Have you been served with a Charging Order?

A charging order is a court order that secures an unpaid judgment debt against a debtor’s property, land, or investments, similar to how a mortgage secures a loan. It doesn’t force the debtor to pay immediately, but it means that if the property is later sold or remortgaged, the debt must be paid off from the proceeds before the debtor sees any money themselves.

Charging orders are governed by the Charging Orders Act 1979 and CPR Part 73. They are one of several methods a judgment creditor can use to enforce a debt in England and Wales, and are often chosen specifically because the debtor owns valuable property but doesn’t have the readily available cash, or income, to pay the debt outright.

When Can You Apply for a Charging Order?

You can apply for a charging order at any time after judgment has been given. However, the court will generally only grant one where the debtor has failed to pay the judgment when it was due, or has missed one or more instalments under an agreed payment plan. If instalments are still being paid but none have been missed, an application can still be made, but the court will take that ongoing payment history into account before deciding whether the order is appropriate.

How Does the Charging Order Process Work?

There are two stages. The first is an interim charging order, which the court can grant without the debtor being told in advance. This stops the debtor selling or transferring the property before a hearing takes place, and it is registered against the property straight away to protect the creditor’s position in the meantime. The second stage is the final charging order. At a court hearing, the debtor has the opportunity to object, for example by disputing the debt itself, or by asking the court to take their personal circumstances into account. If the court is satisfied it is appropriate to do so, it makes the charge permanent, and it is registered at HM Land Registry.

A charging order can be secured against land or property, using court form N379, or against securities, shares, or funds held in court, using court form N380. A court fee is payable when applying, and if the order is granted, this fee is usually added to the amount the debtor owes, although it is not refunded if the application is unsuccessful. The full process, from application to a final, registered order, typically takes several months, depending on whether the debtor objects and how quickly a hearing can be listed.

It is also worth knowing that a charging order does not automatically take priority over other charges already registered against the property. If there is an existing mortgage, for example, that charge would normally be paid first from any sale proceeds, with the charging order ranking behind it.

Does a Charging Order Force a Sale of My Property?

No, not by itself. A charging order simply secures the debt against the property. If the debtor still does not pay, the creditor would need to make a separate application to the court for an order for sale. Courts do not grant these automatically. They weigh up the debtor’s circumstances carefully, and tend to be more cautious where the property is the debtor’s family home, particularly where children are living there.

What If the Property Is Jointly Owned?

If the debtor owns the property jointly with someone else, and the debt is only in the debtor’s name, the charging order can only attach to the debtor’s own share of the property, known as their beneficial interest. It cannot be used to claim against a co-owner’s share. In practice, however, this can still complicate matters considerably when the property eventually comes to be sold, since the co-owner’s interest has to be properly accounted for.

Charging Order vs. Other Enforcement Methods

A charging order is one of several enforcement tools available once a judgment has been obtained, and it is worth understanding how it compares to the alternatives, since the right choice depends heavily on what is known about the debtor’s financial position.

• Warrant of control: a bailiff visits the debtor to collect payment or take goods for auction; suits cases where the debtor has valuable, removable assets.
• Attachment of earnings order: the debtor’s employer deducts money directly from their wages; only available where the debtor is in regular paid employment.
• Third-party debt order: freezes money someone else (most commonly a bank) owes the debtor, and redirects it to the creditor.
• Charging order: tends to be the preferred route specifically where the debtor owns property, but the other routes aren’t realistic or wouldn’t recover the full amount owed.

Charging Orders and Company Debtors

Where the debtor is a company rather than an individual, a charging order over company-owned property can be a useful alternative, or sometimes a first step, to a winding-up petition. This is particularly relevant where the company has a tangible, valuable asset worth securing a debt against, but a winding-up petition might otherwise force the company into liquidation before the underlying dispute is properly resolved, which is not always in the creditor’s best interests either. Deciding which enforcement route best protects a creditor’s position depends heavily on the company’s overall financial health, what other creditors are owed, and how quickly payment is genuinely needed.

What Happens If You Ignore a Charging Order Application?

Ignoring a charging order application, whether you are the debtor or a co-owner of the property, rarely improves the outcome. The interim order is already registered and protecting the creditor’s position by the time you are notified, so doing nothing simply means losing the opportunity to raise a genuine objection, such as a dispute over the underlying debt, an error in the amount claimed, or personal circumstances the court ought to weigh up before making the order final. Attending the hearing, or instructing a solicitor to do so on your behalf, is the only way to have those points properly considered before the charge becomes permanent.

Can a Charging Order Be Removed?

Yes. If the underlying debt is paid off in full, the creditor should apply to have the charge removed from the property so that it no longer shows on the title at the Land Registry. A debtor can also apply to the court to vary or discharge a charging order in certain circumstances, though this is not automatic and requires a proper application setting out the grounds relied on.

How LEXLAW Can Help

Whether you’re a creditor trying to decide how best to enforce a judgment, or you’ve been notified that a charging order has been applied for against your property, timing matters considerably, particularly at the interim stage, where you may only have a short window to respond before the final hearing takes place. Getting advice early, before that window closes, gives you the best chance of either securing your position as a creditor or properly protecting your interest as a debtor or co-owner, rather than having the outcome decided in your absence. Get in touch with LEXLAW for advice on enforcement strategy or defending against a charging order application.