Horses may be led to water ...
atticus wrote:Charging orders can be enforced by orders for sale.
dls wrote:The charge remains valid... There is no good reason why it should not be enforceable.
I knew the above facts before I started this thread. They do not address the specific question I raised. I'll rephrase it.
There are a number of factors a court will take into account if asked to make an order for sale including: whether the debtor has funds to pay and is deliberately refusing to use them: whether the debt can be repaid in some other way; whether the property is a family home; what equity there is in the property. The main purpose of a charging order is to secure the debt with the intention that the creditor should at the very latest get paid when the property is sold. If the primary purpose were to allow the creditor to convert property to cash a charging order would come armed with a power of sale. The question is not whether the status of a charging order changes on the transfer of the property, but whether on an application for an order for sale the court should give special weight to the fact that the creditor has been kept out of his money.
It is a classic case of a court having to make a decision against one of two "innocent" parties. The new property owner will argue that he does not owe the creditor any money, that the position he finds himself in is none of his doing and that it would be wholly unreasonable to make an order for sale. The creditor will argue that the charging order was there on the register plain for the new owner or his conveyancer to see, that he should not be kept out of his money because the discharge of the debt was not dealt with on completion as it should have been and that if he is not granted an order for sale the same thing could happen again so that realisation of his security would once again be postponed.