Charging Orders & Tenants in Common

[Seamus]

Re: Charging Orders & Tenants in Common

Seamus, why not read this thread by one of our members who has recently been dealing with creditors following the death of his wife - although there were no COs involved in this instance:

http://forums.all-about-debt.co.uk/s...ead.php?t=6806

Thanks PlanB, will read it now.

S

[PlanB]

Re: Charging Orders & Tenants in Common

as a partner in a home co-haibitating as couple she was entitled to her share, so that is what happened after a fuss over Bills, wher I lost out as usual the male does.

I would rather my ex-husband got my money than MBNA or Barclaycard woudn't you

If there's a lawful way to re-arrange one's finances to keep creditors at arm's length then I'm all for it and family comes first. But setting up some of these complicated schemes to transfer your interest in a property to someone else can cost more in legal fees and subsequent tax bills that I think it needs proper legal advice upfront (which isn't free either). Most importantly if a creditor can see that this was done deliberately to avoid payment then I would expect the financial loophole could turn into a pothole where the deal can be undone

[The Tech Clerk]

Re: Charging Orders & Tenants in Common

I would rather my ex-husband got my money than MBNA or Barclaycard woudn't you

If there's a lawful way to re-arrange one's finances to keep creditors at arm's length then I'm all for it and family comes first. But setting up some of these complicated schemes to transfer your interest in a property to someone else can cost more in legal fees and subsequent tax bills that I think it needs proper legal advice upfront (which isn't free either). Most importantly if a creditor can see that this was done deliberately to avoid payment then I would expect the financial loophole could turn into a pothole where the deal can be undone

You are right there, the cost involved and probably issues raised. would need to be as you say investigated before any such action.

[Seamus]

Re: Charging Orders & Tenants in Common

It would be really useful if we could find something that actually details the process that was followed at the time of completion to circumvent the restriction, so that the issue can be discussed with conveyancing firms even before appointing one. Once you have appointed a firm, if you find they won't play ball, there isn't much you can do at that stage, especially if you are not able to explain how others have handled a similar situation. They will just tell you it can't be done, as was the case with tish5670 ---> allaboutFORUMS

Unfortunately the post above provides no details whatsoever and CAG, where the link above resides, is not the most reliable source, if we followed the advice dished out on there, we'd all have CCJs!

Sounds like no hats will be eaten yet... other than by Kirsty Allsop, the original hat eater!

I agree, no hats to be eaten yet!
I have found a few references now to successes in selling with a restriction, but no details so I wont post anymore of those on here. As mentioned by someone on another forum, the problem is, when someone has a success like that they often disappear from the forum because the problem is all over for them, hence no details of what happened from them. I'll continue to search the internet on everything to do with charging order and tenants in common and also selling with a restriction, but I'll only post something I find that has details/proof with it. Is that fair?

S

[The Tech Clerk]

Re: Charging Orders & Tenants in Common

I agree, no hats to be eaten yet!
I have found a few references now to successes in selling with a restriction, but no details so I wont post anymore of those on here. As mentioned by someone on another forum, the problem is, when someone has a success like that they often disappear from the forum because the problem is all over for them, hence no details of what happened from them. I'll continue to search the internet on everything to do with charging order and tenants in common and also selling with a restriction, but I'll only post something I find that has details/proof with it. Is that fair?

S

Was it not something to do with the time it took of notification to the C.O. party to be notified and the said money was spent so not available to be claimed by the C.O. party? or on those lines.?

[Seamus]

Re: Charging Orders & Tenants in Common

Was it not something to do with the time it took of notification to the C.O. party to be notified and the said money was spent so not available to be claimed by the C.O. party? or on those lines.?

