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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Can I go back to court after a decision was made in August

Customer Question

Can I go back to court after a decision was made in August 2013.
The IP produced a new application just before we went in to see the judge. The judge ruled on it but I had no time to seek legal advice.
The IP wanted to split the family home from the land as it has a paddock. The judge ruled he could put a charge on the land but not the family home which reverted back to me.
The whole property is under the same mortgage. The building society had refused permission for the land to be split as the property was in negative equity.
The judge did allow the IP to have a charge on the land and the judgement came back stating that the land is legally split from the house.
The IP still has his original charge on the whole of the property which he is now refusing to remove.
Is this judgement lawful given I had no legal advice and no one knew about the fresh application until we walked into court.
Also, if it is lawful, should the charge on the whole property remain?
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I clarify - IP = Insolvency practitioner please?

Joshua :

If so who was subject to bankruptcy or insolvency proceedings? Was it your partner?

Customer:

Sorry, Yes, IP is Insolvency Practitioner.

Customer:

It was me who declared bankruptcy and the property is in my name.

Customer:

Sorry, IP is Insolvency Practitioner.

Joshua :

Thank you. Is the property in your sole name please?

Customer:

Yes it is. my bankruptcy was5th Feb 2010 and the IP went back to court for possession of the house on 4th Feb 2013.

Joshua :

Thank you. Do you have the wording of the charge from your title?

Customer:

Without checking, it says that the property (then the name of the property and title no) is subject to a bankruptcy restriction.

Joshua :

Thank you. From what you say does the court order specifically limit the charge to part of the land only? Do you have the court order available to confirm?

Customer:

It say "the land edged in red on the attached plan shall not be deemed to form part of the dwelling house known as ...and registered under the title of...for the purposes of s.283a and s.385 of the insolvency act 1986

Joshua :

Thank you. There would appear to be two components to this.

Joshua :

The first is that if you have been made bankrupt then all of your assets as you will know pass to the IP as trustee and accordingly in principle has has a claim against your property though this will be second to any mortgage on the property and accordingly if the property is in negative equity the IP should not be overly concerned with the same. From what you say the court has ordered that the paddock land should not be considered part of your dwelling. This is important because the trustee has three years to deal with your property following the date of the bankruptcy order failing which it is returned to you.

Joshua :

However if the paddock land has been ruled to not form part of your dwelling this three year limit does not apply and the Trustee will have longer to potentially claim the paddock area following bankruptcy.

Joshua :

He is entitled to maintain a charge against the whole property as above for up to three years but if he has not dealt with the proprety by then which he cannot if in negative equity then this will be returned to you.

Joshua :

It is possible to appear the judgement but in order to do so you would need to make an argument that the paddock is a necessary component of your dwelling and should be considered part and parcel of your dwelling house and so come within the there year rule. Typically a dwelling would be deemed to be the dwelling and an appropriate sized garden commensurate with the size of the dwelling and that additional paddock land would not form part of the curtilage so it may be difficult to overturn this judgement.

Customer:

Being as we have passed the 3 year rule and the property has reverted back to me, is this restriction now incorrect? I have asked the IP to remove it but he has ignored my request and the restriction still appears. The judge said in court that the IP will have a charge over the land but the charge states the whole dwelling house.

Joshua :

If you are beyond the 3 year mark then based on the court order the restriction will still bind the paddock but not the main dwelling house. Accordingly you can consider asking the Registrar to add a note to the bankruptcy restriction that under the terms of the court order you have the restriction only applies to the land edged [colour] on the plan - namely the paddock area as the bankruptcy restriction should no longer apply to the remainder of the dwelling house by virtue of s283A of the Insolvency Act.

Joshua :

If you decide you want to challenge the above judgement, you would need to consider obtaining a surveyors opinion that the paddock land should be consider a necessary element of the dwelling house along with your garden. If you can obtain such an opinion, you have 21 days to appeal a court judgement and are well out of time based on what you say. Accordingly you would need to seek permission from the Court of Appeal to appeal the judgement.

Joshua :

This is the form you would require to do so bearing in mind of course the above:
http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=388

Joshua :

Is there anything above I can clarify for you any further?

Joshua :

Does the above answer all your questions or is there anything I can clarify or help with any further?

Customer:

that's great. Thank you for all your help. Have a good day.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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