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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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I need to register a charging order nisi with land registry

Resolved Question:

I need to register a charging order nisi with land registry and need to know whether a restriction or unilateral/agreed notice is advised. There has been no payment regarding the financial settlement or periodic payments instructed and I wish to protect my interests.
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 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 :

In whose name is XXXXX XXXXX in question registered please?

Customer:

My ex husband, Martyn O'Brien. The property is registered in only his name

Joshua :

Thanks

Joshua :

you can register matrimonial homes notice against the property using the following form:

Joshua :

www.landregistry.gov.uk/_media/downloads/forms/HR1.pdf‎

Joshua :

the form needs to be posted to the following address:
Citizen Centre
Land Registry Wales Office
Tŷ Cwm Tawe
Phoenix Way
Llansamlet
Swansea
SA7 9FQ

Joshua :

there is no fee for registering the notice against the property

Joshua :

assuming the property is registered you will take the bottom of the two option boxes in panel nine

Customer:

The problem was it was not a matrimonial home, although it was bought within marriage and to compound matter, the sum relates to equity he withdrew from my property and promised to repay (but never did). I called land registry this morning to be informed of practice guide 19 relating to land registry act 2002 stating restricted notices versus unilateral or agreed notices, but you seem to be advising differently. I have a hearing on 17/4/14 to finalise this, but would registering a notice against the property suffice for now (I assume in case the settlement amount changes in any way?)

Joshua :

Ah this is a second property which he owns as opposed to the home you both lived in as the matrimonial home?

Customer:

Yes. We both acquired flats during marriage and kept what we had in the settlement although he owes me for what he borrowed so to speak.

Customer:

I have been advised by the District Judge to inform land registry of my interest and land registry advised of restricted or unilateral/agreed notices (hence my confusion on this). My concern is whilst trying to secure the value granted on his property, him finding a way to remove the equity without notice and invalidating my claim

Customer:

At the point of divorce the matrimonial home was rented if that helps clarify matters

Joshua :

Thanks. Have you applied for a property adjustment order or some other form of ancillary relief regarding his assets as part of the divorce to date?

Customer:

He works online from home on a basic wage since October 2013 and claims he has no money to pay. He has no other assets and we have 4 children between us. The Judge has awarded the lump sum repayment for equity borrowed in the division of assets and included monthly maintenance repayments to date in the awarded sum to be charged on to the property. I need to know how best to secure this interest.

Joshua :

thank you. And you have this court order from the judge in your possession?

Customer:

Yes, I have 2 documents - a general form of Judgement or Order and a notice of Adjourned Interim Charging Order received earlier this week

Joshua :

Thanks. One final question - the interim charging order. Is this in respect of the property against which you wish to register notice or another property?

Customer:

yes, this is in respect of my ex husbands property with which I wish to register my notice/claim/interest

Joshua :

Thank you.

Joshua :

OK in that case you will not use the above form. There is a different approach to take as follows.

Joshua :

You will need the following form:

Joshua :

www.landregistry.gov.uk/_media/downloads/forms/RX1.pdf‎

Joshua :

Most of the form is straightforward save for the following:
In panel 8 you will tick the first box under section E

Customer:

this is the restricted notice, but what is the 'downside' to this and what happens if the judgement awarded in a few weeks time differs? what do I need to do then please?

Joshua :

In panel 9 you will enter the following restriction:


No disposition of theregistered estate, other than a disposition by the proprietor of any registered charge registered before the entry of this restriction, is to be registered without a certificate signed by the applicant for registration or their conveyancer that written notice of the disposition was given to [Your name] at [address for service], being the person with the benefit of [an interim or a final] charging order on the beneficial interest of [name of your husband] made by the [name of court] on [date] (Court reference [insert reference]).

Joshua :

In panel 12 you will write "Interim Charging Order" and "Am interim charging order dated [date] ordered by the [name] county court on [date]

Joshua :

for now you can register the restriction based upon the interim charging order that you have. As you say, there is then a second hearing to make the interim charging order final. until the charging order is made final, you will have to wait for the outcome of the hearing. If the court decides not to allow the charging order then the above restriction would have to be removed but on the basis that it is confirmed, then the restriction will remain and will prevent your husband from disposing of the property without your consent

Joshua :

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

Customer:

What happen if the sum of the order changes? Would I need to re-apply for an amended restricted notice and are their addition fees for this?

Joshua :

once you have the final charging order, then you can apply to replace the above restriction which will be based on the interim charging order with the final charging order. this will incorporate all of the terms ordered by the final charging order as a restriction against the property

Joshua :

is there anything else I can help you with?

Customer:

is there a 'downside' to the restriction notice as the person I spoke to in land registry this morning stated there were pros and cons to this and I don't know about the cons.

Joshua :

restriction is not absolutely foolproof. If there is a mortgage on the property, the lender can enforce its power to sell despite your restriction. in addition, a charging order does not actually get you any money. All it does is secure and interest against your husband's interest in respect of the property. It prevents him from selling the property of remortgaging the property without your consent but you may wish to take further steps to actually enforce any order against your husband to obtain monies owed to you. However, registering a charging order against the property has benefit insofar as it does prevent your husband from selling the property without your permission and this gives some degree of security in that respect

Customer:

Thank-you for clarifying that for me. I appreciate the help.

Joshua :

A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me

Customer:

if the lender forces him to sell, will my interest still be protected?

Joshua :

if the lender exercises a power of sale, this will override the charging order that you have on the property. You will still have a claim as against your husband however the lender security trumps yours and this is one of the "downsides" for want of a better term of a charging order. if this were to happen, you can still pursue your husband for any equity in the property which may be returned to him by the lender or if you have knowledge that repossession is occurring, you could seek a third party debt order to order the lender to pay any equity left over from the repossession process to you rather than your husband in order to satisfy your interest

Customer:

so to be clear, having a restricted notice does not ensure any funds from a sale, whether enforced or voluntary, will not automatically be forwarded to the creditors registered with land registry after the mortgage has been repaid? The money goes directly to the mortgagee and I have to find a way to intercede or get funds directly from him after the sale?

Joshua :

that is essentially correct. If I may, we are discussing a "Restriction" rather than a "Restricted notice" - not to be pedantic but simply to avoid any confusion you may have with the land Registry on the point. if your husband wishes to sell remortgage she will have to approach you to obtain your consent under the charging order full stop presumably you would not give that consent until you had reached an agreement with regards XXXXX XXXXX If the lender chooses to exercise its power of sale, it overrides your restriction but you can seek a further order known as a third-party debt order from the court to order the lender to pay any surplus of equity after repayment of their mortgage to you rather than your husband

Joshua :

is there anything else I can help you with?

Customer:

ok. I assume if there are other creditors noted with land registry with interest in recouping debts, it's case of first listed, first repaid as well?

Joshua :

Exactly so. there is an order of priority according to the date any charge is registered against the property. So for example if there is a mortgage there already, that is why your charging order is subservient to that as we've discussed above.

Customer:

OK. Thank-you. I appreciate the clarification. You have been of great help.

Joshua :

A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Customer:

Certainly - you've been great and I will be glad to give you that feedback and rate your service. Hope you have a good day and enjoy your weekend :)

Joshua :

Many thanks. And you.

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