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  • FIRST POST
    blueback
    Charging Order? The myth
    • #1
    • 26th Jul 09, 11:28 AM
    Charging Order? The myth 26th Jul 09 at 11:28 AM
    I feel that this is so important that I thought a new thread should be made to highlight the importance of understanding the law on Charging Orders and how many people are stuck with their property in the false believe that they have had a Charging Order put on their property.

    In particular the thousands of Northern Rock customers that have had unsecured debt turned into secured debt by their tactics.

    If your property is jointly owned a creditor will not be able to obtain a CO against you, they can only get what is called a restriction.

    The laws on Restrictions are totally different to Orders, the most important being there is NO OBLIGATION for you to pay any of the proceeds of the sale to the creditor.

    However, during the whole court process you go through the reference from all parties (especially the creditor) will be to charging order and NOT to restriction. This is done in order to decieve you believing you are stuck with a CO.

    However, not all solicitors are aware of the law in this regard and it is important that you raise this point with them in the first instance before proceeding with them

    Quote:

    Restriction


    The restriction which can be entered on the register where a charging order is made against one of joint proprietors is in the following form :-
    No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to [name of person with the benefit of the charging order] at [address for service], being the person with the benefit of [an interim] [a final] charging order on the beneficial interest of (name of judgment debtor) made by the (name of court) on (date) (Court reference.…).
    You are therefore correct in saying that when the Land Registry receives an application to register, for example a transfer, we will not ask to see the consent of the person who has the benefit of the charging order. We will only want a certificate from the applicant for registration or his conveyancer that the person who has the benefit of the charging order has been given written notice of the transfer.

    If both joint owners sell the land to a third party the restriction will be cancelled when the transfer to the purchasers is registered.


    So I hope I have provided benefit to everyone who has had a restriction entered against them (especially NORTHERN ROCK CUSTOMERS) who believe wrongly that they are Charging Orders.

    You now have the freedom to go and sell your houses with the knowledge that the vultures can do nothing

    I also think this VERY IMPORTANT point needs highlighting by the moderators as many many people are stuck with houses that they believe they cannot sell
Page 177
    • DAKOTA45
    • By DAKOTA45 15th Jan 18, 6:51 AM
    • 502 Posts
    • 49 Thanks
    DAKOTA45
    Hmmm!!!8230;. just wondering!!!8230;. if you give the creditor notice of an impending sale but they don't go on to notify Land Registry of that notice!!!8230; then what?

    What I mean is; is it up to me to tell Land Registry that I've given notice to the creditor, or is it for the creditor to provide evidence to LR that they have been notified by me?

    Feeling a bit confused today, but it could be the flu meds!!!8230;.
    Regards, D45
    Last edited by DAKOTA45; 15-01-2018 at 6:55 AM.
    • eggbox
    • By eggbox 15th Jan 18, 7:44 AM
    • 1,296 Posts
    • 662 Thanks
    eggbox
    It's what is written into the terms of the Restriction that need to be followed. So if it says the buyer then its the buyer who notifies the LR, buty if it says the creditor then it has to be the creditor who provides notification.

    The latter does mean it can hold up a transfer of the property, to new buyers, until the notification is given from the creditor, unfortunately, as the terms of the Restriction won't be met until that happens.
    • Shirelife99
    • By Shirelife99 16th Jan 18, 11:40 AM
    • 1 Posts
    • 0 Thanks
    Shirelife99
    Hi,
    I’m new to these forum discussions but I was hoping someone might be able to help.

    I am looking to remortgage my with my partner but I have a charging order against my property before she moved in.
    The charging order is with a company that have since gone bankrupt and now sits with a third party company who have acquired their portfolio.
    I tried to contact the third party company who were most unhelpful and didn’t really know anything about my charge or indeed have anything on their systems.
    They have referred the matter to a solicitor to deal with the charge on their behalf.
    This solicitor just so happens to be the same solicitor who was acting on behalf of the original company who went bankrupt.
    I might be reading too much into this but it has all started to feel very unprofessional.
    I manage to contact the solicitor directly to ask what the situation was with the charge in relation to me and my remortgage.
    She was not particularly help and said she would email me some details.
    I had to chase the solicitor for days because she had incorrectly take my email address despite having an original email from myself with my address on.
    Again I was left feeling a little concerned.
    I have tried to do the right thing in clearing the charge with the remortgage By means of raising some funds to pay it off.
    Sadly I can’t raise the full amount but offered to pay the maximum I could which was approx 50%.
    Without the remortgage I won’t be able to do this and I was wondering if

    A. A charging order debt can indeed be sold on to a third party company.
    And
    B. Can the charging order be transferred on or postponed and added again to my property once I have remortgaged?

