On 11/01/2024 18:02, Fredxx wrote:
A member of the family has obtained a charging order against an ex for
a unrepaid loan.
This has gone through the courts and resulted in a Final charging order.
Their belief was that the interim and final charging orders would
automatically be sent to the Land Registry but it seems this is not
the case and it is up to the claimant to instigate the charge.
After them making applications this has instigated the above question,
where Land Registry say you cannot have both a notice and a restriction.
The defendant in the court action is named under "Title Absolute" in
the property register but this a leasehold from a Staircase purchase
associated with a Housing Association who hold the Freehold.
I must say I'm confused of this difference and and "Form K" was
mentioned in an application for a restriction.
My understanding was that a Notice entry has the ability of preventing
a sale without a discharge certificate and the restriction is not what
they need since this does not prevent a sale with the proceeds being
squirrelled away. However it is the Application for a Restriction that
has the From K wording preventing the sale without the appropriate
certificate.
Any help would be appreciated.
As your post has gone a week without a response, I'll chime in with the little I have, but I'll warm you in advance that it isn't much. :-)
I think there is some confusion of language and this is leading to misunderstandings.
At the risk of repeating what you already know, as your family member
has obtained a charging order, they need to register that with the Land Registry.
There are two ways of registering the charge, either by way of a notice
or a restriction, with each being used differently and neither being
more effective than the other - each has pros and cons depending on the circumstances. But it is the circumstances that dictate which of the
two must be used, rather than anything else.
Have you read the Land Registry's Practice guide 76: charging orders [1]?
Key question: Is the property owned solely by the judgment debtor? If
so, see algorithm 1 [2] for whether you need a notice or a restriction.
Conversely, if there are joint proprietors registered, see algorithm 2 [3].
For details on the differences between the two see Practice guide 19: notices, restrictions and the protection of third-party interests in the register [4]. section 2 of which covers "Notices" and section 3 of which covers "Restrictions".
Regards
S.P.
[1] https://www.gov.uk/government/publications/charging-orders/practice-guide-76-charging-orders
[2] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/529498/Algorithm_1_-_Sole_proprietor_registered__June_2016_.pdf
[3] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/529499/Algorithm_2_-_Joint_proprietors_registered__June_2016_.pdf
[4] https://www.gov.uk/government/publications/notices-restrictions-and-the-protection-of-third-party-interests-in-the-register/practice-guide-19-notices-restrictions-and-the-protection-of-third-party-interests-in-the-register
On 18/01/2024 20:19, Fredxx wrote:
On 18/01/2024 18:20, Simon Parker wrote:
On 11/01/2024 18:02, Fredxx wrote:
A member of the family has obtained a charging order against an ex
for a unrepaid loan.
This has gone through the courts and resulted in a Final charging
order.
Their belief was that the interim and final charging orders would
automatically be sent to the Land Registry but it seems this is not
the case and it is up to the claimant to instigate the charge.
After them making applications this has instigated the above
question, where Land Registry say you cannot have both a notice and
a restriction.
The defendant in the court action is named under "Title Absolute" in
the property register but this a leasehold from a Staircase purchase
associated with a Housing Association who hold the Freehold.
I must say I'm confused of this difference and and "Form K" was
mentioned in an application for a restriction.
My understanding was that a Notice entry has the ability of
preventing a sale without a discharge certificate and the
restriction is not what they need since this does not prevent a sale
with the proceeds being squirrelled away. However it is the
Application for a Restriction that has the From K wording preventing
the sale without the appropriate certificate.
Any help would be appreciated.
As your post has gone a week without a response, I'll chime in with
the little I have, but I'll warm you in advance that it isn't much. :-)
I think there is some confusion of language and this is leading to
misunderstandings.
At the risk of repeating what you already know, as your family member
has obtained a charging order, they need to register that with the
Land Registry.
There are two ways of registering the charge, either by way of a
notice or a restriction, with each being used differently and neither
being more effective than the other - each has pros and cons
depending on the circumstances. But it is the circumstances that
dictate which of the two must be used, rather than anything else.
Have you read the Land Registry's Practice guide 76: charging orders
[1]?
Key question: Is the property owned solely by the judgment debtor?
If so, see algorithm 1 [2] for whether you need a notice or a
restriction.
Conversely, if there are joint proprietors registered, see algorithm
2 [3].
For details on the differences between the two see Practice guide 19:
notices, restrictions and the protection of third-party interests in
the register [4]. section 2 of which covers "Notices" and section 3
of which covers "Restrictions".
Regards
S.P.
[1]
https://www.gov.uk/government/publications/charging-orders/practice-guide-76-charging-orders
[2]
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/529498/Algorithm_1_-_Sole_proprietor_registered__June_2016_.pdf
[3]
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/529499/Algorithm_2_-_Joint_proprietors_registered__June_2016_.pdf
[4]
https://www.gov.uk/government/publications/notices-restrictions-and-the-protection-of-third-party-interests-in-the-register/practice-guide-19-notices-restrictions-and-the-protection-of-third-party-interests-in-the-register
Many thanks for your post. I am aware of the paths and algorithms that
Land Registry publish but my understanding over the matter is limited.
