Defending an order for sale

[paulwlton]

As i understand, a borrower may cite the trust of land Act to avoid an order for sale if there are minors involved. My question is - Does the property need to be jointly owned to use the Act.

 

Paul

[manchester1]

Good question paul i cannot answer, lets see if someone else can?

Bump

 

Manc1

[I've got no money]

Good question - I don't know either - can I ask if you are opposing an Order for sale - if you have access to a decent library - it'll be in Nic Madges book "Defending Possession Proceedings" published by LAG

[sequenci]

As i understand, a borrower may cite the trust of land Act to avoid an order for sale if there are minors involved. My question is - Does the property need to be jointly owned to use the Act.

 

Paul

 

Hi Paul,

 

The answer is YES

 

in the High Court case of Wells v Pickering [17th May 2002] it was decided that the considerations of TLATA 1996 to protect the welfare of children do not apply to solely owned property.

 

I hope this helps.

 

Best wishes

[paulwlton]

Hi Paul,

 

The answer is YES

 

in the High Court case of Wells v Pickering [17th May 2002] it was decided that the considerations of TLATA 1996 to protect the welfare of children do not apply to solely owned property.

 

I hope this helps.

 

Best wishes

 

Yes it does help. Thank you.

 

Paul

[sequenci]

A bit more for you sir

 

Defending an Order for Sale

 

Responding to a claim

 

Under CPR 8.30

 

The defendant must

(a) file an acknowledgment of service in the relevant practice form not more than 14 days after service of the claim form; and

(b) serve the acknowledgment of service on the claimant and any other party.

 

(2) The acknowledgment of service must state –

(a) whether the defendant contests the claim; and

(b) if the defendant seeks a different remedy from that set out in the claim form, what that remedy is.

 

Transferring to the debtor’s local court

 

There is not provision for a transfer. An application court be made under CPR Part 30 Rule 30.3(2)(b), which would give the District Judge discretion to agree to transfer the case on the grounds of fairness or convenience to the debtor.

 

It is vital that all preparation for the hearing has been carried out, check the Affidavit to ensure that the correct details of the Charging Order have been recorded together with outstanding balances, the value of the property and all the information required under PD73.4.3 has been provided. Anyone with a legal or equitable interest in the property has a right to be present, to be represented and to be heard. If there are divorce proceedings then ensure that the solicitor involved in the divorce has been referred to interventionist action can be taken.

 

The Hearing

 

At the hearing the court may do one of four things:

 

• Grant the order for sale

• Adjourn the case on terms

• Make a suspended order on terms

• Dismiss the application

 

If the house is jointly owned the court has the duty and the power to declare what the extent of the debtor(s) beneficial interest is under s14 of The Trusts of Land and Appointment of Trustees Act 1996 (TLATA). Under s15 TLATA the court should pay attention to:

 

• Whether there is sufficient debtor equity in the property for the Charge holder to justify the sale

• The intentions of the persons(s) who created the trust. The property is held in trust for all the beneficiaries by the named legal owner(s); and

• The purposes for which the property is held. As an example this could be to provide a home for children as long as they chose to live there or for an elderly relative etc.

• The welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his/her home

• The interests of any secured creditor of any beneficiary

 

CPR 73.10 is outlined here:

 

73.10

 

(1) Subject to the provisions of any enactment, the court may, upon a claim by a person who has obtained a charging order over an interest in property, order the sale of the property to enforce the charging order.

(2) A claim for an order for sale under this rule should be made to the court which made the charging order, unless that court does not have jurisdiction to make an order for sale. (A claim under this rule is a proceeding for the enforcement of a charge, and section 23© of the County Courts Act 1984 provides the extent of the county court's jurisdiction to hear and determine such proceedings.)

(3) The claimant must use the Part 8 procedure.

(4) A copy of the charging order must be filed with the claim form.

(5) The claimant's written evidence must include the information required by the relevant practice direction.

 

Practice Direction 73 4.3

 

4.3 The written evidence in support of a claim under rule 73.10 must –

(1) identify the charging order and the property sought to be sold;

(2) state the amount in respect of which the charge was imposed and the amount due at the date of issue of the claim;

(3) verify, so far as known, the debtor's title to the property charged;

(4) state, so far as the claimant is able to identify–

(a) the names and addresses of any other creditors who have a prior charge or other security over the property; and

(b) the amount owed to each such creditor; and

 

(5) give an estimate of the price which would be obtained on sale of the property.

