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Charging order on builder's house
15 Answers
Hi. I obtained a final charging order for £25000 against a cowboy builder.
He and his wife are 'tenants in common' as far as the Land Registry is concerned. I haven't tried to force him to sell his house previously because of this. My CCJ against him and the Order is in his name not hers. I don't know what percentage of the house is 'in his name' because this doesn't have to be publicly declared. Could be a quid.
One assumes that if he ever sells his house, I will be contacted by the solicitor/conveyancer and paid back from the proceeds.
But I have heard that if his conveyancer asks him to confirm that he has notified me that he's selling, and he says yes, the transfer can happen without me having been contacted, and the order is then deleted. I find this very worrying!
Also, if he defaults on his loan or whatever or there's no equity, does that let him off the hook?
It's taken a lot of time and stress to get to the Final Charging Order stage, and I have a nagging doubt that there are ways by which he can cheat me again. He is a compulsive liar and all-round b*stard, and I don't expect him to play fair anytime ever.
Is there such a thing as the 'Northern Rock' fiddle in this context?
Thank you if you can offer advice on this.
He and his wife are 'tenants in common' as far as the Land Registry is concerned. I haven't tried to force him to sell his house previously because of this. My CCJ against him and the Order is in his name not hers. I don't know what percentage of the house is 'in his name' because this doesn't have to be publicly declared. Could be a quid.
One assumes that if he ever sells his house, I will be contacted by the solicitor/conveyancer and paid back from the proceeds.
But I have heard that if his conveyancer asks him to confirm that he has notified me that he's selling, and he says yes, the transfer can happen without me having been contacted, and the order is then deleted. I find this very worrying!
Also, if he defaults on his loan or whatever or there's no equity, does that let him off the hook?
It's taken a lot of time and stress to get to the Final Charging Order stage, and I have a nagging doubt that there are ways by which he can cheat me again. He is a compulsive liar and all-round b*stard, and I don't expect him to play fair anytime ever.
Is there such a thing as the 'Northern Rock' fiddle in this context?
Thank you if you can offer advice on this.
Answers
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From my knowledge (but check as to up to date position) the action the conveyancer would take is dependant on the wording of the restriction which goes on the title register. If the restriction states that they just have to notify then that is very different to them having to obtain consent to any sale, remortgage etc... (ie you could not consent until they agree to pay you your money eg from the sale proceeds).
Do you know what the actual wording of the resctriction is? Did you get it registered yourself? It will be on the title register if you have a copy. Maybe on charging order documentation.
There are exceptions which override eg repossession (power of sale means it can be sold whether or not there is sufficient money to pay off all registered charges - this is where ranking of creditors on the title comes into play - if the main mortgage lender who ranks first reposseses, other creditors can only take from what is left in order, if there isn't enough left then tough).
Do you know what the actual wording of the resctriction is? Did you get it registered yourself? It will be on the title register if you have a copy. Maybe on charging order documentation.
There are exceptions which override eg repossession (power of sale means it can be sold whether or not there is sufficient money to pay off all registered charges - this is where ranking of creditors on the title comes into play - if the main mortgage lender who ranks first reposseses, other creditors can only take from what is left in order, if there isn't enough left then tough).
I've just had a look on the Land Registry site and looks like it might be a Form K Restriction (the LR have a number of standard ones for use in different situations - http://www1.landregis...andard-restrictions):
Form K (Charging order affecting beneficial interest - certificate required)
No disposition of the
[choose whichever bulleted clause is appropriate]
•registered estate, other than a disposition by the proprietor of any registered charge registered before the entry of this restriction
•registered charge dated [date] referred to above, other than a disposition by the proprietor of any registered sub-charge of that 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 [name of person with the benefit of the charging order] at [address for service], being the person with the benefit of [an interim or a final] charging order on the beneficial interest of [name of judgment debtor] made by the [name of court] on [date] (Court reference [insert reference])
Form K (Charging order affecting beneficial interest - certificate required)
No disposition of the
[choose whichever bulleted clause is appropriate]
•registered estate, other than a disposition by the proprietor of any registered charge registered before the entry of this restriction
•registered charge dated [date] referred to above, other than a disposition by the proprietor of any registered sub-charge of that 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 [name of person with the benefit of the charging order] at [address for service], being the person with the benefit of [an interim or a final] charging order on the beneficial interest of [name of judgment debtor] made by the [name of court] on [date] (Court reference [insert reference])
Compare with Form N where consent is required:
Form N (Disposition by registered proprietor of registered estate or proprietor of charge - consent required)
No [disposition or specify type of disposition] of the registered estate [(other than a charge)] by the proprietor of the registered estate [, or by the proprietor of any registered charge, not being a charge registered before the entry of this restriction,] is to be registered without a written consent signed by
[choose one of the bulleted clauses]
•[name] of [address] [or their personal representatives] [or [their conveyancer or specify appropriate details]].
•[name] of [address] [or their personal representatives] and [name] of [address] [or their personal representatives] [or [their conveyancer or specify appropriate details]].
