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Alex J.
Alex J., Solicitor
Category: Law
Satisfied Customers: 3496
Experience:  Solicitors 2 years plus PQE
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I have a pre-emption agreement on some shooting rights which

Customer Question

I have a pre-emption agreement on some shooting rights which is a mirror pre-emption to the sale of a piece of woodland owned by myself . The current owner of the shooting rights, unbeknown to myself secured a loan from a third party, using the shooting rights as security and granting a charge to said third party on them. The agreement states that the seller (in this case the owner) shall not make a disposal during the Pre-emption period unless I have been given an offer of notice. I recently placed the woodland on the market and, in the spirit of the agreement complied with the terms by serving the notice of offer which was declined.
The definition of 'a disposal' is stated in the agreement as:
'a sale gift exchange transfer grant declaration of trust lease or agreement for lease except for a term not exceeding three years at the open market rent etc.'
As he has accepted a charge on the shooting rights is this in breach of the agreement? It is obviously detrimental to my position and to my rights? The owners of the shooting rights declared themselves bankrupt and although the shooting rights were siezed as an asset by the Official Receiver, the officer stated that they were not interested in them because any money from a sale would pass to the owner of the chasrge. I was therefore denied the opportunity of buying them. Please advise if I have any case in law to follow to rectify/take legal action against the people who granted the charge?
Submitted: 1 year ago.
Category: Law
Expert:  Alex J. replied 1 year ago.
Hi,
Thank you for your question and welcome.
My name is ***** ***** I will assist you.
Where was the charge registered? If at all?
How much are the rights worth?
Is there any way the charge holder could have been aware of your rights?
Kind regards
AJ
Customer: replied 1 year ago.

Hi AJ

Apologies for the delay in replying to your email but I have been trying to find the answers to your questions.

The Land Registry has no record of the Charge (I have ascertained this today).

To me it seems that the 'seller' has in granting a charge on these rights effected a 'Disposal' and in the terms of the pre-emption agreement a 'Pre-emption Event ' has therefore occured before he negotiated terms with me as the rightful 'buyer'.

The Official Receiver has been notified of my 'concerns' and as the grant of a charge was a personal agreement between the granter and the grantee do I have a case for challenging the grant as I was not given the Offer of Notice as demanded and having the Rights siezed by the Official Receiver for dispersal?

The Pre-emption clearly states that: 'The Seller shall not make a disaposal during the Pre-emption period unless the procedure in clause 4 has been carried out.'

ie '4.1 the Seller shall give the Offer of Notice in duplicate to the Buyer immediately after a Pre-emption Event occurs'

This was not done, I was not informed of the charge until recently and I believe it was made several years (at least 2) ago.

I await your reply.

Peggy Kendrew

Expert:  Alex J. replied 1 year ago.
Hi,
Thank you.
I will review this and revert to you over the weekend.
Kind regards
AJ
Expert:  Alex J. replied 1 year ago.
Hi,
Thank you kindly for your patience.
I am afraid that because the charge was not registered you have to note the following:
- It is not binding on a trustee in bankruptcy;
- It wont be binding on a bonafide third party purchaser;
- At best you will have an equitable charge and therefore maybe entitled to claim in the estate as a creditor.
Do you know whether the third party purchaser was in anyway connected or colluded with the bankrupt individual? Was the purchaser aware of your charge?
Kind regards
AJ

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