legal issue

Hi I would like to make a application to amend or vary a existing final court order relating to a mesher order where a provision should have been stipulated to prevent further borrowing on the
property before I register my beneficial interest at Land registry my share 45% this claused is
absent in the Final order could someone give direction for correct application form to proceed.
Thanks

D11 is the general form.

Was this an order imposed by the court or agreed between you? When was it made?

The order should state the value and amount of equity on which it was based.

Is the mortgage in sole or joint names? If joint, additional borrowing may only be taken out if both of you sign. If just one name, you should ensure matrimonial home rights are in place. No additional borrowing could be taken out without your agreement. This would be easier than applying to court especially atm when there a lits of delays.

Hadenoughnow

Hi thanks for replying a final court order was imposed 2014 part of a mesher order to transfer property and register a charge at Land Registry to protect my beneficial interest
of 45% share however there's no provision in the order stating no further borrowing or
Remortgaging to protect my beneficial interest as such action by the Appellant would dilute my Share surely under CPR 40.12 Slip Rule the Order can be varied as a omission by the judge may I point out this order not been executed. Thanks

I wonder why you're bothered about it. It should have been in the original order but I wouldn't say it's a disaster that it's been left out.

Your numerical place in the Charges Register is fixed. You get your 45% of the net sale proceeds provided there's enough to left over after payment of the prior charge - which will be the mortgage. If there's not enough to pay you the 45% of the net sale proceeds then the mortgage must have been in arrears at time of the sale. Payment of that mortgage should have been a term in the order. If there's a breach of that condition then you have a claim against your ex's interest as she did not comply with it and reduced your actual monetary share.

If someone living in a home subject to a mesher order wants to borrow more money then they would have to persuade a secured lender to grant a further advance on existing borrowing or involve a new lender. In either case it won't affect your position in the queue and the new lender would have to be behind you unless at the time the mortgage commenced. the further lending. or commitment to further lending or/and open ended lending was part of the original borrowing agreement. Unlikely with a standard mortgage.

The only way they would lend in those circumstances would be for the lender to ask for your agreement to 'drop down the queue' - behind them.

If the 'no further borrowing without consent' WAS in the original order, which you're trying to put in now, then there would be a rider to the effect "consent is not to be unreasonably withheld'.

I personally wouldn't bother - but if you are asked for consent then act "reasonably" in any event. That means lots of details...

Thank you for your direction excellent website !