Charging Order? The myth

Land_Registry · 7 May 2018 at 12:51PM

eggbox wrote: »

Thanks for the reply LRR but what I was requesting an answer to is what the LR would accept from the purchaser (by way of verifying they had notified the Restrictioner) if they chose to do the conveyancing themselves rather than employ a Solicitor?

You stated you don't need to see proof from a Solicitor but they have to "certify" they have notified the creditor of the sale which, I presume, means you can accept their word on the matter (presumably because they are a legal professional and would be in trouble had they, actually, not notified the creditor?)

As a purchaser doing their own conveyancing would not have that advantage; I'm asking what would they need to provide to satisfy the LR notification had been sent to the Restrictioner? Would a recorded delivery receipt to the Restrictioner be enough?

The problem when Solicitors are involved appears to be that the buyers Solicitor won't play ball unless the Restrictions are removed prior to the new registration commencing.

This is because they refuse to accept that the Restrictions will be removed from the deeds even if the Restriction terms have been met and are, also, overreached by a sale for value?

Even if the buyers Solicitor is willing to play ball; the sale falters as they request the seller's Solicitor to give an "undertaking" the Restrictions will be removed upon registration. It falters because the seller's Solicitor refuse to give that undertaking because the LR won't confirm the Restrictions will "definitely" be removed upon the new registration proceeding?

As a Solicitor can get into serious trouble giving an undertaking for something that doesn't happen; they don't feel it's worth taking the risk? So any "guidance" on that area would be most welcome?

A certificate is quite simply a written statement which says "I/We certify that ......." and it would be given by the applicant or their conveyancer. That's it. that is the evidence that you have notified the creditor.

I think it is quite clear as to when a form K can be overreached and the PG76 sets out that position in section 4

We will never say definitely as we can only consider an application on merit once submitted. So we say usually instead.

There should be no need for an 'undertaking' as a solicitor should understand the restriction's wording, be able to notify the creditor of the sale, appreciate the practice guidance around overreaching and proceed accordingly.

Unfortunately one or more of those may not happen and for a variety of reasons no doubt. But we would not be aware of what advice a solicitor gives in such matters. We deal with the end result, namely registration of a completed purchase or otherwise as appropriate.

If a solicitor is unsure of how to proceed then it is the LPA 1925, as PG76 states, that is the relevant legislation

Googly_eye · 7 May 2018 at 4:29PM

Thank you Eggbox, you have described my situation perfectly, its all down to banks and credit cards that I am in this situation and I did feel very very guilty because of these restrictions, but after learning of this thread and reading other peoples stories I am more determined than ever to fight my case for not paying these blood sucking creditors. I just hope my solicitor has the stomach for it :-)

eggbox · 7 May 2018 at 10:10PM

Land_Registry wrote: »

We will never say definitely as we can only consider an application on merit once submitted. So we say usually instead.

Thanks for the clarification LRR and you are, obviously, correct in what you explain. Hopefully, people trying to sell can use that explanation to convince their Solicitor's of the facts of what you state?

Unfortunately, I fear their response will still be that unless there is a "definite" guarantee from the LR then "usually" will not sufficient for them to recommend proceeding with the sale unless the restrictions are removed prior to the sale commencing?

However, your explanation should give sellers more confidence in how to approach their Solicitor, on this subject, and educate them on what they should already know? We can but hope?

eggbox · 7 May 2018 at 10:26PM

Googly eye

No problem and for anyone who is in any doubt of how culpable the financial institutions were for the financial crash I recommend a watch of, both, the film the "Big Short" and also the documentary narrated by Matt Damon called "Inside Job".

Both excellent watches and, I promise, will leave you open mouthed at, not only, how the crisis came about; but how little (if at all) was done to bring those responsible to account?

Land_Registry · 10 May 2018 at 5:56AM

eggbox wrote: »

Thanks for the clarification LRR and you are, obviously, correct in what you explain. Hopefully, people trying to sell can use that explanation to convince their Solicitor's of the facts of what you state?

Unfortunately, I fear their response will still be that unless there is a "definite" guarantee from the LR then "usually" will not sufficient for them to recommend proceeding with the sale unless the restrictions are removed prior to the sale commencing?

However, your explanation should give sellers more confidence in how to approach their Solicitor, on this subject, and educate them on what they should already know? We can but hope?

eggbox it would be a rare set of circumstances, such as a question mark over the joint/beneficial ownerships, that meant it was not overreached.

And whilst I understand the important distinction between definite and usually, the opposite of the latter is 'unusually'. So we again come back to an understanding of the LPA 1925 and it's impact on interests affecting the beneficial ownership where there is a joint legal ownership, a form K restriction and a sale.

its always up to the conveyancer to provide the legal advice to their client, seller or buyer, as they see fit. We can only offer guidance on our view of the law's impact on the registered detail.

eggbox · 10 May 2018 at 9:28AM

LRR

I take on board (and agree with) everything you explain. Unfortunately, it's the part whereby you state that "its always up to the conveyancer to provide the legal advice to their client, seller or buyer, as they see fit" that creates the problem?

This is not the fault of the LR its the fault of conveyancers who, in the vast majority of cases experienced by board members, simply don't understand this area of their trade? In a recent post by Adgeman (#3587) you will his conveyancer as disputing the advice given by National Debt (regarding a standard Form K Restriction) stating; "National Debt are incorrect as the Land Registry will not let any application the buyers solicitor make to register their clients interest in the property proceed until Certificates are received from Royal Bank of Scotland and Investec."

