HiI placed a charge on a property for a debt owed to me the charge was issued by the court and placed on the title deeds as a restiction. The restiction stated that in the event the property was to be sold I should have been informed but it dose not state before or after the sale. Before would seem the correct way. In law under this restriction is it stated before the sale? if not its not worth anything?
State/Country relating to question: United Kingdom
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Is the debtor the only owner of the property please?
no him and his wife
Thanks. His wife is presumably not a party to the debt?
no but she was informed by the court prior to the charge being registered against her property
This is known as an equitable charge.
A legal charge (a little like a mortgage) cannot be registered where the debtor owns a house jointly because it is not possible for you to claim against the coowners share. A equitable charge just effects the debtors share of the property.
The restriction will prevent the property being transferred without notice being given to you first. In practice a buyer will make enquiries as to what the restriction represents and will want assurances and an undertaking from the sellers solicitor that the same will be removed before completion.
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hi are you sure it I should have been told PRIOR to the sale and if so where I can find it or a case law as i was told afterwards and now dont know what to do. Can I join the new propretors though the property as a 3rd pary as they should have know? they will then have to take action against the solicitors as both sides are say they only had to inform me of "the Sale" not the intended sale?
hi can you answer the above please
What form of restriction did you register please? Was it the form K restriction , namely "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 [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])."
yes thats it
Thanks. In order to transfer the title to the new owner the solicitor would have needed to give a certificate to the land registry that you had been notified. They needn't have told you before exchange but the property could not have been transferred without that certificate being provided. Land Registry practice guide 19 gives further information.
Equitable charges are not of great value for a determined debtor to get around I am afraid.
You can still pursue the debtor for the debt and consdier a range of enforcement methods against him
Is there anything else I can help you with?
Hi I was told after the sale there fore could do nothing and can not find the debtor. Im told I can still hold the purchaser responsible as they were aware . Please explain why notice should not be given before the sale then yoy can do something but after you can not?
The buyer cannot be held liable as from what you say the property was sold by two owners and therefore any interest you had in the property is overreached.
Notice need not be given before the transfer of the property at H M Land Registry because there is nothing in law that compels them to do so and this is reflected in the wording of the restriction.
You can still pursue the sellers of the property for the debt you are owed. If they owe more than £750 to you and you believe they have net assets, you could consider pushing for bankruptcy
There are other enforcement options too which can be more effective than an equitable charge.
Can I help you with anything further?
LL.B (Hons), Prof Dip Law & Practice. 9 years experience in private practice in England
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