What does a 'Notice of an application to register a restriction against the land' mean and what can I do?

[freeish]

I would really appreciate any help with this. I have just returned home to open a letter from the Land Registry as above. I am aware that my ex partner has debts. He has not lived here for five years but is still on the mortgage as I do not earn enough to have it transferred into my sole name. Does anyone know what this letter means? I have tried contacting Land Registry but no reply.

It says they have received an application to enter a restriction on the register of my property by a solicitors. I don't know what to do. I have no money and cannot afford legal advice.

I suspect one of your ex-husband's creditors is applying to put a charging order on the property so that, when it is sold, part of the money can be used to repay the debt.

Since he is still on the mortgage I am not sure there is much you can do, but you really do need to seek some proper legal advice, this isn't really my area.

I'm very vague on this but does this mean that a company is trying to register a charge against the property as security for a loan? They would need permission from the owner of the property to do this. Is you ex registered as and owner with the land registry and how do you hold the property - jointly or as tenants in common.

Can you type out the exact wording, as there are different sorts of restrictions.

Thank you. I'm not sure if we are joint tenants or tenants in common. I know that if one of us dies the other one gets their 'half'. The wording of the letter is;

'We have received an application to enter a restriction in the register on your property. A restriction will regulate the making of an entry in the register of your property. Land registry will not be able to register a transaction if it is of a type specified in the restriction until a prior condition is satisfied, as also set out in the restriction.

The applicant claims to have the benefit of a charging order made by a court against your interest in this property and is entitled to protect that order by an entry in the title register of the affected property. If the applicant has sent us a copy of the order we can supply you with a copy on request.

The applicant has therefore applied for the following restriction to be entered in the register of your above title:
RESTRICTION: No disposition of the registered estate, other than a disposition by the proprietor of any registered charge registered before the entry of this restriction, is to be registered without a certificate signed by the applicant for registration or their conveyancer...
being the person with the benefit of an interim charging order on the beneficial interest of (ex-partners name) made by the Kings Lynn County Court on 13th June 2014.'

It then advises me that i can give consent or object to the application but that I will need legal advice etc.

Right, ok, so one of your ex husband's creditors has registered a charging order. A charging order is essentially a second mortgage on the property.

This means that they can apply to court for an order for sale in order to recover the debt, unfortunately.

I suggest that you contact the creditor to find out how much is owing, and of course your ex to see if there is any chance of him clearing the debt.

A lot of the time, the creditor doesn't apply for an order for sale straight away, they should try to negotiate payments with your ex, and the charging order is just there as a belt and braces.

The way you describe your holding of the property, you are joint tenants. You should probably sever the joint tenancy now, as apart from anything else, if you die, your share will pass to your ex husband which obviously you wouldn't want.

You can sever the joint tenancy very easily; either you can both sign a form SEV and send it to the Land Registry, or if your ex won't agree, you can serve a Notice of Severance on him and then notify the LR. It's slightly more complicated to do it the latter way, but not hugely so,

You may also slow things down by objecting to the charging order but tbh I wouldn't hold out too much hope of that being successful if the creditors are actually owed what they say.

Thank you mumblechum1. Unfortunately there is no chance of my ex paying the debt - he is far too busy taking crack and heroin and employing prostitutes. I will obviously have to find a way to get legal advice but me and my child have around £30 a week to live off. When I looked into legal aid previously I didn't qualify as I have an interest in a property. I have sacrificed everything to keep my home for the past five years. It sounds like the creditors can force a sale? Can they really make a mother and child homeless? Do you know if my half of the equity will be safe if we sever the tenancy? Can you sever the tenancy without a solicitor?

Hi, yes, you can sever the tenancy, using the forms referred to in my last email. If you get stuck post again

His half can be taken by creditors but not your half. I suspect they can make you homeless and you keep your half of the equity. It may be cheaper to sell the house now yourself rather than a forced sale at auction.
You need to find out what is owed by him first and how much equity after the mortgage you each have in the house and do what is said above - sever that joint tenancy so you hold as tenants in common.

If you could get legal advice it might be better as in some cases you might have financial claims on an ex partner even if not married to him and he might lawfully be able to make over more of the house than your 50% to you although not if the plan is to deceive creditors and it may be a bit too late to do that now.

