Charging Orders and Orders for Sale

/in , /by

Kerrie Culverwell, Senior Property Solicitor

by Kerrie Culverwell, Senior Property Solicitor

A Charging Order can be sought to secure a charge in favour of a Creditor over the Debtor’s property. This method is most effective where there is substantial equity in the land or property and where the Debtor is the sole owner. This is because a charging order takes effect subject to other charges, such as mortgages on the property.

An Order for Sale is a method of enforcing a Charging Order. If the court grants an Order for Sale the property can be sold by the Creditor who is then able to recover their debt from the sale proceeds. When making the Order the court will determine what value the property should be sold for and the method by which the property should be sold.

The Steps involved are briefly summarised as follows:-

  1. Evidence Gathering – the Creditor must take all reasonable steps to obtain the evidence to be submitted with the claim form. Practice Direction 73.4.3 sets out the evidence required.
  2. Make the Application – Using a Part 8 claim form and usually at the court that made the Charging Order. The claim form should include the evidence gathered at point 1, or if not separate written evidence should also be submitted.
  3. Court gives Directions and Fixes a Date for a Hearing
  4. Service of Claim Form on the Debtor and any other interested parties. Follow any other directions given by the Court at stage 3.
  5. Hearing – the Court will exercise their discretion as to whether an order is made. If an order is made it will give the Debtor one last chance to pay, after which the order will specify the date by which the Creditor should get possession of the property in order to facilitate the sale.
  6. The Order will specify the value the property should be sold for, the method by which the property should be sold and how legal title will be transferred to the purchaser.
  7. Sale Proceeds – if the property is sold successfully the proceeds will be applied in the following order:-
  • Costs and charges of sale.
  • Charges with priority (i.e. any mortgage/s).
  • If the property is jointly owned, the co-owner receives their share.
  • Creditor with Charging Order.
  • Any balance goes to the Debtor.

If, for whatever reason, an Order for Sale is not successful nothing will happen to the Charging Order – the charge will remain on the property and interest will continue to accrue.

Should you need any advice on Charging Orders or Orders for Sale, please get in touch with the team at legal@nwleicestershire.gov.uk.