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Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33540
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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In a consent order it states that a charge be placed on a property

Customer Question

In a consent order it states that a charge be placed on a property within 14 days for the agreed % amount
this was not done
does this mean that they have no right to claim
It has been over 7 years
Submitted: 1 year ago.
Category: Law
Expert:  Ash replied 1 year ago.
Hello my name is ***** ***** I will help you.
You mean they did not place a charge?
Customer: replied 1 year ago.
correct they did not take out the charge
Expert:  Ash replied 1 year ago.
Yes its been over 7 years. As such they would not be able to take it out now (the charge) and need permission of the Court if they wished to do so.
Can I clarify anything for you about this today please?
Alex
Customer: replied 1 year ago.
They have applied to the court what are the chances that this will be granted
Expert:  Ash replied 1 year ago.
They need to explain the delay and have a very good reason indeed for it.
Does that clarify?
Alex
Customer: replied 1 year ago.
the house that the charge was to be taken out on was sold in 2012 and my new partner and I have purchased a new property in 2015 using the proceeds from the sale along with savings and proceeds of the sale of my new partners property which seems to have sparked of this chain of advents we are concerned as to what the court will do
Expert:  Ash replied 1 year ago.
What is the exact wording of the consent order?
Customer: replied 1 year ago.
IT IS HEREBY ORDERED BY CONSENT THAT:1 Within 14 days of the date of this Order, the Petitioner shall sign a Charge in the Respondent's favour' such Charge to be registered against***** Beaconsfield, Bucks as security for the payment to the Respondent of 9.23% of the gross value of the property PROVIDED ALWAYS that the such Charge shall not become exercisable until the first to occur of the following events:(i) The youngest child of the family attaining the age of 17 or finishing full time secondary education, whichever is the later
(ii) The Petitioner's death
(iii) The Petitioner,s remarriage
(iv) The Petitioner,s cohabitation for a period of six months or more
(v) A voluntary sale of the propertyor a further Order of the Court provided that, in any event, the said Charge shall not be exercisable without leave of the Court while either child of the family is still a minorThis is word for word
Expert:  Ash replied 1 year ago.
Ok- then if you have sold*****- there is nothing they can do. This is because the charge is at number 32.
It does not say any property, only 32.
So I dont think they can do anything.
Alex
Expert:  Clare replied 1 year ago.
HiI am sorry to disagree with my colleague but I am a Family Law Specialist and have been for 30 yearsI am afraid that you undoubtedly owe your ex 9.23% of the proceeds of the sale of*****plus interest on it.The fact that the Charge was not in place did not absolve you from having to pay the sum due and you should simply have paid it to him or her when the property was sold - and will have to explain why you did not do soPlease ask if you need further detailsClare
Customer: replied 1 year ago.
can you confirm who would have been responsible for taking out the charge on the house
Expert:  Clare replied 1 year ago.
It was up to both parties to deal with it
Customer: replied 1 year ago.
some time after the consent order my ex said he was going to take the charge out on the property it was agreed between us not to do this
Expert:  Clare replied 1 year ago.
What were the terms of that agreement?
Customer: replied 1 year ago.
we didn't have any terms
Expert:  Clare replied 1 year ago.
Then I am afraid you shoudl have paid your ex when the house was sold
Customer: replied 1 year ago.
May you can help clear this up
The consent order reads that a charge had to be in place within 14 days of the consent order being issued this clearly was not done. So please explain why my ex has the right to exercise this now
Expert:  Clare replied 1 year ago.
The Charge was planned to protect your ex and his right to have 9.23 % of the value of the property when it was eventually sold.His right to that percentage was not dependent on the Charge - the Charge was simply to ensure that you did not try and avoid payment.You were BOTH equally bound to put the charge in place - you both agreed not to do so.That agreement did NOT mean that the payment was no longer due
Customer: replied 1 year ago.
The 9.23% is on the gross value I had to pay costs and the mortgage back they are claiming on the sale value
It also states that while I have a minor it can't be implemented
Expert:  Clare replied 1 year ago.
Unfortunately since you are now cohabiting the fact that there is a minor child is not relevant.I have to ask - why did you not simply pay your ex when the property was sold?
Customer: replied 1 year ago.
I'm a low income earner who has struggled to provided for my family
I just wanted to do the best I could I had to sell as I could no longer meet the mortgage payments and the cost of bringing my girls up
I was misrepresented at the time due to affordability.
Expert:  Clare replied 1 year ago.
I seeHow much was the property sold for?
Customer: replied 1 year ago.
£365000
Expert:  Clare replied 1 year ago.
How much was outstanding on the mortgage?Why has your ex only started the proceedings now?
Customer: replied 1 year ago.
about £100000
I have no idea why he has decided to start proceedings now.
Expert:  Clare replied 1 year ago.
Are any of your joint chidlren still under 18?When is the hearing?How much is your current home worth and how much is outstanding on the mortgage?
Customer: replied 1 year ago.
my youngest is 14 just about to become 15
Customer: replied 1 year ago.
the hearing is in march
Expert:  Clare replied 1 year ago.
And the value of your current home?
Customer: replied 1 year ago.
we paid 606k plus costs
Expert:  Clare replied 1 year ago.
I am sorry but there is no way around this - you owe your ex £33,689.50 and it is unlikely that the court will giveyou any extra time to pay given the value of your house.I am sorry - but there is no point in me not being realistic with you about the position that you face
Customer: replied 1 year ago.
We have been able to achieve this due to my new partner how has put his lives savings into this home for me and my family
Expert:  Clare replied 1 year ago.
I am sorry but that does not change anything - the money is owed to your ex and you need to make an offer of payment
Clare, Solicitor
Category: Law
Satisfied Customers: 33540
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
Clare and other Law Specialists are ready to help you
Customer: replied 1 year ago.
They have asked for interest and all costs to be paid by us as well
Interest is being charged at 8% not sure how they have arrived at this figure since interest on savings has been at its lowest for years and we are none the wiser on costs
We made an offer that they did not entertain.
Not sure what to do now.
Expert:  Clare replied 1 year ago.
What proposal have you made?
Customer: replied 1 year ago.
I offered to stop taking child maintenance and pay the balance less the amount they are claiming on the mortgage.
Expert:  Clare replied 1 year ago.
Can you not raise the lump sum against the house?
Customer: replied 1 year ago.
No even though the value against the mortgage debt is high our incomes do not allow us.
Expert:  Clare replied 1 year ago.
That is a major problem I am afraid - the Court may well force a sale in those circumstances.The 8% interest rate is the Statutory rate that can be claimed via the courtsSo far as costs are concerned the figure will be set by the court if no agreement can be reached on a figure
Customer: replied 1 year ago.
If there is any way that we can find the money and pay the original amount before it goes to court what if any thing can they do?
Expert:  Clare replied 1 year ago.
No that would be the ideal solution -
Customer: replied 1 year ago.
If we can only raise part funds and offer further payment at a later date would that help
Expert:  Clare replied 1 year ago.
Provided the capital sum was reasonable yes I think that would help

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