Charging Order? The myth

eggbox wrote: »

Hi Wembley

First of all I'm really glad you have (finally!) managed to resolve your sale at last. And many, many thanks for coming back to the board to report your success.

I also understand your frustrations over this matter as it does seem ridiculous a creditor can withhold confirmation to the LR of being notified of a sale, as the Restriction stated, when they clearly have been notified? I also agree with you that I don't understand why overreaching doesn't occur in this instance, as it does on a Standard Form K, when it's a sale for value to a third party?

But at least your persistence has paid off and it should give people the encouragement not to give up when faced with a similar situation!

eggbox - like you I am glad to read that Wembley has at long last been able to resolve the issue. And I mean that quite genuinely even though I appreciate some of their frustration has been directed at us, Land Registry. Hence my picking up on your post rather than quoting from Wembley's own last post.

I think I have covered these points before so apologies if I am repeating anything

The issue of the creditor withholding their confirmation/certificate would be covered by the law around charging orders and the court process involved.

Overreaching can and does occur when dealing with a number of standard restrictions, including a form K restriction. It does not occur so readily for non-standard restrictions and/or those specifically permitted/granted by the court.

As I am sure you will appreciate if the court has been asked to provide the additional protection afforded by this extra restriction then it presumably had good reason to then grant the necessary order. This in turn then takes it out of the norm and any issue as to why it is then not overreached in the same way would be a matter of law, again around charging orders.

Whilst I can see both sides of the argument in such cases it would seem odd to me that a court would provide an order that essentially then resulted in two restrictions, the usual and standard form K and this other type, which could both then be simply overreached in exactly the same set of circumstances?

In your dealings with the courts/creditors have you come across such a scenario previously and can you shed any light on why a creditor might apply for such additional protection? Clearly they can but any ideas why they would as this seems to be a rare example.

JMSCV - I suspect she can but would probably need to provide the OR's certificate confirming what had happened etc.
If you are unsure as to what is required then I would suggest contacting us with the specific details inc address/title number and an explanation of what has happened and which entry you are seeking to have removed

eggbox - I wasn't suggesting that Wembley was taking aim personally as we can't be too sensitive around such things when active in a public forum after all.

I accept that we may not always be as helpful as people might wish or hope for but as you clearly appreciate, the law is very complex and it is the law around debt and charging orders that it most relevant here and that is not our area of expertise.

Yes, we can advise on our procedures and how to submit an application for registration but we cannot advise on the ins and outs around the law, which in these cases is really what is needed.

The registration process can be complex in some ways but in essence that aspect relates largely to the completion and submission of the forms required and lodgement of the supporting evidence. Any complexities tend to then arise with regards that supporting evidence and whether it is sufficient in law which, as mentioned, is then outside the areas on which we can advise.

In most cases we are at the end of any process involving land/property be that a mortgage or purchase or indeed where a charging order has been granted and the creditor decides to then protect that interest on the register. We are not directly involved in how the legal complexities involved in how the buyer, borrower or indeed creditor/debtor arrived at that point.

The extra restriction provided in Wembley's case as a result of the court order is rare in my experience. I appreciate that Wembley may not have attended court at the time of the hearing and/or may not have had legal advice/assistance but I wonder if he/she might be able to shed some light on how or why that additional protection was afforded?

I agree the wording of the restriction seems reasonable as it makes it clear that it is providing that extra protection simply because it is different to a standard form K restriction.

The issue of being unreasonable in deliberately withholding notification to us when they, the creditor, has definitely been notified of the sale and within the time limits as stated would again be a matter of law - I doubt if it would be the buyer who would have any recourse directly with the creditor but presumably the seller would and if their buyer had lost out then the law may take a view on that as well. But that is for the courts/law to decide on and not us.

I cannot recall every part of Wembley's example but I am unsure whether at any stage an application was made to cancel the restriction based on evidence which demonstrated that the creditor had been notified and that they had received it and that they had refused to supply the written confirmation - all parts and not just some?

Asking the question 'what can we do in such a situation?' is very different from submitting an actual application and whilst I am not suggesting this would have made any difference here it is important to recognise the difference between an enquiry where no actual evidence is seen and an actual application. The former triggers a general response whilst the latter requires much more.

The issue of why overreaching doesn't occur in this instance when a sale has been made for value, and proof can be provided that the Restrictioner has been notified but is deliberately withholding notification, I suspect, largely relates back to the court originally granting this additional protection and how the law then sees it. The court would I suspect be aware that a form K can be overreached after all.

JMSCV - if the form K relates to the OR's interest as well then probably yes but you would need to submit an RX3 and the evidence as mentioned.
If I have understood correctly you and your wife are transferring the title into her sole name so that would not overreach a form K hence the need for the OR's consent/certificate as appropriate

JMSCV - I am afraid NRAM means nothing to me and a google search does not really help either. However that may not be that important from a registration perspective though as it is the type of restriction and the wording that matters most here.

Our online guidance around personal insolvency may help