Thanks for the responses. I went to the CAB today. It seems that it's too late to sever the joint tenancy in respect of this charge on the property but apparently if a sale is forced the tenancy is automatically severed. I am going to object to this charge but legally may not have a leg to stand on. If the court grants the charge it then opens the door for a sale to be forced as the next step. This debt is for £6000 which seems a ridiculously small amount to lose my home over. My only real chance is if ex partner quickly makes arrangements to pay the debt back and sticks to it. At least my half of any equity is safe but that doesn't mean much to me when I am facing losing my home, uprooting my child and the rest of my life in rented accommodation.

Gosh to lose a home over only £6k! Do you know what his other debts are as even if this £6k is paid there may be a lot more (as well as the mortgage debt)?

Yes there is more debt although I don't know how much exactly but the CAB adviser thought that this debt might originate with HSBC because apparently they are the only ones who always pursue debts to forced sale no matter how small. She said most creditors are happy to sit on the debt and let it accrue interest and even if a charge is placed on the property they don't force a sale. The solicitors acting for the creditor won't divulge any information to me because I am not the person the debt relates to even though I live in the property concerned!

My experience of this situation is that it's very hard if not procedurally impossible for the creditor to get an order for sale. The reason is that it's an equitable charge rather than a legal one. I'd sit back for now.

I would certainly try to persuade your ex to give you full details of all his debts if you can. It may be additional amounts have been added to the debt that should not have been (having seen what Wonga had been doing in the press yesterday) and there may be ways he can stop the debt getting bigger and bigger even if he cannot pay them now.

Have you tried finding a good mortgage broker who might be able to get the mortgage transferred (and the property) into your name (IF your ex partner would agree of course which he might not).

I have now spoken to the National Debtline and they say in practice an order of sale is unlikely especially as there is a child living in the house. I still want to fight the charge being placed on the property at all. Apparently it is standard to charge 8% interest so it would grow. I do not have the income to have the property in my name - i only pay the interest currently and the mortgage is 10 x my annual income. My ex has always said he considers the equity mine and we have a verbal agreement that if I ever sold he would only keep his original share of the deposit but of course this means nothing probably legally. I decided when I discovered that I couldn't get the house in my name to continue here because half a house is better than none and I wanted to provide stability for my child. I understand that there is something called an order of attachment where he can have payments taken directly from his wages (he does have a job). Does anyone know if I could argue for this? Is it worth seeing a solicitor? I don't have much money so don't want to see a solicitor if it won't make any difference. Thanks for the replies.

I don't know much about debt recovery. I don't like the sound of the 8% growing. I would certainly want it to be clear in writing with your partner on a document you both sign that you have 50% each or even more than 50% each. If only £6k is currently being claimed against the house for this one debt if that could be dealt with could you not put 99% of the house equity in your name - for tenants in common once the joint tenancy is severed you can register at the Land registry yuour % shareholdings. When my daughter was buying one possibility was that her and my name would go on the mortgage and deeds as owners but her share would be 99%. However you might not be able to do that without the mortgage company's consent. If it were possible then the joint registration would stay as it is but you would sever the joint tenancy and you would have some kind of declaration of trust that as part of your separation agreement your share to ensure the child is housed is 99% of the equity. I suspect that cannot be done until the current disputed debt/charging order is dealt with but if it were then after that although you are both liable for the house mortgage there would be no claim against the equity for his other external debtors.

I wonder if you could take a second or night job to raise the £6k to pay these people off in return for the 99% deal with your ex above. They may even accept £4k instead of £6k.

I suppose longer term to be able to take on the mortgage solely and transfer the property to your name your earnings might well rise to a level which means you could take on the mortgage even if that is in 5 years after a lot of full time work that might make life easier.

I would think an attachment of earnings is unlikely.

In my experience, to register a charge they will have already been to court and he would have had a judgement against him, he's not paid and now they are going for a charging order, which unfortunately they are able to do.

Thank you there are some helpful ideas there. I am kicking myself for not having got things arranged better before now. I didn't realise there were other options legally apart from getting the mortgage in my sole name. Unfortunately I can't take on extra work really - I already work all the hours my son is at school and as a lone parent with no family around there is no affordable/viable childcare (my son has a disability). I think I will object to the charge and request an attachment of earnings anyway as it is worth a try but resign myself to the idea that the charge will probably be placed and try to get the rest of the equity protected legally. I will also fight to have interest stopped on the debt. Thank you so much for the replies.