Charging Order? The myth

eggbox

The problem is your Solicitor not being clued up on the differences between a CO on Land or Beneficial Interest. On BI (or equity) there is only a Restriction registered at the LR and if a sale is made (as a Solicitor from the LR has confirmed) the LR are not prevented from changing the LR details for the new owner provided the Restriction holder is notified (and that can be after the sale is made!)

With regard to the RX forms, they are only relevant if you wish to stay in the property and want the Restriction removed and would then need the Creditors permission (presumably after being paid off). If you sell and move on, however, you have no BI interest in the property any more and the Restriction has to be removed by the LR as it becomes "over reached".

Tell your Solicitor to deal with the Solicitor for the LR at Stevenage and not just the first person who picks up the phone at the LR!

Gimbal

eggbox wrote: »

The problem is your Solicitor not being clued up on the differences between a CO on Land or Beneficial Interest. On BI (or equity) there is only a Restriction registered at the LR and if a sale is made (as a Solicitor from the LR has confirmed) the LR are not prevented from changing the LR details for the new owner provided the Restriction holder is notified (and that can be after the sale is made!)

With regard to the RX forms, they are only relevant if you wish to stay in the property and want the Restriction removed and would then need the Creditors permission (presumably after being paid off). If you sell and move on, however, you have no BI interest in the property any more and the Restriction has to be removed by the LR as it becomes "over reached".

Tell your Solicitor to deal with the Solicitor for the LR at Stevenage and not just the first person who picks up the phone at the LR!

Thanks for the quick response.
I have asked the buyers solicitors if they will contact the LR solicitors in Stevenage and as long as this can be confirmed (which I'm sure it will) then I should be all good to go.

This forum has been a massive help and I will update my experiences in the hope it can help others.

eggbox

No problem and you can let your solicitor know the following which is repeated verbatim from the LR Solicitor;

"The provision of the certificate mentioned in the Form K restriction means that the registrar is not prevented from proceeding with the the application to register a disposition (for example, a transfer or charge) and that the registration can proceed.

The certificate does not affect the restriction entry. A restriction in Form K may be removed from the register in the following circumstances.

Automatic Cancellation

When a transfer of property is registered (following the receipt of the required certificate), the restriction may or may not be cancelled, depending on the circumstances of the transfer. by two or more proprietors to a third party sale for value, the trust interests will be overreached and the form K restriction will usually be cancelled.

Application to cancel in form RX3

If the charging order is discharged by the court, or if the debt secured by the charging order is paid in full, or for any other reason the restriction is no longer required, application may be made at any time to cancel the restriction. If such an application is made, notice will be served on the restrictioner and the restrictioner may object to the application. if the application is not groundless, and the parties cannot come to an agreement, the dispute will be referred to the Adjudicator for determination."

Further, on explaining what the Form K wording means,

"This means the Land Registry will not register a transfer or charge (for example) unless the applicant for registration confirms that they have given notice of the transaction to (name of creditor). What the interested parties do at this point, or what (name of creditor) does as a result of the notice is not, of course, a matter for the Land Registry."

Which, as she will be able to understand, is confirmation that there is no obligation placed on anyone to get the attached CO paid off before a sale can proceed.

You should also ask her why, as a Solicitor being paid to protect YOUR interests, she is contacting your creditors trying to pay them money due to you from the sale when there is no legal obligation to do so?

Gimbal

I've had a massive leap in the right direction.
All thanks to you guys.

My ex contacted Shoosmiths directly and told them if what I had told her.
She was told that yes, I was right, and that there was nothing they could do to stop the sale and if she wanted to sign the papers agreeing tot he sale then she should.
She did and they are waiting for my solicitor on Monday morning.

It was too late to contact my solicitor on Friday afternoon so I contacted the buyers solicitor and told them to contact the LRs solicitors in Stevenage to get conformation.
They replied that they were sure that the LRs solicitor would confirm it so there was no point. But could I get the OK from Shoosmiths in writing.
I asked why on earth they would need it and went on to explain it all again and it all went quiet.
I don't think they will ask me for it again.

I now await to speak to my solicitor on Monday morning to confirm that she is going to get things moving although I'm pretty sure I have put her nose out of joint by explaining how it all works.

I'll update more as I move onwards.

maz1964

Good luck gimbal and thanks for your updating its real life events like this help others like me face things knowing we are not being hoodwinked by certain people so huge thanks,

well knowledge is power as they say lol so your right to say what you know - fab

take care have a fun weekend ciao maz:beer:

eggbox

Gimbal wrote: »

I'm pretty sure I have put her nose out of joint by explaining how it all works.

