Tweet
Hi,
Please can someone help me. I had a Court Order to vacate my joint owned property and Force of Sale, despite my son making an offer of £220,00 for the house it went to auction, and was sold STC for £206,00. There was domestic violence involved so that I could not do mediation.
I had to vacate the property on October 2017. Which I did. My ex partner was in charge of the property until it was went to auction on 29/03/2018.
I had nowhere to live so had no forwarding address. In January 2018 Calbot Financial pushed through a CCJ, despite me not being ablate answer to this as i had no correspondence as I was no longer at that address, and had no permanent address. They then went on to get a restriction order which I eventually contested when I found out.
Now my conveyancing solicitor, which is from the same firm as my ex representing solicitor, has said this:
Dear Mrs Smith,
Further to our telephone conversation, I write to confirm my understanding of the circumstance which of this matter and to confirm to you why I am unable to complete the sale of the property until the issues arising from the restriction application have been resolved. I have also heard further from Restons and the figure of £1,473.89 is unfortunately in addition to the previous figure of £10,816.09, rather than instead of. As you will see from the attached letters, one appears to relate to Vanquis and the larger figure relates to Lloyds.
I would take this opportunity to place on record that I am somewhat surprised and indeed perturbed that you have not, at any point, discussed this issue with me prior to it being revealed today by the Buyer’s solicitor, given that it is clearly material to both the property and my instruction in respect of the sale of the same.
I would again confirm that I am jointly instructed in this matter, I am not therefore ‘taking a side’ and I do hope that the circumstances prevailing do not appear to you in this way. I am, in all parties best interests, attempting to facilitate the sale of the property in accordance with the various Court Orders.
With regard to the restriction which has been applied for by Restons Solicitors, who I believe have been instructed by Lloyds and Vanquis (please see letters attached), this will have priority over any other applications now made. This is confirmed by the pre completion priority search undertaken by the Buyer’s solicitors. I attach this now for your reference. I understand that you have taken advice from the Citizens Advice Bureau (“CAB”) as to this application. CAB have advised that there is not a Charging Order in place. As I have not actually seen any of the documentation, I cannot confirm that this is correct. However, were there a Charging Order, I would not expect this particular application to be made (as an application to also register a charge would have been made). However, Restons have made an application for the registration of a restriction, this will have priority over any Buyer’s application to register their purchase and, by its very nature, the restriction will restrict the registration of the Buyer’s purchase. I would ask that, when speaking again with CAB, you refer them to the Land Registry Practice Guide concerning restrictions (Land Registry Practice Guide 19) which confirms specifically that ‘Restrictions prohibit the making of an entry in respect of a disposition or a disposition of a specified kind. The prohibition may be indefinite or for a specified period and it may be absolute or conditional on something happening (for example on the consent of a third-party being obtained).’ As we discussed, a sale is a ‘disposition’ and will therefore be caught by the restriction.
Having no knowledge of the underlying matter of the debt which has given rise to the application made by Restons, I cannot advise as to the justification they may seek to rely on for such an application. I am aware that you contest the debt. I do not therefore by any means propose to make any payment to Restons in the absence of a Court Order. My proposal in this respect is to retain £10,816.09 and £1,473.89 (being the alleged balance of the debt) in this firm’s client account, subject to an undertaking that this will be released to Restons only when they have obtained a Court Order in respect of the debt. This would then allow you the opportunity to contest the debt formally, as you wish to. This is also subject of course to Restons agreeing to withdraw the application for the restriction immediately.
I appreciate that you are not minded to accept my proposed solution to this matter. As advised, I must of course act only on your instructions. Currently, I am therefore unable to proceed to completion as the application for the restriction will not be withdrawn by Restons. In the absence of either payment or the implementation of my proposal described above, I cannot therefore see any way that this sale can complete until the debt issue is resolved.
As to the next steps in respect of the sale, where we fail to complete today, which is the contractual completion date, the Buyer’s solicitor will serve a Notice to Complete requiring that we complete within 10 days. Where we then fail to complete within this timeframe, the Buyer will be entitled to require the deposit to be returned to him and to terminate the Contract. The Buyer would also potentially be able to claim damages and other remedies.
As I had discussed with you earlier today by telephone, I am deeply concerned that, as the retention of sale proceeds is the only realistic and reasonable mechanism which would allow for completion to take place today, a failure to allow for such a proposal may be viewed as an obstruction of the sale of the property and therefore a breach of the Court Orders requiring the sale of the property. This could therefore be seen as contempt of court. I am sure you will appreciate the seriousness of contempt of court which may be both a civil and criminal matter and may result in fines and, in some circumstances, custodial sentences. Additionally, this would give rise to a conflict of interest as your interest in this matter and Mr Smith’s interests would clearly not align. As I would then not be able to act in both of your best interests, I would need to cease acting in this matter.
I would, in light of the above, invite you to re-consider your instructions on how this matter should proceed. As discussed, I am more than happy to speak with an adviser at CAB in respect of the mechanics of Land Registry restrictions. In reverting, I would also be grateful of copies of any relevant documentation in this matter, such as any previous Court Orders, notwithstanding that I am not advising upon the debt and will require these only in respect of their relevance to the sale.
I look forward to hearing from you as a matter of urgency.
