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Kasare
Kasare, Solicitor
Category: Family Law
Satisfied Customers: 204
Experience:  Solicitor, 10 yrs plus experience in civil litigation, employment and family law
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I have a legal charge % of final sale price on former

Customer Question

I have a legal charge for 35% of final sale price on former matrimonial home.Agreed to, to enable daughter to have security.
Now daughter is 26 and working away with her own home I would like to obtain my cash.Former wife has had property on the market for over 5 years failing to give viewing access, accept offers etc.
Can I force sale of the property?
Submitted: 1 year ago.
Category: Family Law
Expert:  Clare replied 1 year ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
What is the exact wording of the Order relating to the Property?
Clare
Customer: replied 1 year ago.

The Respondent do transfer to the Petitioner within 28 days or final decree all his legal and beneficial interest in the freehold property at*****Keyham Plymouth, registered at H.M. Land Registry under title number DN235530 subject to the mortgage in favour Of Halifax Plc, on condition that as from the date of said transfer the said property do stand charged by way of legal charge as security for the payment to the Respondent of a sum equal to 35% of the net proceeds of sale such charge not to carry interest, the net proceeds of sale being defined as the sale price less any outstanding mortgage only. PROVIDED ALWAYS that such charge shall not be exercisable until:

(a) the death of the petitioner; or

(b) the remarriage or cohabitation of the Petitioner for a period in excess of six months

(c) the voluntary sale of the said property by the Petitioner

Which ever shall first occur provided .......child of family 09/01/89....is in occupation as a minor..

Ex wife has had the property on the market for 5 years having changed agent many times and refused at least one very close offer. 2014 I spoke to current agent and found ex to be constantly unavailable for viewings.

Expert:  Clare replied 1 year ago.
Hi
The wording is clumsy but can be interpreted as meaning that the the charge is not enforceable whilst the child is a minor unless one of those events occurs.
How does the actual Charge read?
Clare
Customer: replied 1 year ago.

PROVIDED ALWAYS that such charge shall not be exercisable until:


(a) the death of the petitioner; or


(b) the remarriage or cohabitation of the Petitioner for a period in excess of six months


(c) the voluntary sale of the said property by the Petitioner


Which ever shall first occur provided that in any event the said legal charge shall not be exercisable without the leave of the court while the child of the family Elizabeth.DOB 09/01/89....is in occupation of the said property and is still a minor or of full age but recieving full-time education or training.

Elizabeth now away from property with job and own home.

shall not be exercisable without the leave of the court can I therefore ask court for a revision of this order?

Expert:  Clare replied 1 year ago.
Hi
is that the wording of the actual Charge NOT the court order.
The Charge should have been Registered at the Land Registry when the property was transferred into your ex's sole name
Clare
Customer: replied 1 year ago.

I do not have a copy of the actual charge only the court order.

Expert:  Clare replied 1 year ago.
Hi
I suggest that you get a copy of the Charge from the Land Registry to be certain of the wording before you take the matter further.
In the mean time - how much is the property worth and how much is outstanding on the mortgage?
Clare
Customer: replied 1 year ago.

Market price 135,000 mortgage 12k appx

I HAVE APPLIED FOR COPY OF THE CHARGE

Expert:  Clare replied 1 year ago.
Hi
Last question I hope - was this an Order made by Consent or imposed by the court after a full hearing.
Was anything said about it being sold when your daughter finished secondary education?
Clare
Customer: replied 1 year ago.

It was a consent Order.

My brief was advised that I wanted to have house sold after Elizabeth left home and education.

Mental state at that time I left too much to others and now feel let down.

John

Expert:  Clare replied 1 year ago.
Hi
It happens - do not make yourself feel bad about it
Is there anything that shows that this is what was agreed (the end of education part)
Clare
Customer: replied 1 year ago.

Cannot prove that this was my intent as solicitor left practice to look after wife shortly after.

Deeds arrived copy of charges section herewith.

(19.04.1988) REGISTERED CHARGE dated 14 March 1988 to secure the moneys including the further advances therein mentioned. 3 (29.10.2007) Proprietor: BANK OF SCOTLAND PLC (Scot. Co. Regn. No. SC327000) of Halifax Division, 1 Lovell Park Road, Leeds LS1 1NS. 4 (25.11.2003) REGISTERED CHARGE dated 27 March 2003. 5 (25.11.2003) Proprietor: JOHN MICHAEL ROBINS of***** Armada Way, Plymouth. 6 (05.10.2004) REGISTERED SUB-CHARGE of the Charge dated 27 March 2003 referred to above to secure the moneys charged thereon under section 16(6) of the Legal Aid Act 1988 or section 10(7) of the Access to Justice Act 1999. 7 (05.10.2004) Proprietor: LEGAL SERVICES COMMISSION (reference not supplied) of Land Charge Department, 13th Floor Exchange Tower, 2 Harbour Exchange Square, London E14 9GE and of DX100170, Docklands 2.

Expert:  Clare replied 1 year ago.
Hi
Can you go back online and Order a copy of the actual Charge Document (yours not the other two)?
I am hoping that it will be useful for us
Clare
Customer: replied 1 year ago.

land registry details ordered 2 to 4 days. John

Expert:  Clare replied 1 year ago.
Hi
That's fine
Clare
Customer: replied 1 year ago.

Have now received copies of actual charge docs from LRO and these have the same content as already advised to you.

It looks to me that short of getting the Court Order revised in my favour I shall just have to wait long term.

Or have a go at original solicitor for failing in ......

John

Customer: replied 1 year ago.
Relist: No answer yet.
Other than give info to you I have received no advice
I seek a refund.
Customer: replied 1 year ago.
Relist: No answer yet.

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