    My partner and I have no intention of moving from our property for the long term future and I am not trying to avoid paying at some point, I just wish to be able to remortgage to save money and clear debt.

    Any advice would be greatly appreciated.

    Kind Regards
    J
    • eggbox
    • By eggbox 18th Jan 18, 2:26 PM
    • 1,296 Posts
    • 662 Thanks
    eggbox
    A. A charging order debt can indeed be sold on to a third party company.
    And
    B. Can the charging order be transferred on or postponed and added again to my property once I have remortgaged?
    Originally posted by Shirelife99
    A. Yes, but the original CCJ has to be transferred by a Court to the new owner and of which you should have been informed of?

    B. In simple terms NO as the creditor has no need to give up the priority it has on your assett?

    But it may be worthwhile talking to the creditor to see if they would be willing to take a reduced amount to settle the debt now?
    • DAKOTA45
    • By DAKOTA45 19th Jan 18, 7:36 AM
    • 502 Posts
    • 49 Thanks
    DAKOTA45
    It's what is written into the terms of the Restriction that need to be followed. So if it says the buyer then its the buyer who notifies the LR, buty if it says the creditor then it has to be the creditor who provides notification.

    The latter does mean it can hold up a transfer of the property, to new buyers, until the notification is given from the creditor, unfortunately, as the terms of the Restriction won't be met until that happens.
    Originally posted by eggbox
    I wonder how long they can hold up the completion… would they have a time limit to notify LR once they have been paid.. or could they delay even longer if they felt like it, because they have a grudge, for instance?
    • eggbox
    • By eggbox 19th Jan 18, 9:45 AM
    • 1,296 Posts
    • 662 Thanks
    eggbox
    I think LRR touched on this a while back when he said if the creditor was being unreasonable in withholding notification (eg if the debt is willing to be repaid from the sale of the property) then you might have to take the matter back to Court?
  • Land Registry
    I think LRR touched on this a while back when he said if the creditor was being unreasonable in withholding notification (eg if the debt is willing to be repaid from the sale of the property) then you might have to take the matter back to Court?
    Originally posted by eggbox
    Correct - there's no strict time limit but the onus would be on the applicant to demonstrate that they had notified them and that they were getting no response.

    If I recall D45 you had a modified form K restriction and they are rare as I posted and often only created with the court's permission. So seems highly likely it's the court's decision as to how long a time limit would be and what is unreasonable
    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
    • By DAKOTA45 22nd Jan 18, 5:54 AM
    • 502 Posts
    • 49 Thanks
    DAKOTA45
    Many thanks, Eggbox & LRR- We agreed to pay the charge(s) quite a few weeks ago when they were made aware of our impending sale, but as far as I know, they have not notified LR yet.
    Regards, D45
    • bonfire1966
    • By bonfire1966 24th Jan 18, 3:53 PM
    • 40 Posts
    • 12 Thanks
    bonfire1966
    I am back feeling so very confused and asking for more help.
    As you know house sold in December. Restriction relating to my deceased ex was removed prior to sale. Creditors solicitor applied to have restriction reinstated and guess what the land registry have put the restriction back on to a house I no longer own!! Title deed has not yet changed to new ower due to paperwork having to be resolved in date order at the land registry. The new owners application has been submitted.
    I'm completely lost now. What happens. I don't own the house. I feel completely annoyed with the land registry how they can suddenly say that my reasons for removal are no longer valid when they removed the restriction based on those reasons in the place.
    When I spoke to the land registry the objections officer told me that they had made a mistake in removing it. I told her that the creditor was never given an opportunity to object to my application. She seems to think this is where they have gone wrong!!!
    I am fuming and have no idea what to do if anything regarding a property that is not mine.
    When they deal with the transfer of the house title what will happen??
    Surely the land registry should be accountable for this mess!
    Any ideas?? Thanks.
  • Land Registry
    I am back feeling so very confused and asking for more help.
    As you know house sold in December. Restriction relating to my deceased ex was removed prior to sale. Creditors solicitor applied to have restriction reinstated and guess what the land registry have put the restriction back on to a house I no longer own!! Title deed has not yet changed to new ower due to paperwork having to be resolved in date order at the land registry. The new owners application has been submitted.
    I'm completely lost now. What happens. I don't own the house. I feel completely annoyed with the land registry how they can suddenly say that my reasons for removal are no longer valid when they removed the restriction based on those reasons in the place.
    When I spoke to the land registry the objections officer told me that they had made a mistake in removing it. I told her that the creditor was never given an opportunity to object to my application. She seems to think this is where they have gone wrong!!!
    I am fuming and have no idea what to do if anything regarding a property that is not mine.
    When they deal with the transfer of the house title what will happen??
    Surely the land registry should be accountable for this mess!
    Any ideas?? Thanks.
    Originally posted by bonfire1966
    Totally understand your anger and frustration. Unfortunately it seems we have erred in removing the restriction at the time. We are accountable so if we have erred and you have suffered them you may wish to take that further -see our Practice Guide and complaints procedure

