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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25441
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Im looking for some advice on removing a very old caution

Resolved Question:

I'm looking for some advice on removing a very old caution on our property by paying the claimed amount.

A quick summary:
Back in 1990 our business failed in the recession that was occurring at that time. We paid off everyone except our business landlord, and in December 1996 we were hit with a Judgement for Plaintiff in the amount of £4492 "for debt and interest to date of judgement", plus £50 costs, making a total of £4542.
Previously, in 1992, the landlord placed a Caution on our property.

We now are in the process of changing our mortgage, and the new lender won't complete the deal until the caution is removed. We applied via Land Registry for it to be removed, but the cautioner has objected (first time we've heard anything of him since 1996).

I'd like to get the matter settled quickly so that we can go ahead with the mortgage - which we're only taking out 'cos we've been unsuccessfully trying to sell our house for the past year and the current mortgage is about to expire.
I can take out a sensible rate bank loan for the money and pay off the cautioner, but....

1)The "Name and address for payment" on the Judgement is a solicitors who tell us the cautioner has not been a client for over 15 years, and they hold no paperwork on the case. Are they still the people I should be dealing with, or should I go straight to the cautioner?
2) As the debt is unsecured and is under £5000, can the creditor claim any interest? He'll certainly try!
3) Should I deal with this myself or employ a solicitor to handle it?

I would appreciate any advice you can give.
Thanks
Steve
Submitted: 3 years ago.
Category: Property 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 that you made a formal application on form CCD to HM Land Registry to remove the caution and the cautioner made a formal objection to the registry please?

Customer:

Yes

Joshua :

Thanks. Has he provided the registrar with a copy of the judgment? Do you now have his name and addres besides his solicitors?

Customer:

Hi Joshua (apologies - didn't say 'hi' in my first answer)

Customer:

He has not provided Land Registry with any documentation other than a letter, so yes, we now have his address

Joshua :

Has he given a figure?

Customer:

No, just that we have not paid the judgement and that he objects to the removal of the caution

Joshua :

Thanks. Has the registrar asked for your comments prior to making a decision or has the registrar made a decision that the caution must remain already?

Customer:

The registrar has decided the caution should remain on the registry entry

Joshua :

Thanks. In view of the judgement that is not unexpected. If you have his name and address then you will wish to contact him directly pragmatically as his solicitors appear to no longer be instructed. He must supply a statement of the amount he claims is owed within a reasonable time in response to your letter although in practice you can work out the amount owed. He is entitled to claim interest of 8% per annum on the amount owed under the judgement. In terms of how you may wish to proceed:

Joshua :

My I ask if you are in a position financially to pay the judgement at this point or not?

Customer:

Hi Joshua, that depends on the final amount. The basic judgement, yes. Judgement +8% pa possibly not

Joshua :

OK. There are a couple of approaches then.

Joshua :

You could consider writing to the judgement creditor enclosing a cheque in the sum of the judgement and advise hat you are enclosing a cheque in full and final settlement of the judgement and should the cheque not be accepted in full and final settlement of the same that he should return it within 7 days. If you use this wording then if he banks the cheque he cannot claim any more money under the judgement. If he does not bank it or returns it demanding interest (as is his right) then if you cannot afford to pay such interest you will need to consider an alternative approach as follows:

Joshua :

You can relatively easily calculate the interest due on the debt by multiplying the debt by 8% and dividing that sum by 365 to work out the daily rate and then multiplying that daily rate by the number of days the judgement has been outstanding for. It is likely to be a significant sum unfortunately in the order of £6K at a rough calculation

Joshua :

If your remortgage will allow you to repay the judgement plus interest then you can ask your solicitor to correspond with your judgement creditor instead whereby he gives him a solicitors undertaking to pay him the agreed figure on completion of your remortgage in return for the judgement creditor giving consent to removal of the caution which the solicitor in turn agrees to hold to his order pending the above payment being made. This is only possible if the remortgage allows you to repay the amount outstanding.

Joshua :

If it does not then in practice he is likely to be able to effectively prevent dealings with the property until you can repay it. You could dispute the registrars decision and go to a tribunal but because the caution underwrites a judgement debt by a court such an appeal is unlikely to be successful

Customer:

Thanks Joshua, so looks like it's back to the mortgage company and their solicitor to try increase the mortgage by the necessary amount. I did read on Consumer Action Group webpages that interest couldn't be applied on Judgements under £5000 unless that was in the original judgement. Presumably that is incorrect

Joshua :

Interest is only possible if he has claimed interest under s69 County Courts Act in his claim and it was granted. This is common place - if he has forgotten to make a claim for interest and it is not mentioned in the judgement then interest cannot be claimed. If you think he forgot check the terms of the judgement to confirm. If not you should be away and clear in this respect

Joshua :

Consider a letter in the above terms - full and final settlement wording as above. This can frequently be effective for swfitly resolving such claims.

Joshua :

Is there anything above I can clarify for you any further

Joshua :

I must apologise - I am about to log off for a couple of hours. 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 though please reply back to me though. I will with your permission be very happy to revert to you later this evening.

Customer:

Thank you. The Judgement we have mentions nothing about further interest, so I'll go for the letter as you suggest. Thanks very much for your assistance

Joshua and other Property Law Specialists are ready to help you

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