Charging Order? The myth

eggbox · 21 April 2019 at 6:29PM

Routerman wrote: »

Just a note of caution in case anyone is considering putting property, etc in someone else's name:
walkermorris.co.uk/publications/
banking-matters-january-2016/landmark-decision-allows-recovery-from-non-debtors/

Be careful on this as the person against whom the order was granted admitted she had an equitable interest in the property concerned (as she was marrried to the owner) so its not the same thing. Also as Property Law Uk explains regarding this case;

Provided the court is satisfied the judgment debtor has an interest in relevant property, the court will usually make a charging order. In practice, the quantification of the interest (and the determination of competing claims) usually takes place when the court considers whether to make an order for sale. If at that stage the court determines that the judgment debtor has no interest, it will discharge the charging order.

But I should also re-iterate this thread is not about wholesale avoidance of debt. It is relating, specifically, to unsecured lending that attracted high interest (being unsecured) but upon default the lender is able to obtain security for the debt without recourse to the original high interest amount that has already been obtained from the debtor. Or as it's better known; having your cake and eating it!

StevenM1990 · 23 April 2019 at 9:51PM

Read as many pages of this thread as I can and I believe I’m safe from being forced to pay my charging order as it’s definitely a restriction .

However my restriction is worded slightly differently which makes me think I may not even have to notify the creditor of the impending sale. Can anyone confirm this?

RESTRICTION:
no disposition of the registered estate, other than a disposition by the proprietors of any registered charge registered before the entry of this restriction, is to be registered without a certificate signed by the applicant for registration or their conveyancer that written notice has been given to ***** being the person with the benefit of an interim charging order on the beneficial interest of ***

The interesting part is it says that no sale can be made other than by anyone containing a charge above this one. There is a charge above this one with my name on it saying I own the property.

The register goes like this:
Title absolute
1: proprietor ( my details)
2. Price paid and details
3. Mortgage company restriction
4. Interim charging order restriction I’ve posted above.

Surely that means I can sell without even concerning myself with telling them?

eggbox · 23 April 2019 at 10:19PM

StevenM1990

1 & 2 on the list are registration details not charges.

What you have is a Form L Restriction which is similar to a Form K (and LRR may be able to explain why that type of restriction may have been preferred to a Form K?)

But your buyer will still have to notify the creditor if a sale is being made (although as with a Form K there is no time scale or limit notified)

StevenM1990 · 24 April 2019 at 12:05AM

You say the buyer has to inform the creditor?

I thought it was myself who has to inform them?

If the buyer has to do it that could be more troublesome as getting a buyer to agree to not inform them until last minute would be a lot harder

eggbox · 24 April 2019 at 7:42AM

"without a certificate signed by the applicant for registration or their conveyancer"

That's the buyer or their conveyancer

StevenM1990 · 24 April 2019 at 5:39PM

That makes it next to impossible then... a buyer isn’t going to care enough about your debts to wait until last minute and discuss all that with their solicitor...

StevenM1990 · 24 April 2019 at 5:51PM

On the first page of this thread it says it means the seller notifies them?

eggbox · 24 April 2019 at 5:54PM

StevenM1990 wrote: »

That makes it next to impossible then... a buyer isn’t going to care enough about your debts to wait until last minute and discuss all that with their solicitor...

Nobody has said its an easy task to achieve but a read of this thread will show you it is the solicitors/conveyancers that provide the obstacle not the buyers? Buyers will often go along with the sellers request especially if they have fallen in love with the house?

The vast majority of solicitors encountered by posters on this forum, however, have been unhelpful with a high proportion admitting they didn't understand a Form K restriction differed from an equitable charge? They have also been proven to safeguard their own interests ahead of their clients?

But we have several examples of posters achieving the desired result with the right help so its a matter of keep persevering?

eggbox · 24 April 2019 at 6:02PM

StevenM1990 wrote: »

On the first page of this thread it says it means the seller notifies them?

It does but it was written by the poster who was alerting people to the limitations of a Form K who, unfortunately, made a couple of errors when explaining the process.

The other error is that a creditor can't get a charging order against a joint owner of a property. The creditor can get a charging order he just can't register it against jointly owned property as an equitable charge only by notification of a restriction.

Land_Registry · 25 April 2019 at 7:22AM

eggbox wrote: »

What you have is a Form L Restriction which is similar to a Form K (and LRR may be able to explain why that type of restriction may have been preferred to a Form K?)

It reads like a form K to me and not a form L? Form L is used where there's a specific deed to be complied with for example

But OP says 'my details' for part 1 of register which implies he's a sole proprietor so a form K shouldn't apply.

So without exact details impossible to be sure here

Charging Order? The myth

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