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(c) Floating charge
This category of charge is peculiar to companies and represents one of the advantages of the company over other business forms. The fl oating charge is most commonly made in relation to the ‘undertaking and assets’ of a company and does not attach to any specifi c property whilst the company is meeting its requirements as stated in the debenture document. The security is provided by all the property owned by the company, some of which may be continuously changing, such as stock-in-trade.
Thus, in contrast to the fi xed charge, the use of the fl oating charge permits the company to deal with its property without the need to seek the approval of the debenture holders. However, if the company commits some act of default, such as not meeting its interest payments, or going into liquidation, the fl oating charge is said to crystallise. The value of the assets subject to the charge may be realised in order to pay the debt owed to the fl oating charge holder, although the Enterprise Act 2002 introduced a new procedure to limit the powers of fl oating charge holders to appoint administrative receivers and requires them to make use of the general administration procedure.
All charges, including both fi xed and fl oating, have to be registered with the Companies Registry within 21 days of their creation. Failure to register the charge as required has the effect of making the charge void, i.e. ineffective, against any other creditor, or the liquidator of the company. The charge, however, remains valid against the company, which means in effect that the holder of the charge loses their priority as against other company creditors. In addition to registration at the Companies Registry, companies are required to maintain a register of all charges on their property. Although a failure to comply with this requirement constitutes an offence, it does not invalidate the charge.
In relation to properly registered charges of the same type, they take priority according to their date of creation. However, as regards charges of different types, a fi xed charge takes priority over a fl oating charge even though it was created after it.