Charging Order? The myth

eggbox wrote: »

It relates to organisations like the SRA (and to be fair the LR) who "hide", in my opinion behind the "we can't give legal advice" stance when questioned by members of the public.

YOU are a clear exception that demonstrates many of these bodies could be more helpful, without giving legal advice, as the example Rangers123 gave, whereby, it was clear what the question the solicitor was referring to and which could have easily been explained for clarity.

Understood and appreciated although I'd argue that the clarity a conveyancer needs is provided in our PG as far as overreaching is concerned.

Overreaching is not covered by the LR Acts & Rules so to advise beyond the PG would be explaining how other legislation works - legal advice - and if we did then we would be culpable.

Citizens pay for legal advice and assistance as a result because the cinveyancer is covering any legislation involved and not say just LR Acts & Rules. And those fees help to insure the conveyancer against the risk of getting it wrong, advice or otherwise.

On the issue if clarity I feel that is very subjective. My reading if the issue was based in the post here which naturally altered how I read it.
My colleague, who dealt with the conveyancer's Enquiry did not have that advantage.

What they had was an enquiry that in the face if it focussed on removal of the restriction. 99/100 that's done through application by the owner or restrictioner plus evidence to support its removal e.g release, consent, court order etc. Not by overreaching

The real question the cinveyancer should have been asking, in my view, is does the fact that the company has been dissolved affect that overreaching.

As they didn't and they git the answer they did it woukd be interesting to know if Ranger123 pursues the matter with the cinveyancer who asked the Q and with us re the reply given.

In my view that's the best way to affect change on both fronts. As the latter helps our people improve awareness/understanding. And in the latter case if the conveyancer's own firm back up their advice then the SRA can be contacted to see if they take a different view and can do anything more.

We have the same situation in that if a complaint is upheld the next step is an independent complaints reviewer (ICR) and that adds the 'extra kick' a complainant may crave when looking for improvement

I hope that helps add some more clarity re our own position on this and a smidgen of insight into how in my view a cinveyancer and/or SRA might view it also

eggbox wrote: »

LRR

Unfortunately, the help and guidance you have given on this thread negates a lot of your argument above? The point I'm making is that many organisations take the default position of "we can't give legal advice" even when they are only being asked to provide a simple explanation of the rules? This makes those organisations, unfairly, impenetrable to members of the public who often don't know where next to turn to?

This is, especially, in light of this site being littered with "citizens" reporting they have paid for the legal advice required only to encounter that the "professionals" hired don't understand the rules, either?

eggbox it's an understanding of the law and what view you have as to how that law works.
It's not a rule in my view that's being applied here in the context of this thread.

And as you will appreciate the law itself can be subjective so you can get differing views, that's why you then have a judge as the arbiter.

For example the issue of overreaching is our interpretation of the law hence 'A charging order affecting only the beneficial interests under a trust is liable to be overreached along with those interests by the operation of sections 2 and 27 of the Law of Property Act 1925' - so our interpretation of the LPA 1925

And whilst I am not suggesting this is the case re the legal advice being given by the solicitor's referred to in the the thread a different view of the law may be taken. That may for example be a view that focuses on the Charging Orders Act and/or any legislation dealing with such debts and how they are satisfied and when.

I suspect the real difficulty for some solicitors is how COs are dealt with differently and how those differences impact on jointly and solely owned properties. But it still comes back to the impact of the CO itself and how the law enables the creditor to realise the debt or the debtor to manage it where they own a property.

The only way you will change a solicitor's view, in my opinion, is by challenging their interpretation of the law and convincing them to accept your interpretation - that's not a rule to be enforced but a matter of discussion/education and encouragement all of which this thread can help with, complaints to solicitor's and their firms when poster's views differ, and the SRA thereafter as appropriate.