Not sure which forum to post this to!

[Bertie16]

Hello, I am new to this group so apologies I do not know the best forum to post my question on...if any one can point me in the right direction I would be grateful, thank you! Here goes...

I am after some advice for my Dad please....we received a letter from the Land Registry stating that they had received an application to remove a caution off a property.

It turns out that my step mother sold her house to my step sister and her husband in 1997 but my step mother raised a caution on the property for £3000 that they owed to her. My step mother died in 2005 and all her estate passed to my Dad.

We knew nothing about this caution until the paperwork was received 2 weeks ago. My step sister wants to remove the caution as they are selling their house. Alongside this my step sister and her husband owe my Dad £10,000...£5,000 of this was lent in Nov 2005 and was due to be paid back a year later and the other £5,000 was lent in Dec 2005 and the paperwork stated the money would be paid back when they sold their house. We think they are trying to sell up and make a run for it basically without paying their debt.

When my Dad has asked them in the past when they could repay their debt for years they have stated they cannot afford it. 3 years ago they basically told my Dad *expletive* off and hence Dad hasn’t spoken to them since.

We we are just trying to ascertain if it is worth lodging an objection to the caution with the Land Registry and trying to peruse the debt. My Dad is a pensioner now and every penny counts...

Thank you for taking the time to read this and if anyone has any similar experiences it really would be great to hear from you.

[jaguarsuk]

.£5,000 of this was lent in Nov 2005 and was due to be paid back a year later and the other £5,000 was lent in Dec 2005 and the paperwork stated the money would be paid back when they sold their house. We think they are trying to sell up and make a run for it basically without paying their debt.

I don't know about whether you can object to the caution being removed as I assume it was registered in the name of your now deceased step mother, it would probably come down to whether her estate is still owed the money and I honestly can't assist with probate matters as I don't know anything about them.

des8 , Peridot or R0b may be able to assist with the question regarding the caution?

The Nov 2005 £5K did that have a written agreement?

And I assume you still have the paperwork for the Dec 2005 £5K?

If you do then you could look at filing a claim in the County Court as if they are planning to sell I'd imagine they'll be getting a mortgage on the next place, but with a CCJ against them that's unlikely to happen. The Letter Before Action should therefore evoke some sort of response if a suitable warning about if being successful the CCJ could affect their credit rating is added.

Even if you are successful in preventing the lifting of the caution I think your dad ought to consider claiming to recover his money as you state the debt was supposed to be rapid in 2006 and obviously it's now been outstanding for a further 11 years (almost 12).

[Bertie16]

Many thanks for your response. I have sent a letter of intent to the debtors (as this seemed to be the advise before going to small claims court) but other than that I have not known what to do. We still have all the paperwork they signed when taking the loans off my Dad (the November and December loans both had signed written agreements)

Thank you for the mention of the county court...I will look at that option now.

Appreciate your support here.

[jaguarsuk]

Many thanks for your response. I have sent a letter of intent to the debtors (as this seemed to be the advise before going to small claims court) but other than that I have not known what to do. We still have all the paperwork they signed when taking the loans off my Dad (the November and December loans both had signed written agreements)

Thank you for the mention of the county court...I will look at that option now.

Appreciate your support here.

Here is some info for you on small claims: https://www.gov.uk/make-court-claim-for-money

It might be advisable to post copies of the agreements here (with personal info removed) and then we can have a look over them to ensure you don't throw good money after bad.

If you do decide to claim then come back here, we can help guide you through issuing the claim online and drafting a Detailed Particulars of Claim to serve after it's issued.

[Bertie16]

Thank you, they are exceptionally simple agreements...I will photo them when I get home and post on here. Thanks again!

[des8]

I think the position is as follows. but will need to check it out unless someone can confirm/deny it:
The caution was registered prior to the 2002 Land Registry Act, which effectively turns that caution into a restriction.
If your father objects, that restriction will not be lifted until his agreement is obtained.
Selling with a restriction in place is nigh on impossible
Now is the time to remind the debtors of what they owe, and what they need to do to obtain your father's agreement to lift the restriction

[Bertie16]

Thank you DES8 for that, it's really helpful to receive this knowledge. I am slightly nervous about submitting the objection to the land registry (well composing the e-mail for my Dad to send) in terms of getting all the jargon right! Do you think it's best to get a solicitor to complete this activity? Thank you again

[Bertie16]

Hi JAGUARSUK, I have uploaded the simple agreements Dad had with my step sister and her husband...hopefully these can be viewed ok. Thanks again

[des8]

I don't think there is any set way of responding other than to confirm that your father objects to the caution being lifted as the loan placed by the original cautioner and inherited by your father remains unredeemed.
No need to mention amount, but should be completed with a statement of truth.

You could check (possibly) with land registry or run it past a solicitor

[Bertie16]

Thank you. I think you are right...I will run it by a solicitor to be (hopefully!) 100% sure in my submission, the land registry have given us a deadline of this Friday. I would like Dad to get some money back from this sad scenario, hence my nerves about getting anything wrong here. I will keep you updated on progress. Thanks again

[jaguarsuk]

Hi JAGUARSUK, I have uploaded the simple agreements Dad had with my step sister and her husband...hopefully these can be viewed ok. Thanks again

Okay, so the agreement dated December 2005 is in default as it was due by the end of April 2006 and therefore your father could make a claim in the county court to recover this.

The one dated November 2005 is not in default due to the wording of it being repaid when the above property is sold. Upon sale of the house then it would become due and it may be worth looking into whether a charge can be placed on the property in respect of this loan, a Class C(i) charge I believe and best filed by a solicitor with the land registry.

Their mortgage company will get all stroppy about it, but that's their problem not your fathers.

[Bertie16]

Thank you! I have an appointment this afternoon with a solicitor, I will keep you updated on progress and their recommendations etc. Appreciate everyone’s support here.

[jaguarsuk]

Thank you! I have an appointment this afternoon with a solicitor, I will keep you updated on progress and their recommendations etc. Appreciate everyone’s support here.

I would concentrate on the charge with the solicitor and ask them if you were to file a small claim how much they would charge as an appearance fee for a hearing?

With guidance here you can keep costs down by acting as Litigant in Person, costs are not recoverable unless there is unreasonable conduct by the other side in the small claims track and so a solicitor acting on a simple claim such as this could prove unnecessarily costly.

Depending on your confidence to go to court and speak on behalf of your dad then you may not need a solicitor at all for the claim on the December 2005 agreement.

There are defences they can try to pull, which I would advise them to try to pull if they were consulting me and so it would be wrong of me not to mention those.

Mainly that agreement's socially (between family members or friends) are not always intended to commence legal agreements and simply good faith gestures on the part of the person making the offer subsequently agreed by the recipient. There is case precedent for that in Balfour v Balfour 1919.

The fact that there is a written agreement would make that very hard to argue and would probably be defeated, but I don't want you to get a shock if they go to a solicitor and that's the defence they put forward.

That said, if the Solicitor says they can do it all for a fixed fee and your happy with the fee then go for it as it takes the strain off you.

[des8]

Whilst agreeing with jaguarsuk I think your best hope of recovering any of those loans is to negotiate using that charge as a bloody big lever.
Refuse to discuss the charge until the more recent loans have been at least partially repaid
Un til the charge is removed they can't sell.

[Bertie16]

Thank you! I’ll focus on keeping that caution in place then as the first port of call, once that hurdle is hopefully overcome I can focus on using that as the leverage for the the loans as you advise. I will ask about the fixed fee too from the solicitor, appreciate your guidance there. Thanks again