Sold House - Can a Charge Still be Made Over House?

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libby

Member
8 August 2014
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sydney australia
Hi, If I have sold my house and exchange is done, deposit taken, no cooling off period as auctioned can a firm threatening to put a charge over the property do so. The house is no longer legally mine, and can they get any of the proceeds after / before settlement under Property Law?

Really stuck here and my solicitor keeps asking a barrister and its costing me a fortune so i thought I may ask to save some costs.

Much appreciated
 

Tim W

Lawyer
LawTap Verified
28 April 2014
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Sydney
Hi, If I have sold my house and exchange is done, deposit taken, no cooling off period as auctioned can a firm threatening to put a charge over the property do so. The house is no longer legally mine, and can they get any of the proceeds after / before settlement?
Really stuck here and my solicitor keeps asking a barrister and its costing me a fortune so i thought I may ask to save some costs.
Much appreciated
  1. We can't answer in respect of your specific case.
    That said, you are entitled, as the client, to have a proper explanation
    of what your solicitor is doing on your behalf. So feel free to ask.
    And to insist on an answer in language you can understand.

  2. Don't confuse a caveat and a charge.
    A search of other posts about caveats may be helpful.

  3. Why would this be happening? Is there a debt somewhere?
 

Sarah J

Well-Known Member
16 July 2014
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Melbourne, Victoria
Hi libby,

If the threatened charge is for a loan, what does it say in the loan agreement about recovery of debt and securities?

Does the company have an interest in that particular property/asset (as in a mortgage) or do you owe the company a debt unrelated the property?
 
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Sarah J

Well-Known Member
16 July 2014
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250
2,389
Melbourne, Victoria
A charge over property/land (or an interest in property/land) can only be created in writing and signed by both chargor (debtor) and chargee (creditor). The company cannot create a charge unilaterally over property/land or the proceeds of property/land without already having the authority to do so in some prior loan agreement (ie. already having a fixed or floating charge over the property/land). This is why you should read your loan agreement carefully.

A charge is not like a mortgage, and in order to realise this charge, the company will need to apply to court. Only in this way, will the company have a realisable interest in your property/land or proceeds thereof.

Hope this helps.
 

Tim W

Lawyer
LawTap Verified
28 April 2014
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Sydney
...can a firm threatening to put a charge over the property do so
If they are "threatening to", then am I correct
in thinking that they don't already have one?

If what you say is correct, then it sounds like a threat being made
by somebody who has no idea what they are actually saying
(for example, it sounds a bit like the kind of rubbish that
a debt collecting agency would say to intimidate an unsophisticated debtor).