(6) if the claim relates to land, give details of every person who to the best of the claimant's knowledge is in possession of the property; and

(7) if the claim relates to residential property –

(a) state whether –

(i) a land charge of Class F; or

(ii) a notice under section 31(10) of the Family Law Act 1996, or under any provision of an Act which preceded that section,

 

has been registered; and

 

(b) if so, state –

(i) on whose behalf the land charge or notice has been registered; and

(ii) that the claimant will serve notice of the claim on that person.

 

Practice Direction 73 4.4

 

4.4 The claimant must take all reasonable steps to obtain the information required by paragraph 4.3(4) before issuing the claim.

 

The Trusts of Land and Appointment of Trustees Act 1996 (TLATA)

 

TLATA only applies to jointly owned property (Wells v Pickering HC, 17th May 2002). It was determined that the considerations of s14 & s15 TLATA to protect the welfare of children do not apply to solely owned property.

 

14. Applications for order.

(1) Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the court for an order under this section.

(2) On an application for an order under this section the court may make any such order:

(a) relating to the exercise by the trustees of any of their functions (including an order relieving them of any obligation to obtain the consent of, or to consult, any person in connection with the exercise of any of their functions), or

(b) declaring the nature or extent of a person’s interest in property subject to the trust, as the court thinks fit.

 

15. Matters relevant in determining applications.

(1) The matters to which the court is to have regard in determining an application for an order under section 14 include:

(a) the intentions of the person or persons (if any) who created the trust,

(b) the purposes for which the property subject to the trust is held,

© the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home, and

(d) the interests of any secured creditor of any beneficiary.

(2) In the case of an application relating to the exercise in relation to any land of the powers conferred on the trustees by section 13, the matters to which the court is to have regard also include the circumstances and wishes of each of the beneficiaries who is (or apart from any previous exercise by the trustees of those powers would be) entitled to occupy the land under section 12.

(3) In the case of any other application, other than one relating to the exercise of the power mentioned in section 6(2), the matters to which the court is to have regard also include the circumstances and wishes of any beneficiaries of full age and entitled to an interest in possession in property subject to the trust or (in case of dispute) of the majority (according to the value of their combined interests).

[luckydog100]

If an order for sale is granted and a sale date set can the people who won the order for sale clear the property of the owners personal possessions before the sale?

[Jules55]

A bit more for you sir

 

Defending an Order for Sale

 

Responding to a claim

 

Under CPR 8.30

 

The defendant must

(a) file an acknowledgment of service in the relevant practice form not more than 14 days after service of the claim form; and

(b) serve the acknowledgment of service on the claimant and any other party.

 

(2) The acknowledgment of service must state –

(a) whether the defendant contests the claim; and

(b) if the defendant seeks a different remedy from that set out in the claim form, what that remedy is.

 

Transferring to the debtor’s local court

 

There is not provision for a transfer. An application court be made under CPR Part 30 Rule 30.3(2)(b), which would give the District Judge discretion to agree to transfer the case on the grounds of fairness or convenience to the debtor.

 

It is vital that all preparation for the hearing has been carried out, check the Affidavit to ensure that the correct details of the Charging Order have been recorded together with outstanding balances, the value of the property and all the information required under PD73.4.3 has been provided. Anyone with a legal or equitable interest in the property has a right to be present, to be represented and to be heard. If there are divorce proceedings then ensure that the solicitor involved in the divorce has been referred to interventionist action can be taken.

 

The Hearing

 

At the hearing the court may do one of four things:

 

• Grant the order for sale

• Adjourn the case on terms

• Make a suspended order on terms

• Dismiss the application

 

If the house is jointly owned the court has the duty and the power to declare what the extent of the debtor(s) beneficial interest is under s14 of The Trusts of Land and Appointment of Trustees Act 1996 (TLATA). Under s15 TLATA the court should pay attention to:

 

• Whether there is sufficient debtor equity in the property for the Charge holder to justify the sale

• The intentions of the persons(s) who created the trust. The property is held in trust for all the beneficiaries by the named legal owner(s); and

• The purposes for which the property is held. As an example this could be to provide a home for children as long as they chose to live there or for an elderly relative etc.

• The welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his/her home

• The interests of any secured creditor of any beneficiary

 

CPR 73.10 is outlined here:

 

73.10

 

(1) Subject to the provisions of any enactment, the court may, upon a claim by a person who has obtained a charging order over an interest in property, order the sale of the property to enforce the charging order.

