PROCEDURE FOR DISCLAIMING
NOTE: THIS PART IS ONLY APPLICABLE IN RELATION TO CASES WHERE THE PETITION WAS PRESENTED BEFORE 6 APRIL 2010 ( OR WHERE A RESOLUTION FOR VOLUNTARY LIQUIDATION OR CERTAIN ADMINISTRATION PROCEEDINGS OCCURRED BEFORE THAT DATE – see Annex F)
A disclaimer of onerous property (see paragraph 34.3) is effected by the service of a statutory form, referred to as a notice of disclaimer, [note 1] [note 2] [note 3], sealed by the court, on interested parties (see paragraph 6) [note 4] [note 5].
The notice of disclaimer should contain a description of the property sufficiently detailed to ensure that there can be no doubt as to the property being disclaimed [note 6] [note 7]. For example, in relation to a lease a suitable wording would be:
“…..the [type of lease, e.g., counterpart] lease dated [date of lease] of the premises known as and situated at [address of property] comprising [e.g., a two-storey terraced house] which was let to the [company/bankrupt] from [date of commencement of lease] at an [annual/monthly] rent of [£].”
A suitable description for a right of action might be:
“……the claim numbered [claim number] in the [court] between [insolvent] and [other side] which was issued on [date].”
Where there is some uncertainty whether or not the insolvent has an interest in the property in question, or as to the nature of the interest, the official receiver may preface the description with the following:
“…..all the interest (if any) of [the company/bankrupt] in the……”
Similarly, where the official receiver is unable to obtain full information regarding the property (for example, where the director or bankrupt has failed to co-operate) he/she may describe the property in terms containing that information which is known. It is generally better to issue such a disclaimer based on incomplete information than not issue one at all.
The power to disclaim is given to the liquidator or trustee [note 8] [note 9]. Where the official receiver is liquidator or trustee, this power is extended to any assistant official receiver appointed as a deputy official receiver to that official receiver [note 10] [note 11]. It is likely that an assistant official receiver in a standard official receiver’s office will have been appointed as a deputy [note 12] but, where there is doubt, reference should be made to the relevant certificate of appointment provided by the Secretary of State.
Amended April 2010
Once the notice of disclaimer has been authenticated by the official receiver as liquidator/trustee, it is sent to court with a copy [note 13]. The court will seal the copy notice and endorse it with the date of filing before returning it to the official receiver. The other notice will be sealed and endorsed with the date of filing and retained on the court file.
Amended April 2010
The notice to interested parties need not be authenticated (by the official receiver, or any other officer) and can be issued by anybody acting for the official receiver.
Where the official receiver is issuing a disclaimer to an interested party based in a German-speaking, French-speaking or Spanish-speaking country he/she may issue the documents attached at Annex B, Annex C or Annex D respectively.
If, after the end of the seven-day period, the official receiver becomes aware of any other interested party, he/she must send them a copy of the notice of disclaimer, but this will be for information purposes only.
Where the official receiver issues a disclaimer in respect of a firearm, he/she should serve notice of the disclaimer (see paragraph 1) on the firearms licensing section of the local police force.
See paragraphs 31.6.32 to 31.6.36 for further information on dealing with firearms.
When the disclaimer has been served the official receiver must inform the court of those persons who have been sent or given copies of the notice of the disclaimer giving their name, address and nature of their respective interest in the property [note 26] [note 27].
The official receiver is required to give notice to those parties [note 28] [note 29] within seven days and, therefore, delayed notice cannot be used as a tool to delay the effectiveness of the disclaimer (see Part 4). Where, between the sealing of the disclaimer and its return to the official receiver, another liquidator or trustee is appointed then the official receiver should bring the outstanding service to the notice of the practitioner appointed as a matter of urgency in order that they can effect timely service.
Persons under the age of 18 in occupation of, or claiming a right to occupy, a dwelling house have a right to receive notice of the disclaimer. Service of the notice on those persons may, though, be effected by service on the parent or guardian of that person [note 30].
