Charging Order? The myth

Land_Registry

eggbox - not a question of having to bear with you at all as this is a very interesting/useful thread/forum to be involved in.

The difficulties we have is that the land registration aspects are just one part of the process around COs. The law is very complex around such things and whilst we will have legal expertise that knowledge and experience is employed for Land Registry purposes.

We will often seek to assist individuals where we can and especially with regards specific titles but the reason ambiguity can exist is that the areas on which advice is being sought are not specifically within our remit. As a result we must use terms such as may affect or may result in as the legal aspects involved are not matter of land registration but are points of general law, such as how joint tenancies are severed and so on.

On the latter point I suspect many people turn to Land Registry for advice as the form A restriction is seen by many as being the Yes or No indicator around such things. And as oyu know from PG18 that is not the case.

Ultimately therefore we can provide direct answers to direct questions about land registration processes and policy but we cannot do the same for wider questions.

Our legal system is such that it is always recommended that those wider legal questions are best put to a legal professional employed by the questioner to provide such advice.

Naturally we will continue to participate in such forums and, like you and other posters, proffer advice where we can with the caveat that it is simply that and that our advice is as valuable as anyone else’s – ultimately of course it is the law and the courts though that have the final say.

I know you will appreciate the above from your previous posts and hope I have not over-stated the issue for you.

FBaby

I just wanted to stop and say a big thank you again to Egg and LRR for all their shared information on this forum. Your input is incredibly helpful and valuable.

harisumo

I agree with comments above and have followed the thread for some time due my own circumstances. Have been confused with last few posts though and have tried to look up a summary what a Form A restriction but can't find anything, would be very grateful to be enlightened.

eggbox

Hi Harisumo (and Fbaby!)

Prepare to be even more confused! Had a member of CAG email me this morning that he contacted the Land Registry in April asking if a CO against one owner severed the Joint Tenants agreement. The response was the following;

Thank you for your enquiry dated 18 April 2013

The answer to your question is no, a Tennant’s in common restriction and a charging order restriction are two separate entries, the register would still remain as joint tenants when a charging order restriction is on the register. I have included below our Public Guide 18 Joint Property Ownership and Practice Guide 76 Charging Orders which may be of assistance to you:-

http://www.landregistry.gov.uk/publi...ublic-guide-18
http://www.landregistry.gov.uk/profe...ctice-guide-76 "

The confusing thing is in the info he/she provides, and as I've pointed out above, PG18 states at Section 3.4 that a CO does sever the agreement? Hopefully LRR will be along shortly to comment!

eggbox

harisumo wrote: »

. Have been confused with last few posts though and have tried to look up a summary what a Form A restriction but can't find anything, would be very grateful to be enlightened.

Have a look HERE in Section 3

harisumo

Thanks Eggbox I have had a quick read will need to read again to see if I can digest it a bit more, some of these Government publications might as well be written in a foreign language as they are so hard to follow and understand, I think I can only cope with very plain English!

Land_Registry

eggbox wrote: »

The confusing thing is in the info he/she provides, and as I've pointed out above, PG18 states at Section 3.4 that a CO does sever the agreement? Hopefully LRR will be along shortly to comment!

eggbox - at first glance it can appear confusing but the key thing here is that whilst the CO may sever the agreement that does not mean that it is automatically reflected on the land register. If that severance is to be registered then an application must be made to do so, as mentioned in my earlier posts.

Whilst that may appear confusing or even odd we should return to the important point made in 3.3 of the PG18.

I suspect the wider issue around form A comes as a result that it is a restriction which can arise in a wide number of circumstances and not simply to do with COs. There can be several reasons why a form A restriction might be registered e.g. a genuine 60:40 split; someone holding the property in trust for children under 18; a CO against one of joint proprietors BUT only one form A restriction will ever be registered. You can't have one for each scenario and that has always been the case.

The PG18 is written for the public but naturally it refers to technical/legal points. The current basis for joint tenancies lie in the Law of Property Act 1925 section 36 and understanding that does require a legal mind.

I totally appreciate the difficulties associated with not only COs but the wider impact on such things as joint tenancies. As mentioned earlier the Land Registry cannot though advise on matters beyond our remit and any advice we can provide as a result has to be limited to the guidance we supply in our PGs - a fuller understanding should be obtained from reading and appreciating the legislation involved and as appropriate legal advice sought.

harisumo - taking into account the legal aspects around the subject we do try to write our guidance in Plain English but fully appreciate that in trying to balance that with the legal requirements can sometimes lead to confusion. If there are any areas of the guide which you feel could be improved upon then please do let us know either here or through the Contact Us part of our website. It may lead to changes to the PG itself or indeed more FAQs which use the terms and language on forums such as these to try and balance things as well.

eggbox

Land_Registry_representative wrote: »

at first glance it can appear confusing but the key thing here is that whilst the CO may sever the agreement that does not mean that it is automatically reflected on the land register. If that severance is to be registered then an application must be made to do so, as mentioned in my earlier posts.

I understand this point, but does not registering the severance have any effect on the legal ownership status of the property as far as the Land Registry is concerned?

ie; if no application is made to register the severance then, legally, the owners are still Joint Tenants regardless of the CO granted?

Land_Registry

The key eggbox is to understand when the form A restriction comes into play as far as the legal title is concerned - there are some similarities with the form K restriction which this thread has visited many times i.e. it only comes into play at certain times and does not act as a blanket restriction on the legal title.

From the legal title angle if both owners are alive and dealing with the title (selling, mortgaging or leasing the property for money being the main three) then whether the form A restriction is there or not on the legal title is probably irrelevant for the purposes of that transaction

IF the sole survivor sought to deal with the legal title e.g. the other has died then the restriction comes into play as they cannot 'give a valid receipt for capital monies'

Your last question has already been answered above and in PG18, namely the law splits the property automatically . That event is not dependant on someone obtaining a CO against one of joint proprietors and then applying for a form A restriction

eggbox

Hi LRR

Thanks again For the response.

I do just have to ask again what your colleague meant in his reply when he stated that,

"the register would still remain as joint tenants when a charging order restriction is on the register"

If the law has split the property (PG18) and the LR is aware of that as the Form K has been registered, why would joint tenants remain?