Free Civil Legal Advice??
Discussion
Lurking Lawyer said:
Blown2CV said:
OK, does that mean i have just made the wrong application to the land registry, or i need to have the charging orders re-drawn?
As the orders currently show only his name, the land reg have told me all i can do is apply for restrictions to be put on his properties, citing the charging orders. The restriction apparently requires that he has to ask my permission to sell, however it doesn't require him to pay me anything so that would need to be some kind of agreement between him and I before I gave permission. Not sure I like that as he could just fail to honour his side and that would be that.
Where property is jointly owned, I'm afraid that's all your entitled to. As the orders currently show only his name, the land reg have told me all i can do is apply for restrictions to be put on his properties, citing the charging orders. The restriction apparently requires that he has to ask my permission to sell, however it doesn't require him to pay me anything so that would need to be some kind of agreement between him and I before I gave permission. Not sure I like that as he could just fail to honour his side and that would be that.
The Land Reg is correct - you can't register the charging order against the legal title if it's jointly owned and the debt is owed by only one of the co-owners. All you can do is register a Restriction against his beneficial interest in the equity.
Lurking Lawyer said:
Where property is jointly owned, I'm afraid that's all your entitled to.
The Land Reg is correct - you can't register the charging order against the legal title if it's jointly owned and the debt is owed by only one of the co-owners. All you can do is register a Restriction against his beneficial interest in the equity.
Which gives rise to an interesting question as to whether that amounts to "security", which if soprano is right would prevent you petitioning for his bankruptcy. I don't immediately known the answer to that.
LL I'm not sure that is correct. You are right that you can't charge the legal interest, but you can charge the beneficial interest of the debtor, unless something has changed of late?The Land Reg is correct - you can't register the charging order against the legal title if it's jointly owned and the debt is owed by only one of the co-owners. All you can do is register a Restriction against his beneficial interest in the equity.
Which gives rise to an interesting question as to whether that amounts to "security", which if soprano is right would prevent you petitioning for his bankruptcy. I don't immediately known the answer to that.
I think its CPR 73.4(2)(a) and there is an old case, Natwest v Stockman which is on point. Like I say this is not my area and I am happy to be corrected, but that is my understanding.
Eta- And s2(1)(a) of the charging order act
Edited by soprano on Thursday 23 October 14:23
Lurking Lawyer said:
Blown2CV said:
CAB said it was outside of their remit. I am not saying i can't afford solicitors' fees.
But you'd prefer not to pay them....?FWIW, I'm not sure there has ever been an obligation to provide a "free hour" or "free half-hour" in all the 20 years-ish I've been in practice. You used to be able to get legal aid for certain types of civil claim (usually means tested though, IIRC) and the solicitor may have been able to give you some initial advice and claim the cost back under the Green Form (?) scheme. But not all solicitors did legal aid work anyway, so there wasn't a general obligation.
I used to take cold calls to our Reception but I'd frequently spend 20-30 minutes on the phone and then never hear from the client again. A few years ago, we swapped to a system by which we charged a fixed fee (£75 plus VAT) for an initial meeting or an hour or so to give some preliminary advice and to allow the client to understand whether it was worth taking further. That's a substantial discount on my usual hourly rate.
soprano said:
Lurking Lawyer said:
Where property is jointly owned, I'm afraid that's all your entitled to.
The Land Reg is correct - you can't register the charging order against the legal title if it's jointly owned and the debt is owed by only one of the co-owners. All you can do is register a Restriction against his beneficial interest in the equity.
Which gives rise to an interesting question as to whether that amounts to "security", which if soprano is right would prevent you petitioning for his bankruptcy. I don't immediately known the answer to that.
LL I'm not sure that is correct. You are right that you can't charge the legal interest, but you can charge the beneficial interest of the debtor, unless something has changed of late?The Land Reg is correct - you can't register the charging order against the legal title if it's jointly owned and the debt is owed by only one of the co-owners. All you can do is register a Restriction against his beneficial interest in the equity.
Which gives rise to an interesting question as to whether that amounts to "security", which if soprano is right would prevent you petitioning for his bankruptcy. I don't immediately known the answer to that.
