Charging order in deceased joint owners name HELP!

[Mitz78]

Am I in the right place to ask for help with this historic charging order I've just discovered, which is from from a deceased relative with whom I had a joint mortgage with, 

I will provide more information once I know I'm in the right place as it's not easy to explain in writing so the post may be quite lengthy,

I thank anyone in advance who helps or points me in the  right direction, 

thank you.  

[mantis shrimp]

Yes, we can look at that. Please post more info.

 

In particular: 

 

• Date of death of co-owner.
• If you know - whether the joint ownership was as 'joint tenants' or 'tenants in common'. (If you do not know, you can upload an anonymised version of the Land Registry title entries: I would be looking at Part B - the Proprietorship Register).
• The date of the charging order.

Edited February 3, 2022 by mantis shrimp

[AndyOrch]

Welcome to the Forum.

 

I have moved your Topic to General Legal Issues forum.

 

Andy

[Mitz78]

Mantis shrimp - in answer to your questions - 

Date of death of co-owner - 14/02/19

 

If you know - whether the joint ownership was as 'joint tenants' or 'tenants in common'. -

it was joint tenants however I understand that it became tenants in common because of the charging order or am I mistaken?  
 

The date of the charging order - 
08.09.2008

 

(If you do not know, you can upload an anonymised version of the Land Registry title entries: I would be looking at Part B - the Proprietorship Register) - 

I have copied the entry wording here - 

(08.09.2008) RESTRICTION: 

No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to Cabot Financial (UK) Limited at PO Box 250, West Malling, Kent ME19 4LT being the person with the benefit of an interim charging order on the beneficial interest of 
XXXXXXXXXXXX made by the Bridgend County Court on  11 August 2008 (Claim Number XXXXXXXX).

 

More information -  regarding a newly discovered charging order on my house from the joint owner who sadly passed away in Feb 2019 .

 

The history -

My grandfather did a transfer of equity on his house jointly owned (mortgaged) with his son and my uncle to myself to avoid having to sell the house and have his share of the equity pay for his care following the need for nursing home care following a stroke and severe decline in health. 

 

My self and my uncle re mortgaged in 2006 following some really bad advice from an IFA to change from a repayment mortgage to an interest only mortgage with no repayment vehicle,  bad move I know but I was young and trusted the advice.
 

Fast forward to 2019 my uncle suddenly and unexpectedly passes away, he did not have a will and did not have any assets to speak of as he had ill health and had been on disability benefits for many years so there was no savings, insurance, pensions ect 

 

I called the mortgage company and asked them what happens with the mortgage and house and they advised that as it was a joint mortgage the property would automatically transfer directly to me and all I had to do was send them his death certificate as probate wouldn't be necessary so I did and that was it and thought that covered everything, 

 

My sister was his next of kin as he had never married and had no children, he was estranged from his siblings including my mother as are my sister and I, so my sister dealt with all his other financial and personal dealings which were very straightforward with nothing formal  required as he had just his social security benefits and literally just a few pounds in his bank account so they did not require anything other than his death certificate to close the account. 
 

Fast forward to Dec 2021 when myself and my partner are discussing the mortgage situation as its now due to end in Oct '26 and unfortunately with it being interest only I have no repayment vehicle in place so I have to find a new mortgage in time before this one ends.

 

I downloaded my deeds from the land registry to ensure the details were correct and was shocked to discover that my uncles name is still on there and also there is a charging order on there from 2008, I had no idea about this and discovered that I should have removed my uncles name myself as the mortgage company don't do that but they didn't tell me that when I called with the death notification. 
 

I now also discover that I can't take his name off while the charging order is still there, what do I do? 
 

Will the land registry remove the charge and his name if the charging order is paid or witten off without probate or do I now have to get probate to do that? 

Will I have to go to court and get the order removed?

 

Will I be in trouble as it's been 3 years since he died? 
 

Can I contact the creditor with the charging order and explain he has passed away and the house is now in my name only or at least should be and ask if they will write the debt off and remove or not pursue the charge and write to me to confirm that? 

Do I have to go to court even if they do this or not? 

 

Or will they make me pay it or try and force the sale of the house to get the money? 

With the mortgage being interest only and the house mortgaged almost to the market value there probably wouldn't be any equity to pay them anyway if they did try and force a sale. 

 

What do I need to do to keep my home,  how do I do it and in what order?