Please can someone help me. I had a Court Order to vacate my joint owned property and Force of Sale, despite my son making an offer of £220,00 for the house it went to auction, and was sold STC for £206,00. There was domestic violence involved so that I could not do mediation.
I had to vacate the property on October 2017. Which I did. My ex partner was in charge of the property until it was went to auction on 29/03/2018.
I had nowhere to live so had no forwarding address. In January 2018 Calbot Financial pushed through a CCJ, despite me not being ablate answer to this as i had no correspondence as I was no longer at that address, and had no permanent address. They then went on to get a restriction order which I eventually contested when I found out.
Now my conveyancing solicitor, which is from the same firm as my ex representing solicitor, has said this:
Dear Mrs Smith,
Further to our telephone conversation, I write to confirm my understanding of the circumstance which of this matter and to confirm to you why I am unable to complete the sale of the property until the issues arising from the restriction application have been resolved. I have also heard further from Restons and the figure of £1,473.89 is unfortunately in addition to the previous figure of £10,816.09, rather than instead of. As you will see from the attached letters, one appears to relate to Vanquis and the larger figure relates to Lloyds.
I would take this opportunity to place on record that I am somewhat surprised and indeed perturbed that you have not, at any point, discussed this issue with me prior to it being revealed today by the Buyer’s solicitor, given that it is clearly material to both the property and my instruction in respect of the sale of the same.
I would again confirm that I am jointly instructed in this matter, I am not therefore ‘taking a side’ and I do hope that the circumstances prevailing do not appear to you in this way. I am, in all parties best interests, attempting to facilitate the sale of the property in accordance with the various Court Orders.
With regard to the restriction which has been applied for by Restons Solicitors, who I believe have been instructed by Lloyds and Vanquis (please see letters attached), this will have priority over any other applications now made. This is confirmed by the pre completion priority search undertaken by the Buyer’s solicitors. I attach this now for your reference. I understand that you have taken advice from the Citizens Advice Bureau (“CAB”) as to this application. CAB have advised that there is not a Charging Order in place. As I have not actually seen any of the documentation, I cannot confirm that this is correct. However, were there a Charging Order, I would not expect this particular application to be made (as an application to also register a charge would have been made). However, Restons have made an application for the registration of a restriction, this will have priority over any Buyer’s application to register their purchase and, by its very nature, the restriction will restrict the registration of the Buyer’s purchase. I would ask that, when speaking again with CAB, you refer them to the Land Registry Practice Guide concerning restrictions (Land Registry Practice Guide 19) which confirms specifically that ‘Restrictions prohibit the making of an entry in respect of a disposition or a disposition of a specified kind. The prohibition may be indefinite or for a specified period and it may be absolute or conditional on something happening (for example on the consent of a third-party being obtained).’ As we discussed, a sale is a ‘disposition’ and will therefore be caught by the restriction.
Having no knowledge of the underlying matter of the debt which has given rise to the application made by Restons, I cannot advise as to the justification they may seek to rely on for such an application. I am aware that you contest the debt. I do not therefore by any means propose to make any payment to Restons in the absence of a Court Order. My proposal in this respect is to retain £10,816.09 and £1,473.89 (being the alleged balance of the debt) in this firm’s client account, subject to an undertaking that this will be released to Restons only when they have obtained a Court Order in respect of the debt. This would then allow you the opportunity to contest the debt formally, as you wish to. This is also subject of course to Restons agreeing to withdraw the application for the restriction immediately.
I appreciate that you are not minded to accept my proposed solution to this matter. As advised, I must of course act only on your instructions. Currently, I am therefore unable to proceed to completion as the application for the restriction will not be withdrawn by Restons. In the absence of either payment or the implementation of my proposal described above, I cannot therefore see any way that this sale can complete until the debt issue is resolved.
As to the next steps in respect of the sale, where we fail to complete today, which is the contractual completion date, the Buyer’s solicitor will serve a Notice to Complete requiring that we complete within 10 days. Where we then fail to complete within this timeframe, the Buyer will be entitled to require the deposit to be returned to him and to terminate the Contract. The Buyer would also potentially be able to claim damages and other remedies.
As I had discussed with you earlier today by telephone, I am deeply concerned that, as the retention of sale proceeds is the only realistic and reasonable mechanism which would allow for completion to take place today, a failure to allow for such a proposal may be viewed as an obstruction of the sale of the property and therefore a breach of the Court Orders requiring the sale of the property. This could therefore be seen as contempt of court. I am sure you will appreciate the seriousness of contempt of court which may be both a civil and criminal matter and may result in fines and, in some circumstances, custodial sentences. Additionally, this would give rise to a conflict of interest as your interest in this matter and Mr Smith’s interests would clearly not align. As I would then not be able to act in both of your best interests, I would need to cease acting in this matter.
I would, in light of the above, invite you to re-consider your instructions on how this matter should proceed. As discussed, I am more than happy to speak with an adviser at CAB in respect of the mechanics of Land Registry restrictions. In reverting, I would also be grateful of copies of any relevant documentation in this matter, such as any previous Court Orders, notwithstanding that I am not advising upon the debt and will require these only in respect of their relevance to the sale.
I look forward to hearing from you as a matter of urgency.
