilst he was STILL registered as part owner at the Land Registry? If that is so; then the Courts have made a mistake as an Equitable Charge for a CO cannot now be attached to Jointly Owned property. You, therefore, need to write to the Courts and explain what has happened and to have the matter corrected

That is absolutely correct. At least I assume the error was at that stage rather than an error from by the LR. I have never seen the court transcripts, I wasn't even asked to attend court, I only find out about it accidently from my ex. Just to add, this was in 2005, although I don't think it makes a difference.

Also, when you checked at the LR regarding the CO did you double check that your Ex's details had been removed? Because if they have I can't see how they can re-attach a Restriction to your property as the person it would be against has no Beneficial Interest anymore. But you need to sort this out now as the longer time goes on the more difficult it may be to put things right.

Yes, ex details are definitely removed from the deeds, but CO remains. I am a bit nervous doing things myself, would prefer to go via an experience solicitor, but as it's been stated here, not many seem to have a sound legal understanding of it all (my solicitor who actioned the transfer should clearly have picked up the error but didn't). Your help has been so valuable in understanding that much though, I am really grateful as I feel I could at least get some feel that the solicitor I approach has some understanding of restriction/CO rules.