    Unfortunately mistakes can be made and it seems that we have made two both procedurally re not giving the creditor time to put their case for the restriction to remain and from a registration angle if not considering both sides of the issue.

    Ultimately it's a legal issue as to whether the creditor' interest has come to an end re the property. Both sides will have a view on that and we have to consider them both. By not contacting the creditor at the time we failed to do that.

    I imagine that the creditor has put a case that now needs to be considered by one of our lawyers. That will lead to communication with both sides in the argument and hopefully a quick decision. That will very much depend on the legal arguments made though so timescales can be stretched.

    Best case scenario is that we reject the creditor' position, remove the restriction again and register the purchase.

    Next steps for you seem to be to wait for our communication and then seek legal advice as appropriate. You may prefer to do that now of course and it will help to know on what grounds the creditor has asked for the restriction to remain.

    We will deal with the applications in order so if the restriction remains and it prevents the Transfer being registered then the ball will be in the buyer's court and they will look to your solicitor for assistance/action.

    If the restriction is removed then the Transfer is considered next and presumably registered if everything else is in order.

    The key from our perspective is that we have to consider both sides. So for example if the creditor had a case and both the restriction had been removed and the Transfer registered then we would have been open to them taking action against us well.

    It's remained an issue for you as the creditor raised it sooner rather than later as a result.

    I am sure we will write to you or the solicitor who submitted the RX3 to explain the position/next steps as appropriate. So very much legal advice you need at this stage
    Last edited by Land Registry; 25-01-2018 at 6:28 AM.
    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
    • By eggbox 28th Jan 18, 7:39 PM
    • 1,296 Posts
    • 662 Thanks
    eggbox
    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?
    • bonfire1966
    • By bonfire1966 28th Jan 18, 9:33 PM
    • 40 Posts
    • 12 Thanks
    bonfire1966
    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?
    Originally posted by eggbox
    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
    • By DAKOTA45 31st Jan 18, 3:58 PM
    • 502 Posts
    • 49 Thanks
    DAKOTA45
    Hijacked thread
    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
    Last edited by DAKOTA45; 09-02-2018 at 6:58 AM.
    • bonfire1966
    • By bonfire1966 31st Jan 18, 5:45 PM
    • 40 Posts
    • 12 Thanks
    bonfire1966
    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.
    Last edited by bonfire1966; 31-01-2018 at 5:48 PM. Reason: Spelling mistake
    • DAKOTA45
    • By DAKOTA45 31st Jan 18, 6:46 PM
    • 502 Posts
    • 49 Thanks
    DAKOTA45
    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.
    Originally posted by bonfire1966
    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
    • By DAKOTA45 4th Feb 18, 8:24 AM
    • 502 Posts
    • 49 Thanks
    DAKOTA45
    Hello Land Registry Representative!!!8230; Many thanks for your help !!!8230; D45
    Last edited by DAKOTA45; 09-02-2018 at 7:21 AM.
    • sampete
    • By sampete 4th Feb 18, 9:22 PM
    • 28 Posts
    • 8 Thanks
    sampete
    I have a restriction on jointly owned property. Can we add our daughters name to the deeds?
  • Land Registry
    I have a restriction on jointly owned property. Can we add our daughters name to the deeds?
    Originally posted by sampete
    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
    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.
    Originally posted by DAKOTA45
    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
    • By sampete 5th Feb 18, 6:11 PM
    • 28 Posts
    • 8 Thanks
    sampete
    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?
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