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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 181
    • eggbox
    • By eggbox 7th May 18, 9:45 AM
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    • 692 Thanks
    eggbox
    Thanks LRR.

    By overreaching do you mean that the property interest disappears and instead becomes an interest in the purchase monies for that property? If thats the case does that mean we would have to pay the creditors from the proceeds of the house, even though the restrictions are in single names but the house is being sold in jointly names and the proceeds from the sale would go into a jointly named account?
    Originally posted by Googly eye
    Overreaching means the "beneficial interest" (equity), on which the creditor has their CO attached to, is removed from the property when it is sold and you receive that "beneficial interest" in the form of the buyers purchase money.

    The creditor, however, only has claim on the debtors portion of the BI in the property. So, should you decide to pay the creditor on the sale of the property; they are only entitled to be paid from any monies the debtor receives from the property.

    The point of this thread, however, is to explain that the property can be sold without settling the debt at the point of sale. This is because the Restriction the creditor has isn't strong enough to prevent the sale happening. Once the funds are released to the debtor it is then up to them if they choose to settle the debt at that time. If they don't then the creditor has to find a way to recover the debt again?

    As many CO debts are from loan companies that sold the debt to a debt collection agency for a fraction of their value (for instance a 10k debt would be sold for a maximum of 1k to the DCA) The DCA won't want to spend more time, effort and expense chasing a debt that the debtor is trying to avoid repaying.

    As a reminder to anyone new reading this thread; this thread isn't trying to help people avoid paying "legitimate" debts (such as a builder who installed your new extension but you decided not to pay up) and for which Charging Orders are rightly used.

    It was to help redress how the financial institutions, disgracefully, acted during the financial crash around a decade ago, whereby, ordinary people who would never of dreamed they would ever default on loans and credit card payments suddenly found they were having to do so? The world economy crashed for the reasons we now all know was major greed and mismanagement from those same financial institutions?

    Instead of helping people who found themselves in difficulty, the banks took the decision to try and bleed customers, in trying to recover there own losses, by raising interest rates to extortionate amounts. 10% pa became 26%pa and the amounts owed forced thousands of people to default. When they did the banks then made the decision to use the avenue which turns an "unsecured " debt into a "secured" debt by attaching the debt to property. Leaving thousands of ordinary families terrified they were going to lose their home?

    Having secured the Charging Orders required but finding that CO's are a long term solution not a quick fix; the banks then decide to unload these debts to Debt Collection Agencies for a fraction of their value. Much, much, much less than they would have recovered if they had arranged long term repayment plans from their own customers in trouble?

    This practice also absolved high street banks from the dirty work of having to be responsible for collecting the debt that still existed. So, please, never, ever feel guilty if your debt is for a loan or credit card as these institutions, despite being responsible for the financial crash; are still planning ways to suck every last dime they can from you by fair means or foul.
  • Land Registry
    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?
    Originally posted by eggbox
    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
    Last edited by Land Registry; 07-05-2018 at 12:56 PM.
    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"
    • Googly eye
    • By Googly eye 7th May 18, 4:29 PM
    • 7 Posts
    • 0 Thanks
    Googly eye
    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
    • By eggbox 7th May 18, 10:10 PM
    • 1,380 Posts
    • 692 Thanks
    eggbox
    We will never say definitely as we can only consider an application on merit once submitted. So we say usually instead.
    Originally posted by Land Registry
    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
    • By eggbox 7th May 18, 10:26 PM
    • 1,380 Posts
    • 692 Thanks
    eggbox
    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
    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?
    Originally posted by eggbox
    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.
    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 10th May 18, 9:28 AM
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    • 692 Thanks
    eggbox
    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?
    Last edited by eggbox; 10-05-2018 at 9:32 AM.
    • eggbox
    • By eggbox 12th May 18, 2:27 PM
    • 1,380 Posts
    • 692 Thanks
    eggbox
    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
    • By sourcrates 12th May 18, 3:04 PM
    • 15,718 Posts
    • 14,783 Thanks
    sourcrates
    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.
    I'm a Board Guide on the Debt-Free Wannabe, Credit File And Ratings, and
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    • eggbox
    • By eggbox 12th May 18, 3:12 PM
    • 1,380 Posts
    • 692 Thanks
    eggbox
    I think, if nothing else, this proves that you must be persistent if you want to get anywhere.
    Originally posted by sourcrates
    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
    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"?
    Originally posted by eggbox
    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?
    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"
    • harisumo
    • By harisumo 14th May 18, 10:56 AM
    • 69 Posts
    • 18 Thanks
    harisumo
    Hi, I'm not sure if this has been covered before. We have an oversized garden which we find increasingly difficult to manage. We are, therefore, looking into the possibility of obtaining outline planning permission and selling it off as a building plot while prices in this area are very buoyant. We potentially/hopefully could raise enough money to clear our outstanding mortgage. The problem is that I have a Restriction in my name only for an old Northern Rock debt, after years of harassment by various debt collecting agencies who bought it it's gone very quiet and I have no idea who owns it now. I was trying to find out how the sale of part of our property would affect this. Would they need to be notified prior to the sale or after it or not all? The intention would be, all being well, to send whoever owns it now an offer to settle and clear it for once and for all. Thanks
    • eggbox
    • By eggbox 16th May 18, 8:54 AM
    • 1,380 Posts
    • 692 Thanks
    eggbox
    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.
    Originally posted by Land Registry
    Yes they do; it's just a matter of getting them to do their job. A solicitor can hardly be seen as upholding the conduct expected of them under the SRA Principles (which they are supposed to adhere to) if they are providing, factually incorrect, information to their clients? The SRA have the teeth to deal with this type of problem the trick, as with most organisations of this kind, is giving them the incentive to bite into the problem?
    eggbox 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.
    Originally posted by Land Registry
    As long as a Solicitor contravenes an SRA Principle then the SRA has no excuse not to intervene. Principle 5, 2.9 states a solicitor has to act with "competence" ergo giving, verifiable, incorrect information to a client isn't competent!

