Enforcing a judgement - i am owed

[silvershower]

i won a small claims case against a sole trader contractor that caused a huge amount of damage in my house. He refused to pay and offered a tiny amount per month over many years, which I declined as it wasn't detailed in the CCJ. He has numerous rental properties which he is selling to fund his retirement. I made applications for charging orders against the remaining unsold properties, but as they are in joint names between him and his wife, and the debt is with him alone, no charges could be registered with the land registry. I have had to enter restrictions instead. I've a few questions as I am hugely out of pocket with this whole situation and he is sat on equity after having owned these properties for long periods, and I believe the debt to me is small in comparison to that. The debt is however a large amount to me.

• Am I wasting my time with the restrictions? I understand I would need to give consent for the sale to take place, with some conditions that might render this impossible...
• Do I still need a charging order hearing or is that not the course of action when restrictions are being used?
• The restrictions won't be in place before the charging order hearing anyway - should I delay the hearing?
• Will I need to instruct a solicitor at some point to handle the eventuality when he comes to try and sell one of these properties with a restriction in place?

thanks very much, I hope you can help.

[CYNthesys]

Re: Enforcing a judgement - i am owed

A friend of mine who jointly owns her home with her partner has a charging order against her half share of the home, so unless the rules have changed dont know why you cant have a charge registered against jointly owned popertyr

[silvershower]

Re: Enforcing a judgement - i am owed

A friend of mine who jointly owns her home with her partner has a charging order against her half share of the home, so unless the rules have changed dont know why you cant have a charge registered against jointly owned popertyr

It's determined by how they own the property, if it's tenants in common then it's split by percentage individually owned. If jointly owned then you can't. I think.

[CYNthesys]

Re: Enforcing a judgement - i am owed

All I know is that friend and her partner have a joint mortgage on their jointly owned property. Friend had a personal debt of £5000 which ended up being charged against the property

[wales01man]

Re: Enforcing a judgement - i am owed

I had a charge on a jointly owned property.
the Op could issue a SD and force bankruptcy

[FlamingParrot]

Re: Enforcing a judgement - i am owed

There's a rather long discussion thread on restrictions and COs here: http://forums.moneysavingexpert.com/....php?t=1839539 It's written from the other side, as there are more debtors than creditors on these fora, but the principles are the same. It should also give you some insight into the sort of thing he may try in order to avoid paying when the property is sold, although in the majority of cases restrictions do get paid from the proceeds of the sale (provided there's enough equity) by the solicitors handling the sale.

You may also want to look at this: http://www.hmrc.gov.uk/manuals/dmbmanual/dmbm667320.htm

A notice or restriction does not impose an obligation to make payment when the property is sold. However if the judgment debtor (or any one of the co-proprietors) attempts to dispose of the property, the District Land Registry will advise the claimant of the interest in the property. Prospective purchasers will be wary of buying a property subject to a notice or restriction and, more often than not, will want the notice or restriction removed before completing the sale. This is normally sufficient incentive for the judgment debtor to pay the judgment debt. Even where they do not do so voluntarily, the fact that they have received money and have failed to pay the judgment debt is valuable evidence in support of a request for a judgment summons.

Do not agree to have the notice or restriction removed until the judgment debt has been paid.

You say the debt is for £5k, presumably you will record a restriction against one of the properties, not all of them.

Once the restriction is in place, it may be possible to apply for an order for sale. These are not often granted by the courts but the fact the property is a BTL investment as opposed to a family home may make it easier to obtain. Being a jointly owned property may be a hurdle but it's still possible to obtain one. This could be an alternative to bankrupting the debtor.

4. Can the Court make an order for sale over a property owned by the debtor jointly with a third party?

Yes. The preceding charging order will be made only over the share of the property that belongs to the judgment debtor. The fact that the property is jointly owned will not prevent the court from making an order for sale of the property. Again, the court must exercise its discretion; it will no doubt balance the impact on the creditor of being prevented from enforcing the charging order and the impact on the joint owner of being forced to sell their interest in the property.

Please note that the debt charged will only be recoverable from the share of the proceeds following sale that belong to the judgment debtor. If, for example, a property that is owned by two people equally is sold to enforce a charge of £30,000, and where the proceeds of sale, following the discharge of any charges with priority (most commonly a mortgage) are only £40,000, the creditor will only be able to recover £20,000, the share owned by the judgment debtor.

*Source: http://www.bttj.com/Articles/Orders-for-sale-FAQs.shtml Please note this is just a reference to an article and does not constitute a recommendation to the firm in question.