ABSTRACT
However, there are ways of dealing with this problem. Three separate situations need to be considered.
20.5.1 Where there is already a charging order over the home and the creditor seeks an order under of the Trusts of Land and Appointment of Trustees Act 1996, s 14
In this situation the creditor’s claim is likely to prevail because the creditor’s interest is one of the specific criteria under s 15(1)(d) which must be considered by the court, although a sale may be postponed to mitigate immediate hardship to the family (as in Bank of Ireland Homes Mortgages v Bell [2001] 2 FLR 809). Postponement tends not to be for long: for example, in Re Turner [1975] 1 All ER 5, the court balanced the interests of the creditors and the family and ordered the sale of the home within two months; this may be regarded as fairly average. In Re Bailey [1977] 2 All ER 26, the sale was ordered immediately-obviously tough on the family. In Re Lowrie [1981] 3 All ER 353, the sale
was ordered in three months-a sufficient delay to provide some breathing space. However, in Re Holliday [1980] 3 All ER 385, the sale was postponed for five years until the youngest child was age 17. This is not at all the norm, especially in the light of more recent cases where the court appears to be getting tougher, initial longer periods being reduced drastically on appeal.