    And expecting any organisation to regulate themselves is always a disaster waiting to happen and where the public gets let down the most? As we have witnessed recently with organisations like the police (Hillsborough), financial institutions (mortgage mis-selling) and the NHS (Stafford Hospital).

    These incidents happen as the basic human instinct of self protection kicks in and things start to get covered up. Whilst those examples are at the extreme end of the scale; the same behavior still operates on the smaller end of the scale and the public always suffers as a result?

    eggbox
    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?
    Originally posted by Land Registry
    Unfortunately, I have encountered several instances where all members of a firm of Solicitors have the same opinion? This is despite being notified that their opinion is, factually, incorrect?

    I also have to witness, on a weekly basis, that to get any meaningful response out of organisations, like the SRA, you first have to take them out of their comfort zone?. Hence, I got a different response from them when they risk coming under the umbrella of being culpable for a potential problem a client may suffer?

    LRR; whilst I understand the points you have made you have, unfortunately, defeated your own argument as you are testimony that organisations can provide help if the will is there?
    Last edited by eggbox; 16-05-2018 at 8:56 AM.
    • eggbox
    • By eggbox 16th May 18, 9:02 AM
    • 1,380 Posts
    • 692 Thanks
    eggbox
    Hi, I'm not sure if this has been covered before. We have an oversized garden which we find increasingly difficult to manage. We are, therefore, looking into the possibility of obtaining outline planning permission and selling it off as a building plot while prices in this area are very buoyant. We potentially/hopefully could raise enough money to clear our outstanding mortgage. The problem is that I have a Restriction in my name only for an old Northern Rock debt, after years of harassment by various debt collecting agencies who bought it it's gone very quiet and I have no idea who owns it now. I was trying to find out how the sale of part of our property would affect this. Would they need to be notified prior to the sale or after it or not all? The intention would be, all being well, to send whoever owns it now an offer to settle and clear it for once and for all. Thanks
    Originally posted by harisumo
    LRR may be able to outline how any sale affects the deeds or any notifications that are required by the LR?

    Another consideration may be the mortgage lenders permission if you still have a mortgage outstanding?
  • Land Registry
    Unfortunately, I have encountered several instances where all members of a firm of Solicitors have the same opinion? This is despite being notified that their opinion is, factually, incorrect? [/B]?
    Originally posted by eggbox
    eggbox all understood and appreciated but it's this part that I would be looking to raise with the SRA re a specific firm, process exhausted..........

    You will have far more experience of dealing with such firms and the SRA than I on this matter. I based my post largely on how we approach such matters as, like the SRA, we would probably respond to a general point re all in one way but a specific issue re a specific title in another way.

    I wasn't challenging your approach or indeed the SRA's but merely thinking out loud as to an alternative that may trigger a different and fuller response? No need to respond as I know you appreciate this and it's not a debate I can really add much to. It's the SRA you need to do that for you.
    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
    LRR may be able to outline how any sale affects the deeds or any notifications that are required by the LR?

    Another consideration may be the mortgage lenders permission if you still have a mortgage outstanding?
    Originally posted by eggbox
    The form K restriction would still need to be complied with so the creditor notified. The restriction would be left on your title.
    How you manage/settle the debt would not be something we could advise on
    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"
    • harisumo
    • By harisumo 16th May 18, 12:43 PM
    • 69 Posts
    • 18 Thanks
    harisumo
    LRR may be able to outline how any sale affects the deeds or any notifications that are required by the LR?

    Another consideration may be the mortgage lenders permission if you still have a mortgage outstanding?
    Originally posted by eggbox
    Thanks for the info, I am trying to negotiate something with the mortgage lender as due to our previous financial hardship they switched us to an interest only mortgage and now the clock is ticking away ... That is the main reason for taking this action or just selling up completely.

    The only other major hurdle is trying to find out who owns the debt now, Northern Rock is still on the deeds but it sold to Marlin ages ago and we had a letter from their 'solicitors' Mortimer Clarke, also ages ago, advising that Marlin had closed our file and no longer held the debt. I never heard anything else since.
    Last edited by harisumo; 16-05-2018 at 12:54 PM.
    • eggbox
    • By eggbox 17th May 18, 11:11 AM
    • 1,380 Posts
    • 692 Thanks
    eggbox
    we had a letter from their 'solicitors' Mortimer Clarke, also ages ago, advising that Marlin had closed our file and no longer held the debt. I never heard anything else since.
    Originally posted by harisumo
    If that is the case I would use an RX3 to request the LR cancels the Restriction to see what happens?
    • harisumo
    • By harisumo 17th May 18, 1:07 PM
    • 69 Posts
    • 18 Thanks
    harisumo
    If that is the case I would use an RX3 to request the LR cancels the Restriction to see what happens?
    Originally posted by eggbox
    Thanks Eggbox, I will try - I assume the form can be downloaded from the Land Registry website, I'll have a look later. Also, did you have any success with the Solicitor you mentioned a while ago, I am trying to find one to deal with any prospective sale. Thanks again.
    • eggbox
    • By eggbox 17th May 18, 1:11 PM
    • 1,380 Posts
    • 692 Thanks
    eggbox
    Harisumo

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