 

I am so sorry for the long post and so many questions and probably too much useless information but I'm really worried about this,  I really didn't think I had to do anything with the house or the land registry after speaking with my mortgage company so this really has come as a shock,  especially as no other legal processes where required as my uncle had no other assets or money and the bank and DWP closed everything with just his death certificate, 

 

If you need any more information before advising me please ask , I've probably given more than what's needed but I don't know, I look forward to speaking with you.    

Any guidance at all is greatly appreciated and if I do need to submit certain forms / paperwork then the names and numbers of the forms would be great as I've never had to do anything like this before. 
 

Please help, thanks in advance. 
 

[dx100uk]

thats a restriction k .

forget it

 

2 hours ago, Mitz78 said:

I understand that it became tenants in common because of the charging order or am I mistaken?  

you are wrong changes nothing.

 

 

[Mitz78]

Sorry I don't understand,  what do you mean? 

 

 

This is the ownership section b which I think means it was a joint tenancy with the detailed restrictions (which I thought became a tenancy in common because of the restriction imposed by Cabot against my uncle). 

 
B: Proprietorship Register / Cofrestr
Perchnogaeth
This register specifies the class of title and
identifies the owner. It contains any entries that
affect the right of disposal.
Mae'r gofrestr hon yn nodi'r math o deitl ac yn enwi'r
perchennog. Mae'n cynnwys unrhyw gofnodion sy'n
effeithio ar yr hawl i waredu.
Title absolute/Teitl llwyr

(05.06.2006) PROPRIETOR: [edited] of
[address]

(27.08.2002) The price stated to have been paid on 18 July 2002 was
XXXXXXXX.

(17.01.2007) RESTRICTION: Except under an order of the registrar no
disposition by the proprietor of the land is to be registered or noted
without the consent of the proprietor of the Charge dated 8 November
2006 in favour of Preferred Mortgages Limited referred to in the Charges Register..

 

(08.09.2008) RESTRICTION: 

No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to Cabot Financial (UK) Limited at PO Box 250, West Malling, Kent ME19 4LT being the person with the benefit of an interim charging order on the beneficial interest of 
[edited] made by the Bridgend County Court on  11 August 2008 (Claim Number XXXXXXXX).

[mantis shrimp]

Interesting situation. 

 

1. You may be shocked that the title is still showing as being in joint names, but if noone has told the Land Registry of your uncle's death, how can it be expected to change anything? Ask the LR to change the title - send a certified copy of the death certificate. 

 

2. Do you know how much is owed? You appear to suggest it can be paid? 

 

3. I had been hoping to see that your uncle had passed away before the charging order, but that is clearly not the case. While I would be interested to see what dx means by "forget it", my opinion is that you will need some careful footwork to deal with this and clear the title. To do this you should consult a solicitor. 

Edited February 4, 2022 by mantis shrimp
spelling

[Mitz78]

Thank you for your response to answer as clearly ask can,  

1. I  clearly misunderstood my mortgage company when they advised me upon me that I had done all I needed to with regards to the house,  I was obviously wrong under the assumption that they would advise the land registry.

2. I don't know how much is owed under the charging order as I have only just found out about it and can only see what I copied off the title register. I am in a position to be able to pay the order as long as it is not in the  thousands of pounds.

3. What do you mean by "careful footwork" am I likely to be in trouble for this as I really did believe that I had done all I needed to do.

With regards to the land registry will they remove his name from the title whilst the charging order remains or will I have to try and deal with that first?

Am I better off getting some legal advice before I do anything?

Was hoping at best that I could hopefully pay off the debt and get the order removed and then remove his name but it looks like that is going to be more difficult than I thought,  also am I going to need probate to do this?

Sorry I'm just so confused and worried and I don't want to make the wrong move, also worried that I have unintentionally broken the law

[dx100uk]

Property is/was jointly owned 

Debt was not. It was solely his in his name

The Cabot entry is only a restriction k. You do not owe it .

 

[mantis shrimp]

careful footwork involves taking well thought out steps. 

I am thinking of how to obtain a clear title, i.e. free of entries relating to this charging order. 

[Mitz78]

Will the land registry remove his name from the title deeds with the restriction k still in place? 

as I am looking to remortgage with a new lender I understand that the restriction has to be removed/paid in order to avoid any issues with the remortgage , I am just unsure how to do this when it is in the deceased joint owners name.