It's not so much a matter of how it works, its a matter of her understanding that, as your representative, she should be aware of how she should be trying to safeguard your interests.

stillkicking

Hi,

I have been sent papers from the land registry that irwin mitchell have applied for a restriction against the land. this is for a debt with natwest/rbs for a creditcard,loan and overdraft. this debt went to court and I was given a ccj and orderd to pay a small amount about £20 / month i think it was around 2006 / 2007 so it will be coming up to 6 years soon. the property is jointly owned but it is in negative equity. what would happen to the restricition if no profit is made after selling the property? are they allowed to do this if the payments are being made? I have got several companies that I pay debts too including another ccj what would there take be on it?

should i object or just let things be

I might ask iw for the paper work for the debt. if they havent got it do i have to pay it?

any info would be great

eggbox

If you sell your property in a Negative Equity situation then the Restriction is of no use as you have no Beneficial Interest (equity) against which it was made. The original CCJ is still in place, however.

Regards Charging Orders, there were changes made in October 2012 which you can look at HERE and see what the situation is for you in the section that explains the changes

miekaj05

Hi All, first time posting here but have read the thread with great interest. It's so good to see that people are winning against the banks and creditors!! Well done to those that have and good luck to those that will.

I could really do with some advice as I am beginning to get anxiety attacks over my situation and how to proceed.

I have was granted my decree nisi in September (16 yr relationship in total of which married for past 5 years) and wish to keep the marital home. My ex has said I can have the house but there are numerous issues that I need to clarify in order to make an informed decison. I cannot afford £200 an hour for my soloicitor anymore and I am hoping someone maybe able to give me some advice.

My mortgage company have said they will not let me do a transfer of equity (or any sort of transfer) into my sole name even though I have been paying the mortgage by myself for almost a year now. They said because I took the mortgage out in Jan 2004 I have an unregulated mortgage and that they cannot do anything with it. I know the FSA began to regulate mortgages in Oct 2004 and had I taken out the mortgage after then it would have been possible.
So, I know I cannot just get his name off the mortgage and would likely have to remortage to do this but this is where the trouble kicks in. The mortgage is in joint names (tenants in common) but my ex has 34k of charging orders on the house in his name only and another one shortly going to court to be placed on for another 7k. I know through this forum that are definately restrictions on his beneficial interest and not mine and that if I decide to sell I only need notify the creditors of a sale. Thats the easy bit!

This is where it hgets complicated!

When we bought the house we were give a 25% open market homebuy deposit to buy our house. It only becomes payable if the house is sold and the housing association will take back 25% of the overall profit of the house ( the scheme was run back in 2001).

To get the house into my name and remove all the charges and pay off the homebuy element will cost 223k and probably at 5%+ interest rate ( I currently pay only 1.75%). I am not allowed to take any further lending to pay off the charges as this is one of the clauses of the homebuy scheme. All further lending has to be for home improvements only and a deed of postponement put in place for it to happen. My house is worth around £260,000.

My ex got over a 100k payout in 2011 and did not pay off the debts and has always ducked and dived to avoid paying his debts (he's very good at it, making promises to pay and strings the creditors along for years!) He now owns his own business and rents his living accomodation. I have told him I would not go after any of his assets/cash and know now that it will cost alot in solicitors fees to get a fair settlement in light of all his debts etc. I suspect that I could end up having to pay him!! He took a lump sum from his pension and got a severance payment.

My daughters( both over 21) have had to move back with me aswell and one of which has my two young grandchildren so I know an order for sale (whilst rare) would not be considered by a judge as it is the kids only home at the moment.

To go any buy somewhere else in the current market knowing that I have this beautiful home breaks my heart and I realise it would be the easiest way of getting a clean break and moving on but before I do that I want to explore every avenue in trying to keep my house and get his name off it totally before I end up loosing it because of his debts or there is no equity left.

Any help or advice in how I sort out this mess would be really appreciated.

Thank you.

Gimbal

eggbox wrote: »

It's not so much a matter of how it works, its a matter of her understanding that, as your representative, she should be aware of how she should be trying to safeguard your interests.

And I think that she still doesnt/isnt.

Have just had an email saying
From my point of view the only way to progress this is to have [my ex] fill in the form that Shoosmiths sent me with their letter that arrived on Friday which will allow Shoosmiths to establish whether they are willing to take an offer from [my ex] and release the Restriction on the legal Title to [my house].

I have AGAIN had to explain that there is no need for this as there is no legal responsibility to make any payments on the sale of the house, only to inform them once its done.
And again i have pointed her in the direction of the Land Registrys solicitor in Stevenage.

Its not like she has to take my word for it.
I've provided plenty of evidence to support what I've told her.

I wont give up though.
even if it does feel like I'm banging my head against a brick wall.