Nobody can help! Removing restriction from house deeds

Morgan148

Hi, I’m looking for some help regarding my moms house. In 2002 my dads company went into liquidation as he had had a severe head injury and was no longer able to trade. My mom and dad have decided to sell their house now as they are downsizing, however the solicitor has sent deeds to mom stating that there is a restriction that was lodged by my dads former solicitor in 2003. The solicitor in question no longer exists and we think the solicitor himself is either long retired or deceased. The court judgement in question we have applied to have it sent to us from land registry which we now have, it was dealt with years ago and they no longer owe the solicitor however land registry want evidence that it no longer exists ideally from the solicitor they used to have, this isn’t possible. We have spoken to the court in which it was initially lodged and they have no record of it anymore or we have the wrong reference number which they said the solicitor should have, they don’t exist we have explained so spoke to citizens advice who were unable to assist and have recommended legal advice, have spoken with solicitor that is selling moms house and she said she can’t help with this kind of thing. Really are at a brick wall no one can help, has anyone any idea or have dealt with something similar? We can’t send RX3 without evidence but nobody can tell us how we are meant to obtain said evidence!

DCFC79

Maybe you need to lodge a complaint with the land registry, complaints procedure is on gov.uk site.

Skiddaw1

Any idea how and when the debt was settled? Just wondering if you could obtain copies of your father's bank statements covering the relevant period for example.

bouicca21

I think you need to contact the Solicitors Regulation Authority
https://www.sra.org.uk/consumers/problems/solicitor-closed-down/

Morgan148

Thanks for quick replies!
That’s a good idea about the complaint, they are the ones that need the evidence yet they can’t tell us what we actually need and where to obtain it from.
In terms of the bank statements it was all 18 years ago and he suffered memory loss and was in a coma throughout this. The debt Itself was written off (sorry if I didn’t make that very clear) but no document or proof of it actually exists from what I can see we need a certificate from the solicitor stating they no longer require the restriction which we aren’t able to obtain.

xylophone

but no document or proof of it actually exists from what I can see we need a certificate from the solicitor stating they no longer require the restriction which we aren’t able to obtain.

See suggestion in post 4.

AdrianC

So the debt was to the solicitor themself, not just placed by the solicitor in favour of somebody else?

And there's no paperwork to say the solicitor doesn't wish to enforce the charge any more, or any to say it's been paid (because it hasn't been)...?

I'm not surprised nobody wants to remove it! The debt is still owed to the creditor - or, if they're deceased, to their beneficiaries.

How much are we talking?

NewShadow

AdrianC wrote: »

So the debt was to the solicitor themself, not just placed by the solicitor in favour of somebody else?

And there's no paperwork to say the solicitor doesn't wish to enforce the charge any more, or any to say it's been paid (because it hasn't been)...?

I'm not surprised nobody wants to remove it! The debt is still owed to the creditor - or, if they're deceased, to their beneficiaries.

How much are we talking?

If they wanted to pay the debt then they'd need to track down the creditor... A solicitor could probably track down the original court records - for an appropriate fee - and the OP can confirm if the charge should have been removed or is still active.

OP - Section 20 of the Limitation Act 1980 prevents the commencement of any action to recover money secured by a mortgage or other charge on a property after 12 years have elapsed following the date on which the right to receive the money accrued - that's why records of charges are only held by the LR for 12 years and why a complaint to the LR isn't likely to get you very far.

Before you get excited - That 12 year threshold doesn't remove the charge - it simply makes it harder to track down the details.

Yorkshire Bank Finance Ltd v Mulhall - C/o legal beagles - established:

In Mulhall, the defendant had guaranteed a company loan by the Bank. The company defaulted and the Bank demanded payment from the defendant under the guarantee. Judgment in default was obtained against her and a charging order in respect of the judgment was secured on her property. The Bank did nothing to enforce its security for 16 years, at which time the defendant applied to set the judgment and charging order aside on the basis of the Bank's delay in enforcement which meant that they had no continuing right under it by reason of the lapse of time. She argued that the charging order was statute barred under s20(1) Limitation Act 1980 which provides for a 12 year limitation period for any action to recover "any principal sum of money secured by a mortgage or other charge on property".

Refusing the defendant's appeal, the Court of Appeal held that S 20(1) does not apply either to the making of the charging order nor to any of the normal steps by way of enforcement of it. The charging order provides security for a judgment debt and judgment debts are, on the whole, outside the scope of the limitation legislation. A charging order gives the judgment creditor the rights of a secured creditor which can not be defeated by a claim to adverse possession.

Different time limits apply in relation to a charging order as opposed to a legal mortgage. With a charging order, the creditor already has a judgment.

As stated by AdrianC - Without proof the debt has been satisfied/the creditor has given active consent for it to be removed - the charge remains and the onus is on you/your parents to track down the creditor or their estate before their sale can proceed.

Morgan148

It doesn’t specify, it just has the name of the solicitor on the house deeds themselves with a claim number for our local court when we have spoken to the courts they said this number no longer has any relevance and doesn’t exist. My
Mom called them again today and they asked again for the reference only this time the lady said this isn’t the right reference number you need to obtain it from the solicitor it was owed to which we can’t. I will obviously contact the SRA to see if we are able to obtain any kind of document. As I stated before we are going into this blind as mom had no dealings or knowledge of this and dad had memory loss so didn’t know about any of it, they didn’t know it was still there until they have tried to sell their house. All my dad can tell us is that he remembers something about a charge on the house but his ex business partner signed something so say it was quashed in around 2008 but as with his memory loss, he had no idea if this is true or where this document might be. It hasn’t been found whilst emptying the house anyway. I imagine it would have been legal fees as the business went into liquidation under agreement from both business partners

bouicca21

Morgan148 wrote: »

It doesn’t specify, it just has the name of the solicitor on the house deeds themselves with a claim number for our local court when we have spoken to the courts they said this number no longer has any relevance and doesn’t exist.

One explanation for this is that the court records have been archived and they have started a new series of filing numbers. It might be worth contacting the Ministry of Justice to ask about access to non-current court records.