Charging Order? The myth

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  • eggbox
    eggbox Posts: 1,771 Forumite
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    hayz347 wrote: »
    We have lived in our house since 2001 so I have no idea why the CO has only been applied for now. As you have correctly stated I probably rustled the leaves when I went to fill in the affordability paperwork at the court

    Sadly this is probably true, however, what's done is done? So do you have a mortgage offer in place despite the CCJ? If so, then you should try and exchange contracts as soon as is possible?

    This is because (and is subject to Land Registry Rep correcting me on this) if you exchange before the Restriction is registered then the Land Registry have to deal with what is on the deeds on the day they are notified a new owner is to be registered?
  • hayz347
    hayz347 Posts: 27 Forumite
    eggbox wrote: »
    Sadly this is probably true, however, what's done is done? So do you have a mortgage offer in place despite the CCJ? If so, then you should try and exchange contracts as soon as is possible?

    This is because (and is subject to Land Registry Rep correcting me on this) if you exchange before the Restriction is registered then the Land Registry have to deal with what is on the deeds on the day they are notified a new owner is to be registered?

    We have exchanged last week and complete/move on Friday (16th). It was not on the deeds when we exchanged (and still not showing today either)
    And Yes have a mortgage offer despite the CCJ :)
  • eggbox
    eggbox Posts: 1,771 Forumite
    First Anniversary First Post
    hayz347 wrote: »
    We have exchanged last week and complete/move on Friday (16th). It was not on the deeds when we exchanged (and still not showing today either)
    And Yes have a mortgage offer despite the CCJ :)

    Then you should be home and dry? However, just a word of caution in case, either, solicitor is not up to speed on the limitations of a Form K Restriction?

    Should the Restriction actually appear on the deeds before the new owner is registered; you need to be ready to explain that it will fall away, anyway, upon registration of the new owner as it will be overreached.

    But it will be a big help if you could come back here when everything sorted and confirm everything went okay?
  • Land_Registry
    Land_Registry Posts: 5,776 Organisation Representative
    First Anniversary Name Dropper First Post
    eggbox wrote: »
    Sadly this is probably true, however, what's done is done? So do you have a mortgage offer in place despite the CCJ? If so, then you should try and exchange contracts as soon as is possible?

    This is because (and is subject to Land Registry Rep correcting me on this) if you exchange before the Restriction is registered then the Land Registry have to deal with what is on the deeds on the day they are notified a new owner is to be registered?

    'Priority' is everything with conveyancing/registration so you deal with what is on the register and anything that has been applied for.
    The conveyancing process means that your conveyancer will submit an official search (OS1) to check if anything has been registered/submitted since they last checked the title. That OS1 then gives them a 30 day priority period within which IF they submit the protected application it can be registered and any other application, without priority, invariably ignored.

    So you can keep checking the registered title but the key check is the OS1 by your conveyancer as that's the one that creates the priority period
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  • hayz347
    hayz347 Posts: 27 Forumite
    eggbox wrote: »
    Then you should be home and dry? However, just a word of caution in case, either, solicitor is not up to speed on the limitations of a Form K Restriction?

    Should the Restriction actually appear on the deeds before the new owner is registered; you need to be ready to explain that it will fall away, anyway, upon registration of the new owner as it will be overreached.

    But it will be a big help if you could come back here when everything sorted and confirm everything went okay?

    You have been such a help thank you so much! I will update on Monday ..... hopefully when we are in the new house. :T
  • StevenM1990
    StevenM1990 Posts: 10 Forumite
    Sorry to dig up an old thread but I could use some clarification on this.

    My husband has an IVA and we are going through a divorce. The judge wanted to award me the house in the divorce by giving me his equity however the restriction on the order meant the judge had to adjourn the hearing as he didn’t know whether the IVA company would attempt
    To take the property off me after I have it.

    The property is in joint names and the restriction states:

    RESTRICTION: No disposition of the registered estate by
    the proprietor of the registered estate is to be registered without a
    written consent signed by Mr *********


    Is this the same scenario where if I want to sell the property the converyancing solicitor has to just notify the person named on the restriction and they can do nothing about it?

    Thankyou.
  • eggbox
    eggbox Posts: 1,771 Forumite
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    StevenM1990

    Unfortunately, the wording on your Restriction isn't a, standard, Form K restriction wording that does only require the buyer to notify the creditor, that the property is being sold, to comply with the Restriction.

    As you will see from what you have posted; the restriction on your deeds requires Mr ********* to give a written consent (for whatever followed on the restriction wording) to enable a transfer to proceed.
  • StevenM1990
    StevenM1990 Posts: 10 Forumite
    Hi eggbox thanks for your reply.

    There is no wording following what I have posted. Does that suggest anything?

    Also can this restriction be legally put on the deeds without my consent considering I don’t have any IVA and never consented to this.

    The judge doesn’t know what to do in the divorce case because of this. Do you know if the judge can overrule it?
  • eggbox
    eggbox Posts: 1,771 Forumite
    First Anniversary First Post
    I'm no expert on IVA's but a restriction is, most likely, part of an IVA agreement to prevent the debtor from being allowed to sell up and do a runner from the debt plan agreed? I also believe that homeowners in an IVA are expected to look at a remortage, to help pay debts, towards the end of the IVA agreement period?

    I'm fairly sure LRR would have some information on, whether, or not an IVA in place could be overridden by a Judge through removing the restriction?
  • StevenM1990
    StevenM1990 Posts: 10 Forumite
    Well the judge said he could transfer all of husbands equity to me so my husband has 0 share.

    However he was concerned that I would not be able to sell the property due to a restriction for his IVA when he has 0 share.

    Surely the Iva company cannot stop the sale of a property when the Iva in question is for a person who has 0 interest in the property?

    As long as I have clarity that I can sell the property then I can tell the judge to order the equity to me without worrying that I will have problems later on
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