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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8444
Experience:  I have been practising for 30 years.
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I am trying to sell my cottage but there is a second charge

Resolved Question:

I am trying to sell my cottage but there is a second charge on my title deeds (after my mortgage company charge). This charge is historical and all parties involved are now deceased. The original charge was bought in 1978 and all we can uncover is that it is an equitable charge..but no info for how much. We have got a letter from the instigator of the charges daughter who tells us that she is the sole living relative and states she has no interest in my property. We also have indemnity insurance against the charge. I have had 2 potential buyers pull out over this issue and are now desperate! The land registry are saying that the charges daughter needs to obtain probate to get this charge removed, she didn't do this when her father died and I obviously assume she wouldn't want to has been 7.5 years since her father died. My property was bought and done up to sell on and I bought it. I have very little recollection of my then solicitor bringing up this issue other than to say there was indemnity insurance and I also obviously obtained a mortgage so I was led to believe no problems!
I'm lead to belive that my only course of action to get this charge removed is to apply for a vacating court order which I'm told could take 6 months and cost £10k with no guarantees it would work. Is there no other avenue?! Your help would be much appreciated as I desperately need to move on...
Manyou thanks in anticipation
A Bell
Submitted: 3 months ago.
Category: Law
Expert:  F E Smith replied 3 months ago.

Applying to court for an order to remove the charge on the basis that no one has any interest in it is NOT likely to cost anything like £10,000 if whoever has the benefit of the charge (the beneficiaries of whoever had the original charge) does not contest the application. It’s likely to cost not much more than the court fee and the solicitors fees. That’s likely to be perhaps £2000 or thereabouts.

Sometimes, in circumstances like this, the land Registry will take a Statutory Declaration from the beneficiary of the estate of the deceased, stating that they are the only beneficiary and that the estate of the deceased was such that probate was not required and they then declare that they have no interest in the property.

Have you asked the land registry whether they would deal with it that way?

There are only the 2 ways of getting it removed, court or land Registry and I would be amazed if they would not take a statutory declaration. I assume that you have tried to deal with this on the telephone and that your solicitor has put this in writing to them.

Can I clarify anything for you?

Please don’t forget to rate the service positive. It is an important part of the process by which experts get paid.

Best wishes.


Customer: replied 3 months ago.
Thankyou for your fast response, I will take this up with my solicitor and ask them to ask the land registry as such.
Wish me luck!
A Bell
Expert:  F E Smith replied 3 months ago.

I am pleased to have helped.

To be honest, I am surprised that your solicitor has not suggested this already. It’s important that he says that there was no need to apply for grant of probate because the estate of the deceased was relatively small.

Please don’t forget to use the rating service so that I get paid. It doesn’t cost you anything but helps me greatly. Thank you. Best wishes

F E Smith, Advocate
Category: Law
Satisfied Customers: 8444
Experience: I have been practising for 30 years.
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