I think its CPR 73.4(2)(a) and there is an old case, Natwest v Stockman which is on point. Like I say this is not my area and I am happy to be corrected, but that is my understanding.
Blown2CV said:
I've almost doubled the debt orininally ordered to be paid by all these fees and activities related to enforcement. I am very concerned I won't get any of this back, and getting a solicitor involved clearly shifts the rate of increase in an already wobbly debt into overdrive.
Ouch.I think that explains your motivation there. What kind of sums are we talking about for the debt and enforcement?
It may be worth cutting your losses. It's easy for posters to advise, but having been in those shoes, something like this does end up taking a lot of your time and hassle, and sometimes it's better to cut your losses, or do something fast to simply put an end to it so you can psychologically 'move on'.
Edited by JustinP1 on Thursday 23 October 14:30
soprano said:
LL I'm not sure that is correct. You are right that you can't charge the legal interest, but you can charge the beneficial interest of the debtor, unless something has changed of late?
Perhaps the issue was more of me expressing myself badly - I think we're agreed on the point that only the debtor's beneficial interest can be charged. My understanding (albeit based on a hazy recollection of having looked at this some time ago!) was that you couldn't then register a charging order in the same way as you could if the debtor was the sole owner, and it didn't therefore offer the same degree of protection where you have joint owners.
TBH though, I don't do very much enforcement work any more and it's quite some time since I had to consider charging orders in any kind of detail!
Lurking Lawyer said:
Perhaps the issue was more of me expressing myself badly - I think we're agreed on the point that only the debtor's beneficial interest can be charged.
My understanding (albeit based on a hazy recollection of having looked at this some time ago!) was that you couldn't then register a charging order in the same way as you could if the debtor was the sole owner, and it didn't therefore offer the same degree of protection where you have joint owners.
TBH though, I don't do very much enforcement work any more and it's quite some time since I had to consider charging orders in any kind of detail!
My recollection is also somewhat hazy! It doesn't seem to make sense that if you have a charge albeit against a beneficial interest rather than the legal title that you could not register it under the Charges Register. I am also sure that I have seen charges registered against the beneficial interest of a person in the charges register although I have none laying around to check. It would just mean the debt is paid from the debtors share.My understanding (albeit based on a hazy recollection of having looked at this some time ago!) was that you couldn't then register a charging order in the same way as you could if the debtor was the sole owner, and it didn't therefore offer the same degree of protection where you have joint owners.
TBH though, I don't do very much enforcement work any more and it's quite some time since I had to consider charging orders in any kind of detail!
Otherwise debtors could escape payment simply by virtue of being a co rather than single owner.
basically it's pretty stupid if they're a married couple as financially they are at least in some way merged. It's not like the proceeds from the sale will be divided into two separate bank accounts. They probably won't see it at all, but that's another matter! I don't really care if he owes me the money from their joint 100% or from his individual 50%, it's the same debt and it would be paid from the same ultimate pot. All v frustrating.
soprano said:
What does the charging order of the court you have say? It should say that the beneficial interest of the debtor stands charged with X if the application has been made correctly and the order drawn correctly.
Court Order said:
... the judgement debtor is the owner of, or has beneficial interest in the asset described in the schedule below.
own
...
The address of the land or property charged is 123 crap street, scumbagtown etc
own
...
The address of the land or property charged is 123 crap street, scumbagtown etc
soprano said:
My recollection is also somewhat hazy! It doesn't seem to make sense that if you have a charge albeit against a beneficial interest rather than the legal title that you could not register it under the Charges Register.
I think in the OP's circumstances all he is entitled to register is a Restriction. This entitles him to be told if the judgment debtor intends to dispose of the property, but doesn't actually allow him to prevent the sale or insist on the judgment debt being discharged as a precondition of the Restriction being released. I think the Restriction is overridden and falls away if the sale proceeds, once notice has been given.Of course, prospective purchasers may well get antsy and want it removed before they will proceed - it has a certain "hassle" value to the creditor. Being notified of the sale also gives notice that there may be a source of funds to enforce the judgment against arising from the sale - but in practice probably not, since any equity will probably go into the property being purchased with the sale proceeds.