(2) A claim for an order for sale under this rule should be made to the court which made the charging order, unless that court does not have jurisdiction to make an order for sale. (A claim under this rule is a proceeding for the enforcement of a charge, and section 23© of the County Courts Act 1984 provides the extent of the county court's jurisdiction to hear and determine such proceedings.)

(3) The claimant must use the Part 8 procedure.

(4) A copy of the charging order must be filed with the claim form.

(5) The claimant's written evidence must include the information required by the relevant practice direction.

 

Practice Direction 73 4.3

 

4.3 The written evidence in support of a claim under rule 73.10 must –

(1) identify the charging order and the property sought to be sold;

(2) state the amount in respect of which the charge was imposed and the amount due at the date of issue of the claim;

(3) verify, so far as known, the debtor's title to the property charged;

(4) state, so far as the claimant is able to identify–

(a) the names and addresses of any other creditors who have a prior charge or other security over the property; and

(b) the amount owed to each such creditor; and

 

(5) give an estimate of the price which would be obtained on sale of the property.

(6) if the claim relates to land, give details of every person who to the best of the claimant's knowledge is in possession of the property; and

(7) if the claim relates to residential property –

(a) state whether –

(i) a land charge of Class F; or

(ii) a notice under section 31(10) of the Family Law Act 1996, or under any provision of an Act which preceded that section,

 

has been registered; and

 

(b) if so, state –

(i) on whose behalf the land charge or notice has been registered; and

(ii) that the claimant will serve notice of the claim on that person.

 

Practice Direction 73 4.4

 

4.4 The claimant must take all reasonable steps to obtain the information required by paragraph 4.3(4) before issuing the claim.

 

The Trusts of Land and Appointment of Trustees Act 1996 (TLATA)

 

TLATA only applies to jointly owned property (Wells v Pickering HC, 17th May 2002). It was determined that the considerations of s14 & s15 TLATA to protect the welfare of children do not apply to solely owned property.

 

14. Applications for order.

(1) Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the court for an order under this section.

(2) On an application for an order under this section the court may make any such order:

(a) relating to the exercise by the trustees of any of their functions (including an order relieving them of any obligation to obtain the consent of, or to consult, any person in connection with the exercise of any of their functions), or

(b) declaring the nature or extent of a person’s interest in property subject to the trust, as the court thinks fit.

 

15. Matters relevant in determining applications.

(1) The matters to which the court is to have regard in determining an application for an order under section 14 include:

(a) the intentions of the person or persons (if any) who created the trust,

(b) the purposes for which the property subject to the trust is held,

© the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home, and

(d) the interests of any secured creditor of any beneficiary.

(2) In the case of an application relating to the exercise in relation to any land of the powers conferred on the trustees by section 13, the matters to which the court is to have regard also include the circumstances and wishes of each of the beneficiaries who is (or apart from any previous exercise by the trustees of those powers would be) entitled to occupy the land under section 12.

(3) In the case of any other application, other than one relating to the exercise of the power mentioned in section 6(2), the matters to which the court is to have regard also include the circumstances and wishes of any beneficiaries of full age and entitled to an interest in possession in property subject to the trust or (in case of dispute) of the majority (according to the value of their combined interests).

 

Hi, Do you happen to know whether a claimant would have to provide a copy of their 2nd charge either with their claim or at the hearing? If they don't could the judge dismiss the case?

[Barclaysbunny]

if it helps, I used a solicitors who specialise in this - given the dire consequences, I didn't want to do it myself. ** Post edited, Please read the FAQ's **- this guy used to do OfS actions for a the CSA- he does consumer credit Order for Sale and child support agency ones - give him a ring - he stopped mine being sold

[Ganymede]

If an order for sale is granted and a sale date set can the people who won the order for sale clear the property of the owners personal possessions before the sale?

 

If the OFS is granted then the Claimant will need to apply for another hearing, a possession hearing, as being granted an OFS doesn't automatically give the Claimant possession of the property.

 

 

 

Hi, Do you happen to know whether a claimant would have to provide a copy of their 2nd charge either with their claim or at the hearing? If they don't could the judge dismiss the case?

 

I'm not sure what you mean by this? Why would the Claimant being going for an OFS if they had a second charge? Do you mean does the Claimant have to provide copies of all the other charges on the property?

