Charging Order? The myth

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  • eggbox wrote: »
    Land Registry Rep & Bonfire 1966

    If the Restriction registered on the property is only a standard Form K, even if it has been re-instated is it still not the case that the buyer still only has to notify the creditor of the house being sold (and also notify the LR accordingly) to satisfy the terms of the Restriction to allow the transfer of the property to proceed?

    If so, this seems the logical thing for Bonfire to now point out to the new Buyer to get the LR out the hole its, unfortunately, dug itself into?

    Hi eggbox
    Thanks for your reply. I have done some research and have found an article written by a barrister that states the same as you have suggested. I’m hoping that the buyers solicitor, who certainly must have known that an objection had been submitted by the creditors solicitor, are more savvy regarding this issue than my solicitor and just get on with it. I will let you know if I hear anything.
  • DAKOTA45
    DAKOTA45 Posts: 592 Forumite
    edited 9 February 2018 at 6:58AM
    Looking forward to seeing the usual thread reinstalled; I can't tell you how much help I've had, especially from the amazing Eggbox ...

    Hurry up back, please!

    D45
  • bonfire1966
    bonfire1966 Posts: 45
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    edited 31 January 2018 at 5:48PM
    Oh my goodness D45 what a terrible position for you. I can’t offer anything other than a much deserved virtual hug.
    I too have problems with debt that was not even mine but my deceased exs who got a restriction for money owed on our joint owned property. Im still having problems and have relied on this thread for some much needed support particularly from Eggbox. Certainly hope the thread can be found again to help those like us.
  • DAKOTA45
    DAKOTA45 Posts: 592 Forumite
    Oh my goodness D45 what a terrible position for you. I can’t offer anything other than a much deserved virtual hug.
    I too have problems with debt that was not even mine but my deceased exs who got a restriction for money owed on our joint owned property. Im still having problems and have relied on this thread for some much needed support particularly from Eggbox. Certainly hope the thread can be found again to help those like us.

    Thanks for the hug… much needed and appreciated… I don't have a very supportive husband… my problems are all of my own doing, apparently! If it wasn't for amazing people on these forums, I would probably have gone stark staring mad...
  • DAKOTA45
    DAKOTA45 Posts: 592 Forumite
    edited 9 February 2018 at 7:21AM
    Hello Land Registry Representative!!!8230; Many thanks for your help !!!8230; D45
  • sampete
    sampete Posts: 28
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    I have a restriction on jointly owned property. Can we add our daughters name to the deeds?
  • Land_Registry
    Land_Registry Posts: 5,754
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    sampete wrote: »
    I have a restriction on jointly owned property. Can we add our daughters name to the deeds?

    With any restriction it is the wording that dictates what can or cannot happen, namely do you have to comply with it or not?

    So for example 'No disposition by the registered owner........ would catch a Transfer by the two of you to the three of you.

    So what's the wording?
    Official Company Representative
    I am the official company representative of Land Registry. MSE has given permission for me to post in response to queries about the company, so that I can help solve issues. You can see my name on the companies with permission to post list. I am not allowed to tout for business at all. If you believe I am please report it to forumteam@moneysavingexpert.com This does NOT imply any form of approval of my company or its products by MSE"
  • Land_Registry
    Land_Registry Posts: 5,754
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    DAKOTA45 wrote: »
    Hello Land Registry Representative... (if you are out there somewhere).. I really need your help!!

    I'm selling my property but there is nothing in the title which mentions the right of easement to access the septic tank which we have used since we moved in. (The tank is on someone else's land).

    Our solicitor is saying we can't pass on the rights to our purchaser, as we would gain prescriptive rights of access only after being in the property for 20 years.

    However, I found the following, which seems to suggest that easements of access will automatically pass on to each new owner of the land, being as the tank has been used on a regular basis over the years by each consecutive owner of the property.

    D45.

    2. The operation of the easements when no register entries are made

    There is no requirement for register entries to be made in respect of prescriptive easements.

    The benefit of all interests subsisting for the benefit of an estate vests in the registered proprietor on first registration (sections 11(3) and 12(3) of the Land Registration Act 2002) and will then pass on a transfer of the registered estate.

    Easements arising by common law prescription or the doctrine of lost modern grant will be legal interests. The purchaser of unregistered burdened land is bound by legal interests.

    Following first registration of the burdened land most legal easements are overriding interests (section 29 and Schedule 3 of the Land Registration Act 2002) and so capable of binding successive registered proprietors of the burdened land.

    It is possible for an easement to cease to have effect on a registered disposition if the transferee had no actual knowledge of it, it was not obvious on a reasonably careful inspection of the land, and it had not been exercised within 1 year of the transfer. This does not, however, apply to easements that were overriding interests in relation to a registered estate on the coming into force of the Land Registration Act 2002 on 13 October 2003.

    Most prescriptive easements will not fall into the category of easements that cease to have effect as they will be used on a regular basis.

    However, the possibility of an easement being lost in this way should not be ignored. The entry of a notice in the register of the burdened title will ensure that the easement does not cease to have effect on registration of a future disposition of the burdened land.

    D45 - one of the key things with any claim based on continuous use is that the required timescale is met so you'd need to read on in PG 52 and section 4.2 for example assists re evidence provided by more than one user.

    If you want to pass on the claim then you woukd need to tick all the factual boxes apart from the 20 year one. The buyer by continuing the use on may then reach the 20 years and be able to replicate the claim.
    Official Company Representative
    I am the official company representative of Land Registry. MSE has given permission for me to post in response to queries about the company, so that I can help solve issues. You can see my name on the companies with permission to post list. I am not allowed to tout for business at all. If you believe I am please report it to forumteam@moneysavingexpert.com This does NOT imply any form of approval of my company or its products by MSE"
  • sampete
    sampete Posts: 28
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    Thanks Land Registry


    The restriction wording as follows:


    `No disposition of the registered estate, other than a disposition by the proprietor 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 of the disposition was given to (Banks name and solicitor)`


    Although we are not selling, I take it this would still prevent us just adding our daughter name to the deeds?
  • Land_Registry
    Land_Registry Posts: 5,754
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    sampete wrote: »
    Thanks Land Registry


    The restriction wording as follows:


    `No disposition of the registered estate, other than a disposition by the proprietor 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 of the disposition was given to (Banks name and solicitor)`


    Although we are not selling, I take it this would still prevent us just adding our daughter name to the deeds?

    It catches the Transfer from 2 to 3 so you'd need to notify the Bank/Solicitor as mentioned. That's just notifying them so on it's own is easily done.

    The key Q you really need to be asking is what impact does adding your daughter have. I'm guessing you've looked into that but if not then worth getting some legal/financial advice
    Official Company Representative
    I am the official company representative of Land Registry. MSE has given permission for me to post in response to queries about the company, so that I can help solve issues. You can see my name on the companies with permission to post list. I am not allowed to tout for business at all. If you believe I am please report it to forumteam@moneysavingexpert.com This does NOT imply any form of approval of my company or its products by MSE"
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