I've just remembered why I tend to leave enforcement work to others in the team!!
aha i thought unless the sale had been forced through a pre-existing charge (pre-existing before the restriction came into force i mean) then i could indeed stop the sale, as it would require my consent (Land reg says). If it was forced in this way i would still be notified but could not affect proceedings.
Blown2CV said:
soprano said:
What does the charging order of the court you have say? It should say that the beneficial interest of the debtor stands charged with X if the application has been made correctly and the order drawn correctly.
Court Order said:
... the judgement debtor is the owner of, or has beneficial interest in the asset described in the schedule below.
own
...
The address of the land or property charged is 123 crap street, scumbagtown etc
own
...
The address of the land or property charged is 123 crap street, scumbagtown etc
soprano said:
Blown2CV said:
soprano said:
What does the charging order of the court you have say? It should say that the beneficial interest of the debtor stands charged with X if the application has been made correctly and the order drawn correctly.
Court Order said:
... the judgement debtor is the owner of, or has beneficial interest in the asset described in the schedule below.
own
...
The address of the land or property charged is 123 crap street, scumbagtown etc
own
...
The address of the land or property charged is 123 crap street, scumbagtown etc
The interest of the judgement debtor Mr Dick Wad in the asset as described in the schedule below standard charged with payment of £X together with any further interest becoming due and the costs of the application.
Blown2CV said:
aha i thought unless the sale had been forced through a pre-existing charge (pre-existing before the restriction came into force i mean) then i could indeed stop the sale, as it would require my consent (Land reg says). If it was forced in this way i would still be notified but could not affect proceedings.
TBH, if that's what HMLR is telling you, it's probably right! Far more likely to be right than my half-remembered partial recollection of the rules on charging orders in respect of a sole debtor and jointly-owned property. Now, if you were paying me, I'd go and look at the Rules and check 
As itis, I think I'll bow out semi-gracefully at this point before I embarrass myself further
Quicker than forcingredients a sale,and if a small debt,maybe done within a month.Lurking Lawyer said:
Blown2CV said:
aha i thought unless the sale had been forced through a pre-existing charge (pre-existing before the restriction came into force i mean) then i could indeed stop the sale, as it would require my consent (Land reg says). If it was forced in this way i would still be notified but could not affect proceedings.
TBH, if that's what HMLR is telling you, it's probably right! Far more likely to be right than my half-remembered partial recollection of the rules on charging orders in respect of a sole debtor and jointly-owned property. Now, if you were paying me, I'd go and look at the Rules and check As itis, I think I'll bow out semi-gracefully at this point before I embarrass myself further
I think LL is correct in his advice - every day is a school day
You can obtain a charging order against the beneficial interest of the debtor but in situations such as this as the LR have told you, you can only register it as a restriction against the property with the implications that LL sets out above. Please do get independant legal advice on this though, as I have said it is not my area and it has been a number of years since I have applied for one.
With regards to to a Garnishee Order, I think they are called Third Party Debt Orders these days. Another possibility is an Attachment of Earnings Order if the debtor is employed, or as JustinP (I think) above said, petitioning for bankruptcy can be a very effective method of obtaining payment for a debt.
As LL said above the issue of security does pose an interesting question, as you cannot petition on a secured debt. As to whether a restriction falls within the meaning of 'security' thus preventing a petition - I am afraid I do not know the answer.
You can obtain a charging order against the beneficial interest of the debtor but in situations such as this as the LR have told you, you can only register it as a restriction against the property with the implications that LL sets out above. Please do get independant legal advice on this though, as I have said it is not my area and it has been a number of years since I have applied for one.
With regards to to a Garnishee Order, I think they are called Third Party Debt Orders these days. Another possibility is an Attachment of Earnings Order if the debtor is employed, or as JustinP (I think) above said, petitioning for bankruptcy can be a very effective method of obtaining payment for a debt.
As LL said above the issue of security does pose an interesting question, as you cannot petition on a secured debt. As to whether a restriction falls within the meaning of 'security' thus preventing a petition - I am afraid I do not know the answer.
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