I'm unsure over the significance that the freehold is owned by a
housing association. The leasehold is owned by the ex-partner and
there is no lender or other third party mentioned in this title register.
As per Practice guide 76:
From them being a sole proprietor then "Algorithm 1 – Sole proprietor
registered" should be followed.
Is the charging order made against the sole proprietor? : YES
Is there an entry for example a restriction in the register that may
indicate the property is held on trust for a third party (see section
3 Applications for entry of a notice)? :
Not sure what this means, given this is a staircase purchase. My
instinct says NO, meaning that "An agreed or unilateral notice
may be entered."
I've also come across links like this:
https://express-conveyancing.co.uk/what-is-a-registered-notice-or-a-restriction-against-a-property-what-it-can-mean-to-a-purchaser/
Which says, "A Restriction is an entry which can be found on the
Proprietorship Register on the title to a freehold property. Any entry
on this register is confirmed and restricts the 'deposition' or sale
of the property until the restriction is satisfied".
It also says, "Restrictions on Dispositions by a Sole Proprietor –
This type of restriction can only be placed on a property by an Order
made by a court." In this case he has a court charging order in his
favour.
In my simple way if thinking, I thought notices are alerts, and
restrictions are that, preventing sale without satisfaction of the
restriction. A notice wouldn't then stop the transfer of the property
to a member of her family for example.
Your use of the phrase "this is a staircase purchase" has raised a
mental red flag for me.
Is this a shared ownership property where the debtor owns a percentage
of the property and the housing association you mention owns the rest?
If so, what are the respective percentages?
Or was it originally a shared ownership property but the debtor now owns
100% without a mortgage charge registered against the property?
If my understanding is incorrect, what is the involvement of the housing association in the property and what did you mean by "this is a
staircase purchase"?
On 19/01/2024 02:04, Fredxx wrote:
On 19/01/2024 00:08, Simon Parker wrote:
On 18/01/2024 20:19, Fredxx wrote:
Many thanks for your post. I am aware of the paths and algorithms
that Land Registry publish but my understanding over the matter is
limited.
I'm unsure over the significance that the freehold is owned by a
housing association. The leasehold is owned by the ex-partner and
there is no lender or other third party mentioned in this title
register.
As per Practice guide 76:
From them being a sole proprietor then "Algorithm 1 – Sole
proprietor registered" should be followed.
Is the charging order made against the sole proprietor? : YES
Is there an entry for example a restriction in the register that may
indicate the property is held on trust for a third party (see
section 3 Applications for entry of a notice)? :
Not sure what this means, given this is a staircase purchase. My
instinct says NO, meaning that "An agreed or unilateral notice
may be entered."
I've also come across links like this:
https://express-conveyancing.co.uk/what-is-a-registered-notice-or-a-restriction-against-a-property-what-it-can-mean-to-a-purchaser/
Which says, "A Restriction is an entry which can be found on the
Proprietorship Register on the title to a freehold property. Any
entry on this register is confirmed and restricts the 'deposition'
or sale of the property until the restriction is satisfied".
It also says, "Restrictions on Dispositions by a Sole Proprietor –
This type of restriction can only be placed on a property by an
Order made by a court." In this case he has a court charging order
in his favour.
In my simple way if thinking, I thought notices are alerts, and
restrictions are that, preventing sale without satisfaction of the
restriction. A notice wouldn't then stop the transfer of the
property to a member of her family for example.
Your use of the phrase "this is a staircase purchase" has raised a
mental red flag for me.
Is this a shared ownership property where the debtor owns a
percentage of the property and the housing association you mention
owns the rest?
If so, what are the respective percentages?
Or was it originally a shared ownership property but the debtor now
owns 100% without a mortgage charge registered against the property?
If my understanding is incorrect, what is the involvement of the
housing association in the property and what did you mean by "this is
a staircase purchase"?
The ex has title to 75% of the property and the housing association
owns the rest?
The percentage is defined by a Memorandum with an entry number in the
title register that relates to the purchase of an additional share.
As I suspected. That's not "sole proprietor ownership" then. It is
owned by "joint proprietors" as tenants in common with the debtor owning
75% and the housing association the remaining 25%.
That puts your relative firmly into Algorithm 2 territory.
As the charging order is not made against all joint proprietors, the
only option is to enter a Form K restriction as the charging order is
made against the interest of only one of the joint proprietors. A
notice cannot be entered.
Somewhat confusingly, you need to complete Form RX1 to enter a Form K restriction.
Form RX1 is available here in both Word Format and as a PDF:
https://www.gov.uk/government/publications/enter-a-restriction-registration-rx1
You are better applying through the Land Registry's portal or Business Gateway as the fee is halved.
| Sysop: | Keyop |
|---|---|
| Location: | Huddersfield, West Yorkshire, UK |
| Users: | 300 |
| Nodes: | 16 (2 / 14) |
| Uptime: | 45:32:35 |
| Calls: | 6,710 |
| Calls today: | 3 |
| Files: | 12,243 |
| Messages: | 5,354,235 |
| Posted today: | 1 |