legal charge on property

novelli

I just had an interesting visit!!!

This man came to my door and said he had been trying to trace me for three weeks. He is from a solicitors office, breifly heres the situation.

about 25 yrs ago i entered into a joint mortgage with my then partner, i was pregnant with our daughter at the time. he tuirned out to be a rat, and did a runner before she was born. He ran off with someone else and they both moved into the house, the house was in our joint names so i went to a solicitor to see what i could do. From what i remember my ex had no funds so could not pay me off, so my name was kept on the deeds as an interested party in proceeds from the house were it to be sold.

Until now had forgotten all about it, but apparently the house has now been sold and i am due my share.
The solicitor is writing to me apparently on monday.
my ex hasnt lived in the house for many years, the woman he ran off with has (he married her but think they r divorced now).
I have no idea how all this will work, like what % i would get etc etc.
has anyone any experience of this sort of thing, (before i go out spending)!!! lol

jonesMUFCforever

If your name was on the deeds and no formal agreement was ever made as how to dispose of the property how does 50% sound?

However don't spend even a penny until you have the funds in your account as it sounds as the ex's wife will surely appeal.

novelli

So does that mean 50% of any profit???? we paid 22,000 for it 25 yrs ago!!!

As far as I know she has already moved.

No formal arrangements were ever made. I did lots of work in the house before THEY moved in and got a lot of the furniture etc. He was unable to get a mortgage without my name as well. I did all of the paperwork and dealing with solicitors etc at the time as he was away working a lot (well thats what he told me)!!!!

Am i going to have a battle do you think to get it??

The man who came today said this this was good news, i got the impression they already had the money, just that they couldnt find me!!! (they only had my maiden name to go on)!! as he is not the solicitor dealing with my case he couldnt tell me how much and didnt know what my % was either, all he wanted to do really was confirm this was my address so the other solicitor could write to me.

jonesMUFCforever

Well if your name is on the deeds and mortgage then they can't sell without your signature.

What might have happened is that the house might have been repossessed and sold to pay off the mortgage - the funds you are due now MIGHT be 50% of the surplus.
With house prices having rocketed over the last decade you might get a very nice sum!

Good luck and keep us informed.

StaceyAKelly

wow omg!! that sounds too good to be true. Just be careful though, lets hope theres not 22 years worth of interest that they are actually after lol, OMG or no re-mortgages in your name?? Sounds sooo unusual to me, crazy stuff, guess you will just have to wait and see, Keep us posted!

novelli

well hopefully its no nasty suprises as the man today did say its good news and theres def money for me. Now ive got to sit on it all weekend and wait till next week to find out!!:mad:

StaceyAKelly

Good Luck, didnt mean to sound like i was trying to worry you.

Got my fingers crossed for you xxx

novelli

Right i have finally had a letter from the solicitor.

it says its an equitable charge created by an order absolute dated 29 november 1985 in favour of myself.
it goes on to say as part of the ancillary releif proceedings in our clients (my ex's now ex wife), divorce it was agreed that our client would pay you the sum of £2,088.30 plus 984.86 costs and £37.00 fixed costs.
We do have a client ledger for this matter which shows that a payment of £2,988.60 was made payable to your solicitors on 24th July 1989.
Our client now wishes to sell the property and to so so requires your confirmation that the charge has been repaid, we propose to send u the relevant forms to sign confirming the charge has been repaid so the entry can be removed from the register.
it also says
Unfortunately due to effluxion of time the file dealing with this matter has been destroyed, we have contacted your solicitors who acted in respect of an order for sale who have been unable to assist us.

I dont remember ever agreeing to such a lowlty figure (or any figure)??
I have not been paid anything by the other solicitors??
I dont actually recall that my name was removed from the house deeds, or would that have been automatic due to the charging order?? It was a joint mortgage so presumably the house was in joint names?? is there anywhere i can search for who owns property???