This is clearly incorrect information but there appears no mechanism to, either, correct conveyancers giving this wrong advice or bring them to account as the advice impacts on the sellers decision on what to do regarding their sale?

eggbox · 12 May 2018 at 2:27PM

For anyone unhappy with incorrect information they receive, from their Solicitor, regarding how a Form K Restriction has to be complied with; I have now contacted the Solicitors Regulation Authority on the matter.

After the standard, unhelpful, reply any organisation like this gives to the general public; they have provided details of how to make a complaint if your Solicitor is telling you anything different from what the Land Registry rules explain? Whilst it appears any claim against a Solicitor would have to go through the Law Ombudsman, the info might help focus Solicitors who persist with giving out incorrect information.

Eggbox: What actions can be taken against Conveyancing Solicitors who continue to give incorrect advice regarding the sale of property concerning Form K Restrictions? We are experiencing a glut of people seeking our help who have related their conveyancing solicitor as explaining certificates being required from the Restrictioner before the Land Registry will proceed with the buyers registration. We have confirmed with the Land Registry this is incorrect information but we still encounter Solicitors repeating the incorrect information even after producing the Land Registry guides as conformation their opinion is incorrect? As this incorrect information can impact on the what the seller of the property decides to do; I'm requesting ask is the action that can be taken against any solicitor continuing to repeat the incorrect information after being notified (through the Land Registry Guides) that their advice is, factually, incorrect?

SRA: Dear Mr Evans,
Thank your for your email: We cannot comment on your legal matter regarding the sale of a property. If you are concerned about the service provided by your own solicitor or firm you must always try complaining to your solicitor or firm first. If you have and they have not resolved the complaint to your satisfaction within eight weeks, you can take your case to the Legal Ombudsman<http://www.legalombudsman.org.uk/helping-the-public/>.

Eggbox: I don't quite understand your response, however, as my message concerned factual matters not anything that concerned, subjective, advice or opinion? I'm informing you we have evidence that a number of Solicitors are giving incorrect information to their clients. Is the SRA not concerned about this matter? So you are left in no doubt of what I am informing the SRA about; the matter concerns Form K Restrictions which state that to comply with its terms a certificate has to be supplied by the "applicant for registration or their conveyancer" that notification has been given to the Restrictioner (that a sale of the property concerned is proceeding) to the Land Registry in order for a new registration of the property to proceed. We are getting blanket reports, however, that conveyancing solicitors are informing their clients that the Land Registry won't register new buyer details unless they receive a certificate of notification from the Restrictioner which is, factually, incorrect? Given the SRA has now been notified of this problem; if it doesn't respond to rectify the error I would suggest it would be seen as being negligent, should a buyer have to take action on the matter of being given incorrect information, as it would be against a person regulated by the SRA? I'd, therefore, have to request you take heed of that possibility when sending your next response?

SRA: Apologies if our last correspondence was unclear in any way.
If you have concerns about a solicitor or firm of solicitors that we regulate you will need to submit a report form to us highlighting your concerns and attach any supporting evidence.This is the process everybody must follow in order to report their concerns to us.What you need to do is complete our report form and send it to:
Solicitors Regulation Authority
The Cube
199 Wharfside Street
Birmingham
B1 1RN
or email report@sra.org.uk

sourcrates · 12 May 2018 at 3:04PM

It could be you must have to be a member of the ministry of funny walks in order to make such a complaint, or the society of secret handshakes perhaps, or the chap on the other end of the email thought the info was a little above his pay grade.

I think, if nothing else, this proves that you must be persistent if you want to get anywhere.

eggbox · 12 May 2018 at 3:12PM

sourcrates wrote: »

I think, if nothing else, this proves that you must be persistent if you want to get anywhere.

Sadly, that advice is all too true towards dealing with most organisations of this type? Most of whom seem to have the same general stance towards the general public of "help as little as you possibly can"?

Land_Registry · 14 May 2018 at 6:08AM

eggbox wrote: »

Sadly, that advice is all too true towards dealing with most organisations of this type? Most of whom seem to have the same general stance towards the general public of "help as little as you possibly can"?

eggbox I can understand the frustrations involved here but I think it's worth noting that the SRA has specific roles, which I don't think would cover the points you raised with them. We have a similar scenario.

I'm not trying to defend any particular position or process but merely, in the spirit of the thread, to reflect on how such organisations may deal with matters and why

If there's a specific complaint then the firm of solicitors will have a procedure to follow and that has to be tackled/exhausted first. I don't think the SRA would look to advise on specific points of law or conveyancing as that's not, on the face of it their role. They look at how individuals and their firms operate and deliver their services and that may not extend to specific advice given in a specific case.

It's no different for us at HMLR where you'd be expected to pursue the specific point through the local office, escalate it to the senior lawyer/officer and then the Independent Complaints Reviewer (ICR) can be involved if appropriate to do so.

So I don't think it's one of the issues highlighted that's causing the responses given but more a case of it's something you'd need to pursue with the firm through their complaints procedure re the specific example. The SRA may be a further step but the firm's own complaints process may provide a clearer response although you'd be reliant on an OP or two to assist to keep it specific?

I'm not saying that would give you the response you are after but if the firm, through a senior partner for example, review the advice given/actions taken in a specific case you may get a different outcome?

Charging Order? The myth

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