Can a 2nd charge holder make you sell?

jimm24

Only interested as someone said they where unable to make you sell,I'd be interested to know.

CLAPTON

Of course they can apply to the courts for a possession order.

fermi

jimm24 wrote: »

Only interested as someone said they where unable to make you sell,I'd be interested to know.

Or they could apply for a "sale order" if they have a "charging order", but it is both very rare for a creditor to try, and even rarer for the court to agree to it.

See: Factsheet | Charging orders in the county court

CAN THE CREDITOR SELL MY HOME?

It is rare for the court to allow a creditor who has a final charging order to sell your home. Most creditors are prepared to wait for you to sell your home at some point in the future and to be paid out of the proceeds of the sale. If a creditor is not prepared to wait, then they can apply to the court for a hearing for an order for sale. It is up to the court to decide whether to make an order for sale or not.

INFORMATION
The court should take into account the factors outlined above in the section 'How can I stop a charging order?'

The court can order a sale where:

• the debt is in your sole name and you are the sole owner; or
• the debt is in both names of the joint owners of the house;
• if the debt is in your sole name and the house is in joint names, the creditor gets an 'interest' in the house once the charging order is made final. This means the creditor can apply to the court for an order for sale to realise their 'interest' in your house. All joint owners (or a married person who is not a joint owner but has an 'interest' in the property) should be part of the court proceedings so they can explain their case to the court as well. They should be sent notice of the hearing and be allowed to attend.

At the hearing the court must look at the following points.

• Is there enough equity in the house to cover any mortgages and the charging order debt?
• When you bought the house what did you buy it for? Is it intended as a long-term family home? Is it imagined that an elderly person will live there for their lifetime?
• Welfare of any children should especially be taken into account. Are there special factors such as age, disability or illness? There may be a need for stability at school. The effect on the children of moving house should be considered.
• If the debt is in your sole name, argue that it is not fair for the whole family to lose their home because of a debt belonging to one person.

The court should look at whether the interests of the creditors should outweigh the interests of the family. Argue that, under the Trusts of Land & Appointment of Trustees Act 1996, the court has discretion to say the family's interests outweigh the creditor's interests.

INFORMATION
You can still make an offer of payment at this stage and ask the court not to order a sale as long as you keep up with the payments. You can ask the court to adjourn the order for sale proceedings, or to suspend the order.

REMEMBER
It is very unusual for an order for sale to be made. If your creditor is threatening to have your house sold, you will need specialised legal advice.

peb

Now Fermi read that as charging order whereas I read it as the second charge? If the former Fermi knows a lot more than I do! If the latter ; yes they can. However the proceeds of sale would pay off the first charge first then the second charge so they would only do it if they felt there was sufficient equity to make it worth their while.

jimm24

Fair enough,it came up in a conversation and I was intrigued

fermi

peb wrote: »

Now Fermi read that as charging order whereas I read it as the second charge?

I read it as just a second charge without explanation regarding the "hows" and "whys".

CLAPTON had already commented on what could happen if it was simply a second charge, but if a CO had been made it would be a bit different. Felt it needed to be mentioned to cover all bases.

jimm24

Someone said about second charges,with regard to a secured loan,I thought it seemed a bit off but wanted to know more.thanks all