Where it is necessary to disclaim an interest in a solely owned freehold property (see paragraph 34.27), notice of the disclaimer should be served on the Crown Estate Commissioners at the following address:
16 New Burlington Place
Tel: 020 7851 5000
The reason for this is that on disclaimer of a freehold legal title vested solely in a bankrupt, the property passes at common law to the Crown and is a matter for the Crown Estate Commissioners (see paragraph 34.80 for further information on this).
Amended April 2010
Where there is a disclaimer of a solely owned freehold property the official receiver as liquidator or trustee must arrange for the disclaimer to be registered (this is known as “noting the lease”) with the Land Registry. Registration of the disclaimer is not necessary where the disclaimer was issued in respect of a jointly owned property as this has no effect on the legal title to the property – which would remain with the joint owner. See paragraphs 34.79 and 34.80 for more information of the effect of a disclaimer on freehold property.
To effect registration, the official receiver should complete a form AP1* (www1.landregistry.gov.uk/.../AP1.pdf) and send this to the Land Registry, along with an office copy of the disclaimer and a copy of the winding-up order or bankruptcy order certified as a true copy by the official receiver.
A covering letter seeking confirmation that the disclaimer will be noted should accompany the documents. It is likely that the Registrar will refrain from registering the disclaimer until the period allowed for applying for a vesting order has expired (see paragraph 34.87).
The procedure outlined above may also be followed in the very unlikely event that the official receiver, as liquidator, has property vested in him/her [note 31]. In such circumstances a copy of the court order vesting the property in the official receiver should also be sent to Land Registry.
* The official receiver need complete only sections 1-8 of the AP1 form. In section 4 the nature of the application should be completed as “application to note disclaimer of [lease/freehold/leasehold]”. The fee payable is on a sliding scale depending on the value of the property, as follows:
£0 - £100,000 = fee is £50
£100,001 - £200,000 = £70
£200,001 - £500,000 = £90
£500,001 - £1,000,000 = £130
£1,000,001 and over = £260
As outlined in paragraph 50.7 of Chapter 50 – Dealing with the Land Registry, certain leases are subject to compulsory registration at the land registry, whilst some others can be registered on a voluntary basis. If the official receiver is disclaiming a solely-held registered lease then the disclaimer should be registered with the Land Registry in line with the guidance at paragraph 12. This would not be necessary where the lease is held in the joint names of the insolvent and a third party (see paragraph 12 for an explanation).
Occasionally, (usually in connection with an application to determine a lease) the Land Registry may require a certificate to be provided in connection with the registration of a disclaimer.
If required, a suggested form of wording for the certificate required to ensure that a disclaimer is registered at the Land Registry (see paragraph 12) would be:
“I, [official receiver’s full name and address] certify:-
On [date of bankruptcy order] a bankruptcy order was made against [bankrupt’s name] in the [name of court]. I am trustee of the bankrupt’s estate.
The bankrupt is the registered proprietor of the land in title number [title number] and at the date of the bankruptcy order the bankrupt had a legal title to the property.
The bankrupt’s legal title to the property forms part of the bankrupt’s estate and has been vested in me under section 306 of the Insolvency Act 1986.
On [date] I disclaimed my interest in the above title pursuant to sections 315 and [317(leasehold)/318(dwelling house)] of the Insolvency Act 1986. Notice of the disclaimer was served pursuant to rule 6.179 of the Insolvency Rules 1986 on [date]. I am not aware of any application to the court for a vesting order pursuant to section 320 of the Insolvency Act 1986.
Signed: [official receiver] Date: [date]”
The official receiver is not limited to serving notice on those persons mentioned at paragraph 6. Notice may be served on any person where the official receiver considers this to be appropriate. An example of this may be where notice is served on the bankrupt in respect of a disclaimer of a right of action to avoid any continuation of the claim [note 32] [note 33] (see paragraph 34.26).
There is nothing in the legislation to say that disclaimers must be dealt with by Registrars or District Judges. The process may be delegated to court staff [note 34]. The court is not required to enter into any decision making process when dealing with a disclaimer, and the requirement to seal the notice of disclaimer is to demonstrate a formal acknowledgment of receipt by the court.