Yes, with a restriction the requirement is only to inform the creditor that the property has been sold, the sale itself can't be stopped, so if you sell the property and spend the money, there is not much the creditor can do about it. The debt remains but without a property it reverts back to an unsecured debt. Our problem on here is finding the details of successes from people who have done this, the problem being that many solicitors/conveyancers dont seem to understand how a restriction is different from a full charging order and the fact that if someone buys a property with a restriction on it doesnt have to worry because that restriction will automatically drop off once the sale has gone through. This has been confirmed by the Land Registry.

S

[PlanB]

Re: Charging Orders & Tenants in Common

I agree, no hats to be eaten yet!
I have found a few references now to successes in selling with a restriction, but no details so I wont post anymore of those on here. As mentioned by someone on another forum, the problem is, when someone has a success like that they often disappear from the forum because the problem is all over for them, hence no details of what happened from them. I'll continue to search the internet on everything to do with charging order and tenants in common and also selling with a restriction, but I'll only post something I find that has details/proof with it. Is that fair?

S

On no please post what you like because it's good to discuss these things. I just don't want anyone to think it's a dead cert that getting a Restriction on your property is automatically meaningless. Most of the debate on the 40 page MSE thread was asking questions but not answering them. The *success* that I saw revolved around a possible procedural error when the CO was applied at Land Registry so it's small wonder that the creditor didn't get their money on the property sale.

Other debate was all about creating Tenants in Common with unequal interest in the property in order to frustrate potential COs. All the reasearch I've seen so far indicates that this imbalance is ignored in legal terms. This was your first line of enquiry and it's a good one

The Tenants in Common issue usually revolves around an existing co-owner. But on the MSE thread there was much talk about transferring an interest in your property to a parent which could have serious consequences unless you outlive them. Once an interest has been transferred it can be sold to anyone or left to anyone in a Will so you could find your family home co-owned by a total stranger And if your co-owner had a tax bill on their death then HMRC could pursue that debt against their interest in your house couldn't they

Neither CAG nor MSE delved deep enough into this legal minefield

[The Tech Clerk]

Re: Charging Orders & Tenants in Common

Yes, with a restriction the requirement is only to inform the creditor that the property has been sold, the sale itself can't be stopped, so if you sell the property and spend the money, there is not much the creditor can do about it. The debt remains but without a property it reverts back to an unsecured debt. Our problem on here is finding the details of successes from people who have done this, the problem being that many solicitors/conveyancers dont seem to understand how a restriction is different from a full charging order and the fact that if someone buys a property with a restriction on it doesnt have to worry because that restriction will automatically drop off once the sale has gone through. This has been confirmed by the Land Registry.

S

Yes that was the area in question.

[Seamus]

Re: Charging Orders & Tenants in Common

On no please post what you like because it's good to discuss these things. I just don't want anyone to think it's a dead cert that getting a Restriction on your property is automatically meaningless. Most of the debate on the 40 page MSE thread was asking questions but not answering them. The *success* that I saw revolved around a possible procedural error when the CO was applied at Land Registry so it's small wonder that the creditor didn't get their money on the property sale.

Other debate was all about creating Tenants in Common with unequal interest in the property in order to frustrate potential COs. All the reasearch I've seen so far indicates that this imbalance is ignored in legal terms. This was your first line of enquiry and it's a good one

The Tenants in Common issue usually revolves around an existing co-owner. But on the MSE thread there was much talk about transferring an interest in your property to a parent which could have serious consequences unless you outlive them. Once an interest has been transferred it can be sold to anyone or left to anyone in a Will so you could find your family home co-owned by a total stranger And if your co-owner had a tax bill on their death then HMRC could pursue that debt against their interest in your house couldn't they

Neither CAG nor MSE delved deep enough into this legal minefield

Rather than discussing the charging order/restriction question then, which seems to be covered elsewhere, I'll restrict myself to searching and discussing the issue of tenants in common. I've got my teeth into this subject and rather than do it as a way to ''hide assets'' I was approaching it as being fair to my wife who has put more into not only the buying of the house, but also much of the improvements in the house (all due to a long period of poor earnings that I had when I was self employed.) If I can find something that is legal and can help her and others, it can only be a good thing, so I'll keep looking.