•[name] of [address] and [name] of [address] or the survivor of them [or by the personal representatives of the survivor] [or [their conveyancer or specify appropriate details]]
•[name] of [address] or [after that person's death] by [name] of [address] [or [their conveyancer or specify appropriate details]].
Information here on restrictions generally including some on Charging Orders.
Form N (Disposition by registered proprietor of registered estate or proprietor of charge - consent required)
No [disposition or specify type of disposition] of the registered estate [(other than a charge)] by the proprietor of the registered estate [, or by the proprietor of any registered charge, not being a charge registered before the entry of this restriction,] is to be registered without a written consent signed by
[choose one of the bulleted clauses]
•[name] of [address] [or their personal representatives] [or [their conveyancer or specify appropriate details]].
•[name] of [address] [or their personal representatives] and [name] of [address] [or their personal representatives] [or [their conveyancer or specify appropriate details]].
•[name] of [address] and [name] of [address] or the survivor of them [or by the personal representatives of the survivor] [or [their conveyancer or specify appropriate details]]
•[name] of [address] or [after that person's death] by [name] of [address] [or [their conveyancer or specify appropriate details]].
Information here on restrictions generally including some on Charging Orders.
Sorry link here: http://www1.landregis...d/documents/pg19.html
Sorry it's a bit longwinded in response but hope this helps!
Sorry it's a bit longwinded in response but hope this helps!
I have the Form K wording registered as a restriction on the builder's Land Registry record.
He only has to sign a piece of paper to say he gave me notice... beyond his word, there's no proof or witnesses required as far as I can see. And he's already lied under oath about his other debts... hence my concern.
He only has to sign a piece of paper to say he gave me notice... beyond his word, there's no proof or witnesses required as far as I can see. And he's already lied under oath about his other debts... hence my concern.
Ooops, found a copy of the entry...
Restriction: No disposition....................... 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 (ME) being the person with the benefit of a final charging order .... etc.
More holes than a bit of Swiss cheese. But surely this wording has been developed for just this situation. The builder could and would sign to say he'd written to me in time for me to contact his conveyancer...
Then I read this and things went a bit gloomy for me: http://www.bllaw.co.u...s%20on%20property.pdf
Restriction: No disposition....................... 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 (ME) being the person with the benefit of a final charging order .... etc.
More holes than a bit of Swiss cheese. But surely this wording has been developed for just this situation. The builder could and would sign to say he'd written to me in time for me to contact his conveyancer...
Then I read this and things went a bit gloomy for me: http://www.bllaw.co.u...s%20on%20property.pdf
Finally, there is one other creditor with a charging order against the guy, but mine was registered first. I anticipate there is sufficient equity for both of us to be repaid, although the builder could be remortgaging or obtaining home owner loans to release his equity to nothing as I speak...
This is one sick system.
This is one sick system.
It's not the lying debtor who has to sign but whoever is applying to register the new ownership - i.e. his buyer or their solicitor. However, as the article makes clear, this doesn't really help you.
I notice the article is dated 2006 & wonder whether anything on the lines suggested there may have happened which could help you. Perhaps Jenna (who I think is a solicitor) may be able to comment.
Another problem you have is that the % share of each partner in a tenants in common ownership can, I believe, be altered - so I wouldn't be surprised if his % is now very low even if it was much higher before you pursued him.
The debt doesn't go away if you can't get paid when he sells, but it becomes an unsecured debt again & you have to pursue whatever enforcement action is available to you on that basis.
Incidentally, what do you mean by a "Northern Rock fiddle"?
I notice the article is dated 2006 & wonder whether anything on the lines suggested there may have happened which could help you. Perhaps Jenna (who I think is a solicitor) may be able to comment.
Another problem you have is that the % share of each partner in a tenants in common ownership can, I believe, be altered - so I wouldn't be surprised if his % is now very low even if it was much higher before you pursued him.
The debt doesn't go away if you can't get paid when he sells, but it becomes an unsecured debt again & you have to pursue whatever enforcement action is available to you on that basis.
Incidentally, what do you mean by a "Northern Rock fiddle"?
I may be wrong, but I think you can still pursue other enforcement methods - such as getting an order to take money from his bank account (but this can be difficult particularly if you don't know the account details). Talk to your Court office to find out what you can do - or look at the Court service website.
Coincidentally, when I originally paid him a deposit (several thousand pounds to buy materials, oh yeah?) it was direct to an account solely in his wife's name. He said he used it as a business account.
Is it probable that I could use this to prove her involvement in the theft, and thereby encourage or force the sale of the house they own together, even though my judgment is against him only? Would I have to go through the who le palaver against her?
The account never had any money in it and most of his work was cash in hand. He wasn't even registered for VAT despite admitting under oath his turnover was around £100,000 a year. And he has nothing of value to get possessed. I expect all the money is in Spain or under his bed.
Is it probable that I could use this to prove her involvement in the theft, and thereby encourage or force the sale of the house they own together, even though my judgment is against him only? Would I have to go through the who le palaver against her?
The account never had any money in it and most of his work was cash in hand. He wasn't even registered for VAT despite admitting under oath his turnover was around £100,000 a year. And he has nothing of value to get possessed. I expect all the money is in Spain or under his bed.
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