any advice on what i should do now would be appreciated.
thanks
Assuming that the figure is correct, would i be entitled to add interest to that amount, i did a quick search on google and found this
That case was concerned with a claim by a creditor to recover interest on a judgment debt in respect of which judgment had been given in 1979 but no attempt to enforce it was made until 1993 by which time a substantial sum for interest had accrued due. The creditor subsequently obtained a Charging Order serving the judgment debt. There was no mention of interest or costs of enforcement in either the judgment or Charging Order. Mr Justice Carnwath held that the plaintiff was entitled to add judgment interest to the judgment debt but limited by the effect of Limitation to interest accruing over the previous six years and also the costs of enforcement. The court of Appeal upheld the Judges decision that interest could be added to the security conferred by the Charging Order but varied his judgment so as to remove the restriction on that interest to that accruing during the limitation period. In the Court of Appeal the case is reported at 1997 1WLR p340. In his judgment at page 346 Lord Justice Millet, having concluded that the effect of section 17 of the Judgments Act 1938 was that, for a judgment to carry judgment interest it is not necessary for the judgment specifically to mention interest which attaches automatically, and that therefore it is not necessary to mention interest in any Charging Order carrying the judgment into effect for such interest to be added to the security, continued:- "Section 3(4) of the Charging Orders Act 1979 provides that the Charging Order takes effect as an equitable charge created by the judgment debtor by writing under his hand. It must therefore be given the same effect unless the Act itself provides otherwise as would an equitable charge on the land in question to secure a stated principle sum but with no mention of interest. Such a charge would carry interest even though there were no words allowing interest on the charge itself. That was decided at first instance in re Drax... which was followed ... in Stoker v Elwell... . The defendant invited us to over rule Stoker...and re Drax although they have stood unchallenged for nearly a century.
His submission was founded on the well established principle that a Charging Order cannot be given except for an ascertained sum.... It is clear Law for example that a Charging Order cannot be made for untaxed costs. In the present case, of course, the costs were taxed. But it is said by parity of reasoning that it cannot be made to secure future interest since the amount of such interest cannot be ascertained in advance. However, the Charging Orders Act 1979 itself entitles the Court to make a Charging Order for monies due or to become due, and it appears to me that future interest at an ascertained rate (albeit a variable rate) from the date of judgment to the date of payment is an ascertained or at least an ascertainable sum for the purpose of the rule in question.

silvercar

I think you need legal advice on this.

My take would be that if the charging order was made it is likely that the house would have been put into your ex's ( ex's + new wife) at the time ie you gave up half the house in return for an agreement that you would receive XX when the house was sold. And that this amount of XX was registered in the form of a charging order. This would have happened in 1985.

Then presumably in 1989 your ex's ex took the property into their own name, but paid you off at the same time to remove the charging order. It seems shoddy work that the charging order wasn't removed at the same time as you received payment.

As for the figure, £3,000 wouldn't have been that lowly in 1985. Remember there may have been little equity in the property at the time of your divorce, so the figure could represent a decent proportion of the equity.

You could reply that you do not recall receiving the money and as the charge was not removed at that time, it suggests that the payment was not made. There is also the possibility that the payment was made to your previous solicitors and is still languishing in their client account, if they couldn't trace you. This would also explain why the work on removing the charge was not completed.

You can download the title deeds from land registry for £3, this will show you details of the charge. Also it may be worth contacting land registry as there is a mechanism for removing charges where the charge holder cannot be found. You wouldn't want this to happen.

You do need an acceptance from them that the charge has not been paid before you consider any interest!

novelli

thanks for your prompt reply.

Her solicitors, the ones who hgave now written to me, say they contacted the solicitor i used at the time and who they say they have paid but they were unable to assist????- I have now also emailed them saying that apparently the money was paid to them but i have never recieved it.
I have emailed the solicitor thats written to me telling her that no i have never received any payment and so therefore will be unable to sign any documents or agree to my name being removed from the register until payment has been recieved. As yet i havent mentioned interest,but its something i need to look into.

I probably need to seek independant legal advice but would i have to pay for it?? I am on benefits??

thanks

silvercar

Whether the solicitors have still kept paperwork from 1989 is one thing, but the money must be shown in an audit trial. Either it is languishing in a client account or it isn't.

Whether the money reached your solicitors or not, is not your problem at the moment. If you are not signing the documents the ex's ex will have to deal with this.

I would be tempted to phone up land registry to check that the entry can't be removed without your say so.

If the money was £30,000 rather than £3,000, it could end up in a court case where the judge would have to rule on the balance of probabilities whether it had been paid. For £3,000 the ex's ex would probably be advised that it would be cheaper to pay you off rather than risk having to pay your costs and losing a court battle, plus the delay that going to court would involve.