S

[The Tech Clerk]

Re: Charging Orders & Tenants in Common

Quote|:- I've got my teeth into this subject and rather than do it as a way to ''hide assets''

Hope it is not False Teeth?? lol

[PlanB]

Re: Charging Orders & Tenants in Common

Our problem on here is finding the details of successes from people who have done this, the problem being that many solicitors/conveyancers dont seem to understand how a restriction is different from a full charging order and the fact that if someone buys a property with a restriction on it doesnt have to worry because that restriction will automatically drop off once the sale has gone through. This has been confirmed by the Land Registry.

What you have got to consider is whether the solicitor acting for the buyer and their mortgage company is willing to participate in this timescale dealing which I doubt because they're instructed to look after their own client's interests first and foremost. The mortgage lender most certainly won't release the funds.

It's my belief that a Restriction doesn't just "drop off" someone has to apply to the LR to get it removed. Did you also read the poster on MSE who revealed that their purchaser was stuck with the Restriction on their property after they had bought it because neither solicitor had informed the creditor which is illegal.

I've said enough on this topic

[Seamus]

Re: Charging Orders & Tenants in Common

Quote|:- I've got my teeth into this subject and rather than do it as a way to ''hide assets''

Hope it is not False Teeth?? lol

lol, thankfully, not yet!

S

[Seamus]

Re: Charging Orders & Tenants in Common

What you have got to consider is whether the solicitor acting for the buyer and their mortgage company is willing to participate in this timescale dealing which I doubt because they're instructed to look after their own client's interests first and foremost. The mortgage lender most certainly won't release the funds.

It's my belief that a Restriction doesn't just "drop off" someone has to apply to the LR to get it removed. Did you also read the poster on MSE who revealed that their purchaser was stuck with the Restriction on their property after they had bought it because neither solicitor had informed the creditor which is illegal.

I've said enough on this topic

I agree, the main problem seems to be that mamy solicitors dont understand the difference, so finding one who does and is prepared to educate the buyers solicitor seems to be the course of action to take, and also one that will act legally, unlike the one in your second paragraph.

S

[PlanB]

Re: Charging Orders & Tenants in Common

Of course this all presumes that once you've sold your home you will never buy or own another one ever again, because what is to stop the frustrated creditor applying for a CO (Restriction) on any subsequent property or asset you own The debt doesn't evaporate even if you are successful in wriggling out of the Restriction (and I genuinely hope some people can) it remains as the original CCJ.

Although it's rare for a Claimant to get an attachment of earnings against a Defendant due to non-payment of a CCJ, what would the DJ think if asked to order an attachment of earnings because the Defendant has been seen to avoid the original CO (Restriction) ordered by a court

Please don't misunderstand me, I'm a passionate supporter of not paying creditors whenever possible. At the same time I don't want to lull people into a false sense of security

[Seamus]

Re: Charging Orders & Tenants in Common

Of course this all presumes that once you've sold your home you will never buy or own another one ever again, because what is to stop the frustrated creditor applying for a CO (Restriction) on any subsequent property or asset you own The debt doesn't evaporate even if you are successful in wriggling out of the Restriction (and I genuinely hope some people can) it remains as the original CCJ.

Although it's rare for a Claimant to get an attachment of earnings against a Defendant due to non-payment of a CCJ, what would the DJ think if asked to order an attachment of earnings because the Defendant has been seen to avoid the original CO (Restriction) ordered by a court

Please don't misunderstand me, I'm a passionate supporter of not paying creditors whenever possible. At the same time I don't want to lull people into a false sense of security

I agree entirely, proof must be found before people can believe it 100% and I'm digging into it like Colombu at the moment!

As for buying another property, if it was me who successfully sold with a restriction, any further property purchases would be in my wife's name as she has a perfectly clean credit file, unlike me. I would make sure that I never owned anything that could have a charging order slapped on it.

S