[Barclaysbunny]

Hi

 

I'm afraid Ganymede is wrong, sorry. A mortgage repo requires a second hearing, but an Order for Sale Order contains the date of possession. That date is then used to apply for a bailiff warrant, which will be one month or more after the possession date - see the practice direction which contains the draft order. The Order also contains the minimum price that the property can be sold at. Thsi is, basically, what an Order will contain:

1. debt + interest and date that it must be paid by

2. If payment is not received, the date of possession

3. The minimum sale price, and a para saying that the Claimant can take sale costs

4. The split of money (an OfS Order is different for jointly owned and owned by one person).

 

This is why people need a solicitor before the hearing, at the hearing and after the hearing, because even if you lose there are ways of making the order better, such as asking for more time to pay, more to time for possession, and ensuring that the sale price is as near to 100% of the value as possible (many ask for it to be 75% or less of the value, and then wack it staright on to the market at the lowest figure for a fast sale).

 

The Defendant must clear the property. Anything that is left may be taken (under a notice) within 28 days, anything left will be put in a skip or sold.

 

It is theoretically possible to ask the Court to dismiss the claim without original copies of the charging order - and is something you should ask your solicitor to do. However, the Court will usually accept a copy of it. If they don't have it, they can apply to the court for a copy. As a charging order app and OfS app must be made at the home Court to the defendant, it is usually a case of going to the Court reception and asking for a copy of it.

 

Make surwe you have read the civil procedure rules - Part 73 (http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part73.htm) and its practice direction.

 

removed please read the forum rules

Edited August 18, 2010 by IdaInFife
removed advertising

[Barclaysbunny]

For a copy of an Order for Sale - look at page 6 of the Practice Direction:

http://www.justice.gov.uk/civil/procrules_fin/pdf/practice_directions/pd_part73.pdf

 

That will show you the wording that they must have, and as you can see, it gives the date of possesison - ORDER FOR SALE IS DIFFERENT TO MORTGAGE REPO

[Ganymede]

Hi

 

I'm afraid Ganymede is wrong, sorry. A mortgage repo requires a second hearing, but an Order for Sale Order contains the date of possession. That date is then used to apply for a bailiff warrant, which will be one month or more after the possession date - see the practice direction which contains the draft order. The Order also contains the minimum price that the property can be sold at. Thsi is, basically, what an Order will contain:

1. debt + interest and date that it must be paid by

2. If payment is not received, the date of possession

3. The minimum sale price, and a para saying that the Claimant can take sale costs

4. The split of money (an OfS Order is different for jointly owned and owned by one person).

 

This is why people need a solicitor before the hearing, at the hearing and after the hearing, because even if you lose there are ways of making the order better, such as asking for more time to pay, more to time for possession, and ensuring that the sale price is as near to 100% of the value as possible (many ask for it to be 75% or less of the value, and then wack it staright on to the market at the lowest figure for a fast sale).

 

The Defendant must clear the property. Anything that is left may be taken (under a notice) within 28 days, anything left will be put in a skip or sold.

 

It is theoretically possible to ask the Court to dismiss the claim without original copies of the charging order - and is something you should ask your solicitor to do. However, the Court will usually accept a copy of it. If they don't have it, they can apply to the court for a copy. As a charging order app and OfS app must be made at the home Court to the defendant, it is usually a case of going to the Court reception and asking for a copy of it.

 

Make surwe you have read the civil procedure rules - Part 73 (http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part73.htm) and its practice direction.

 

removed as per original post

 

 

 

 

 

Yes the draft order may have a date and price on it, but what if that possession date is not complied with or the Defendant does not pay the agreed rate? A new application will then have to be made to actually physically take possession of the property.

Edited August 18, 2010 by IdaInFife
as stated

[d5xs]

if it helps, I used a solicitors who specialise in this - given the dire consequences, I didn't want to do it myself. ** Post edited, Please read the FAQ's **- this guy used to do OfS actions for a the CSA- he does consumer credit Order for Sale and child support agency ones - give him a ring - he stopped mine being sold

 

Hi. Also faced with an Order for Sale. How can I get this particular solicitors details?

 

Thanks

[luckydog100]

Thankyou Barclaysbunny could you expand on the bit - Defendant must clear the property and anything left subject to notice will be put in a skip - I was not aware of OFS as ABROAD possession order was for 30th May, I found out about date of auction for sale of property was 22nd July on 23rd June and I paid the amount of the order on 1st july and property had been cleared by them on 29th June. OFs did of course not happen but I lost my possessions. (complete house)