Trying to avoid legal fees if possible and avoid probate in not required anybody have some clear advice for me or do I have no choice but to see a  solicitor

 

I really do appreciate everyone's help so far, thank you Mantis shrimp and dx100uk

[mantis shrimp]

The Land Registry ought to register you as sole owner, given that the other 'joint tenant' is deceased.

 

I have been puzzling over removing the restriction. It may be that you can leave it there, but you may be putting off a problem for later - or for your heirs.

[Mitz78]

Thank you,  I am going to send the completed form to have his name removed to the land registry and see what happens,  will leaving the restriction there and doing nothing impact on my attempt to remortgage in a couple of years? 

[dx100uk]

Shouldn't hurt you at all 

 

Dx

[mantis shrimp]

I have given this some further thought. It may be possible to apply to the LR to remove the restriction, on the grounds that your uncle ceased to have a beneficial interest on his death, when his beneficial interest passed to you by right of survivorship and so there ceased to be an interest to which a charging order could attach. I would want to research that further, but will not have time over the next few days.

 

Your uncle's estate, such as it is, has the legal liability for his debts.  But the interest in the house does not form part of his estate.

[Mitz78]

That sounds great, thank you Mantis shrimp,  I will let you know what happens when I send the form off and I get a response from the land registry so may be a couple of weeks before I know more, but will try and investigate more about what you said as well regarding beneficial interest ect see what we discover, thanks again and speak soon.

[dx100uk]

A scamming DCA got a Backdoor ccj resulting in a back door co which equalled a restriction k .and I bet it was not Cabot, they've just purchased the debt. 

 

Very very few ever need paying .

Just read and understand those threads I pointed

[Mitz78]

Thank you dx100uk I will re read those threads and try and understand how these restrictions work,  my head is fried with all this information at the moment,  so I'm going to get his name removed in the first instance and deal with the restriction after that,  will keep you posted

[dx100uk]

the restriction is not in your name

it's a jointly owned property

i will doubt LR will remove him, they might and if they do the rest k will vanish dead gone! wasnt ever owed in the 1st place

 

[BazzaS]

land registry can’t help with that.

The Land Registry Proprietorship Register holds the details of the “legal title”, which is always (well, since Law of Property Act 1925 s.34 (1) and (2) ) held as a joint tenancy (listing up to the first 4 joint tenants)

 

Law of Property Act 1925

WWW.LEGISLATION.GOV.UK

---

An Act to consolidate the enactments relating to conveyancing and the law of property in England and Wales.

 

it is the equitable interest that can be held as either joint tenants or tenants in common, and details of that aren’t in the proprietorship register.

If there are two joint tenants of the legal title, and the equitable interest is a tenancy in common, by those two people, then if one of the joint tenants dies the survivor holds all of the legal title, but holds it “on trust” with an obligation to the recipient of the deceased’s equitable interest.

 

by all means notify the LR of the death.

They’ll remove the deceased from the legal title, but don’t expect the restriction k (held against the legal title) to disappear.

[mantis shrimp]

If on registration the current owners have indicated that they are tenants in common (and good conveyancers should have done if this was the case) the proprietorship register would contain a provision that a sale or other disposition of the property may not proceed on the signature of only one of the registered proprietors. 

 

I was looking to see whether there is such an entry. 

Edited February 5, 2022 by mantis shrimp
minor typo

[Mitz78]

I can confirm that there is no such entry that would relate to the property being tenants in common and the mortgage and house was a joint tenancy and is now just a sole proprietor ,

 

I have confirmed this with my mortgage company and the land registry who are sending the form to remove his name from the title deeds 

 

the land registry did advise that although his name would be removed as joint proprietor the restriction k would remain until I apply to have it removed or Cabot withdraw the restriction,

 

I will update when this progresses, thank you again for for your help

Edited February 5, 2022 by dx100uk
added A few blank lines only..dx

[mantis shrimp]

I have already suggested applying at the same time to remove the restriction. 

[Mitz78]

Of course, the land registry is also sending me the form to do that also, I belive its form RX3 or RX4 I forget but they are sending it to me, I didn't think to do it the same time, I was going to wait until I got confirmation of the name removal using form DJP and then apply for the restriction k to be removed using your reasoning and based on your advice, would it be beneficial to do this at the same time? 

[mantis shrimp]

I can see (a) no harm in it and (b) no compelling reason to do them sequentially.