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Nicola-mod
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Category: Family Law
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I am selling a joint owned mortgage , my ex wife has agreed

Customer Question

I am selling a joint owned mortgage , my ex wife has agreed that I am to receive all the net proceeds , she was paid of in 2007 but i was unable to have her name removed from the deeds as the mortgage company would not give me a new mortgage at the time. The conveyancing solicitor informed me that there are 2 restrictions on the title deeds relating to my ex-wife they where issued in 2009 without my knowledge. I have asked the solicitor if these restrictions have to be paid as there are attached to my ex-wife and not me but she tells me they must be paid in full or the property sell we fail. I have done some research and my assumption seems to be backed up by the land registry office , which I sent to the solicitor she replied that " it is her rule to pay the creditors on completion" is this correct ? Regards Shaun
Submitted: 1 year ago.
Category: Family Law
Expert:  Aston Lawyer replied 1 year ago.

Hi Shaun,

Thanks for your enquiry.

I am afraid your Solicitor is correct. A Seller's Solicitor has to provide an Undertaking to the Buyers Solicitor before completion that all financial charges (whether it be in the form of a Mortgage or a Restriction) registered against the property will be removed/paid off on completion. If the Seller's Solcitor does not then comply with this Undertaking, they are personally liable to rectify the problem.

Likewise, the Land Registry will not register the Buyer as the new owner until any Restrictions have been complied with or removed, as the case may be.

Your Solicitor will therefore want to see evidence that these 2 Restrictions will be removed/complied with/there are sufficient funds to clear them, before committing to an exchange of Contracts.

I hope this assists you and sets out the legal position.

Kind Regards

Al

Customer: replied 1 year ago.

Thanks for your reply although my original question was posted to some one else who had dealt with a similar question to mine, never the less I have been doing a little research on the matter and found this posted by a property law firm from Manchester:

if, however, the property is owned jointly the Charging Order cannot takes effect as an equitable charge over the legal estate but over the debtor�s beneficial interest in the property which means that it can be overreached, i.e. effectively the property can be sold free of the Charging Order and there is very little that can be done to protect the creditor�s interest.

Where the property is jointly owned no type of registration confers priority over the charging orders [equitable charges over the debtor�s beneficial interest]; those created first rank over later such charges but all can be overreached by a sale by the joint owners.

Looking forward to your reply

Expert:  Aston Lawyer replied 1 year ago.

Hi Shaun,

Apologies for answering- whichever expert you had requested was unable to assist you at this time for some reason or another,nd hence your question has "been opened to all other available experts".

I will therefore opt out.

Al

Customer: replied 1 year ago.

Thank you Aston here was part of the text which I mentioned which appears to be of a similar question dealing with a restriction and not a charging order.

5. (20.08.2010) RESTRICTION: No disposition of the registered estate, other than a disposition by the proprietor of any registered charge registered before an entry of this restriction, is to be registered without a certificate signed by the applicant for registration on their conveyancer that written notice of the disposition was given to (Name) at (address) and (Email address)

Expert: Clare replied 1 year ago.

Hi

Excellent news

The only requirement is for her to be given Written Notice of the sale.

had there been any equity then the position might be a little more difficult - but there is not so the sale can go ahead without problem.

So far as the agreement you signed is concerned she can (if she wishes) sue you for the money (though you can of course defend it) - what she cannot do is prevent or hold up the sale

I hope that this is of assistance - please ask if you need further details

Clare

Clare, Family Solicitor

Category: Family Law

Satisfied Customers: 30080

Experience: I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years

Clare and 2 other Family Law Specialists are ready to help you

Ask your own question now

Customer: replied 1 year ago.

Hi Clare, sorry I havent rated your answer yet. My conveyancer is still assures the sale cannot go through, as the new buyer will not be able to register their names with me Ex on the register. I'm stuck between a rock and a hard place so have an appointment tomorrow with yet another solictor to try and figure this out. Thanks for your patience

Expert: Clare replied 1 year ago.

Hi

Do not worry - it is a common misapprehension (and one I shared for years)

Ask your solicitor to read the Restriction again - all that is required is that Notice is Given - that and no more.

They can phone the land Registry if they need confirmation

Clare

Expert:  Nicola-mod replied 1 year ago.
Hello,
It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you with your question, but sometimes finding the right professional can take a little longer than expected.
I wonder whether you're OK with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 1 year ago.

Hi Nicole,

I had expected a reply from one of your experts who had dealt with a similar question, but it appears I was misled to some degree by the banner saying she was there ready to answer my question. So I think it's best if the question is cancelled and a refund made to my debit card for the £36 I paid on Saturday.

Regards,

Shaun XXXXXX

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