Charging Order? The myth

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  • eggbox
    eggbox Posts: 1,764
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    Dakota

    Interim Orders are always made Without Notice as the point is to get the CO temporarily in place before there is opportunity to sell the property. It's the Final Charging Order hearing you are allowed to attend but, as I have stated to LRR, many creditors don't bother with the Final hearing as a. It costs money and b. The Interim Order has the same effect on Jointly owned property. So why bother?

    With regard to the Judgement Order you are opposing, just make sure you have everything set out for the DJ to clearly see that there were two orders made and on separate dates. Then you have to clearly explain why this shouldn't have been allowed in tandem with handing the Judge the relevant documents explaining, on a legal basis, why that is.
  • DAKOTA45
    DAKOTA45 Posts: 592 Forumite
    holly09 wrote: »
    I would firstly like to thank Blueback for bringing this to our attention. I am also in the process of, hopefully successfully, selling my home with one of these restrictions. I will update this thread with my experiences once I have had success. In the meantime I found this very interesting article written by a partner at Blake Lapthorn which clearly outlines the weakness of these restrictions.

    Sorry- I'm not allowed to post links in a post. Anyone who would like to be pointed in the direction of this article - please send me a personal mesage.


    If you are still around, I'd like to see the link… it seems to have disappeared from the ether… Not sure how to send PMs though...
  • eggbox
    eggbox Posts: 1,764
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    Dakota

    There wasn't anything in that hasn't been explained on here. It just pointed out that the introduction of the new Land Registry 2003 Rules meant it was no longer possible to register a Charging Order, against a joint owner of property, as an equitable charge as is possible against a sole owner.

    It also highlighted that the Restriction now allowed to be registered on the debtors deeds (Form K) no longer gave any requirement of time notification (which used to be 14 days) to be notified the sale was happening.

    They, quite rightly, pointed out it was, therefore, quite possible for the debtor to sell their property and for the creditor to be notified after the event. The inference here was that any sale proceeds would be long gone before the Restriction holder got wind of the sale.
  • DAKOTA45
    DAKOTA45 Posts: 592 Forumite
    Hi Eggbox…Only BL seems to have cottoned onto this anomaly… these lawyers were involved in Wembley14's case as well as my own… but LRR has said they are the only two known cases…Or am I mistaken and there are lots of these modifications being allowed?

    There are many, many standard form K restriction Judgements every year…if they are not fit for purpose I guess LR will have to make changes to their rules at some point…

    I can understand why they are going down this route but my problem is in the way they have made the application to modify… there was ample time to make submissions… it was many months between the Interim CO and the Final CO, and yet, even though they were present at the hearing they made no mention of their intention at that time but waited more than 4 weeks after the Order to modify…

    Frankly, it's just bizarre...
  • Land_Registry
    Land_Registry Posts: 5,754
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    DAKOTA45 - just to clarify what was actually said in our previous posts as we did not state that your two cases were the only ones
    DAKOTA45 - interesting to note that you are in a similar position to Wembley14. As mentioned previously in my experience the extra modified restriction is rare and whilst two examples don't suggest that is changing it would be useful to know why a creditor does apply in this way but I guess only a creditor would be able to tell us?

    A small point but important to be clear as whilst rare I don't think that this is something to be too concerned with at this stage. As mentioned it is the creditor and/or court's reasoning that is important to understand why it happened.
    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"
  • eggbox
    eggbox Posts: 1,764
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    Hi LRR

    On what grounds can a creditor normally apply to modify a Form K, and am I right in thinking there would be costs involved in doing so?
  • Land_Registry
    Land_Registry Posts: 5,754
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    eggbox wrote: »
    Hi LRR

    On what grounds can a creditor normally apply to modify a Form K, and am I right in thinking there would be costs involved in doing so?

    Hi eggbox - we've covered this in previous posts as it is to the court which they have to apply to get an order which then instructs that a modified form K restriction is registered

    Applicants sometimes contend that the form K restriction frustrates the intention of the Charging Orders Act 1979 because it could allow the proceeds of sale to be dissipated before the creditor learns of the sale or the existence of the proceeds

    As it is not a standard form of restriction then it costs £80 to register.
    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"
  • DAKOTA45
    DAKOTA45 Posts: 592 Forumite
    edited 19 March 2015 at 3:22PM
    Hi Eggbox and LRR

    It's just weird that there are a set of rules where you can then pay a fee to have modified to suit…

    It seems all wrong… the rules should not be waived unless there are very important reasons for doing so… otherwise they are not actually rules but suggestions…

    Perhaps if I pay LR 80 quid they will change it back to a standard restriction… My reasons being that it disadvantages me and is discriminatory, especially if other creditors can have a standard restriction and I can't...

    Hmm...
  • eggbox
    eggbox Posts: 1,764
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    Hi LRR

    Thanks and yes you are right we did, sorry.

    But could I ask if you have any understanding of how or why the wording of a Form K Restriction was decided upon in the LR rules 2003?
  • Land_Registry
    Land_Registry Posts: 5,754
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    DAKOTA45 wrote: »
    Hi Eggbox and LRR

    It's just weird that there are a set of rules where you can then pay a fee to have modified to suit…

    It seems all wrong… the rules should not be waived unless there are very important reasons for doing so… otherwise they are not actually rules but suggestions…

    Perhaps if I pay LR 80 quid they will change it back to a standard restriction… My reasons being that it disadvantages me and is discriminatory, especially if other creditors can have a standard restriction and I can't...

    Hmm...

    DAKOTA45 - no restriction has been changed back. A form K was registered and for whatever reason the creditor applied to the court for an order instructing that a modified form K be registered, which was then also registered.

    Applying for a form K restriction appears to be quite straightforward. Applying for a modified restriction is presumably more 'arduous' for the creditor to achieve and presumably the court requires a degree of additional evidence to support the creditor's apparent contention along the lines explained in my previous post.
    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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