If the official receiver as trustee claims any land or charge owned by the bankrupt as after-acquired property he/she should seek to protect his/her interest. To protect solely or jointly owned property a Form J restriction against dealings should be registered without delay (see paragraph 50.70).
HM Land Registry Form RX1 should be used to lodge a Form J restriction against dealings in a property, accompanied by :-
In the case of jointly owned property the official receiver should also register a Form A restriction (see paragraph 50.37).
The official receiver should then seek the early appointment of an insolvency practitioner to deal with the realisation of the asset.
Notes: [s307] [HM Land Registry Form RX1] [ASTCAA] [s307(3), r6.200(2)]
Under the LRR2003, rule 168(1), the official receiver as trustee may be registered as proprietor of solely owned land or charge(s) in place of the bankrupt. The application must be made on Land Registry Form AP1. The official receiver must provide the Chief Land Registrar with an office copy of the bankruptcy order, a certificate signed by the official receiver stating that the land or charge is comprised in the bankrupt’s estate and the appropriate fee (see http://www.landreg.gov.uk/).Notes: [LRR2003, r168(1)] [HM Land Registry Form AP1]
When a bankruptcy petition or a bankruptcy order is registered at the LCD, the LCD provides the LR Bankruptcy Unit, based at the Nottingham (East) Land Registry, with details of the bankruptcy proceedings and a list of title numbers which may be affected. In the light of all available information, the LR then has to decide whether the debtor, the subject of the bankruptcy proceedings, is the same person as the registered proprietor of the land or of any charges on the titles which have been revealed. If it appears that the debtor is the registered proprietor then an appropriate entry is made on the register of the title affected. If it is clear that the debtor is not the registered proprietor then no action is taken. The registered proprietor is informed of the entry that has been made. Where the entry is made in respect of the land and there is a registered charge which secures further advances, then the chargee is notified of the entry.
Where the LR cannot determine whether the debtor is the registered proprietor an enquiry is made of the registered proprietor at his/her address for service as to whether he/she is the person referred to in the bankruptcy proceedings. If the registered proprietor signs the statement that he/she is not the person referred to then no action is taken. If he/she confirms on the statement that he/she is the debtor then the entry is made. If the registered proprietor fails to respond within the time allowed by the LR then a further enquiry form is sent out. If there is still no response then, usually, an entry is made.
Where the official receiver obtains details of a bankruptcy entry made by the LR against a person’s title to land or a charge and that person is not affected by the bankruptcy proceedings, the official receiver should advise that person to contact the LR immediately. If the entry was made recently then the LR will remove it upon the person signing and returning a disclaimer (supplied by the LR) stating that he/she was not the subject of the bankruptcy proceedings. If the entry was made some years ago then the LR may require a statutory declaration to the same effect.
Because discharge does not re-vest property in the former bankrupt, it does not entitle him/her to have any bankruptcy entries at the LCD cancelled.
The official receiver may be contacted by a former bankrupt in the period between his automatic discharge and the 5 year automatic vacation of the Land Charges entry, because the LCD shows that the individual is still subject to the bankruptcy order. Where the former bankrupt seeks to acquire property or re-mortgage property after his/her discharge he/she may experience difficulties, e.g. in obtaining a mortgage.
If the official receiver receives an enquiry in the period outlined above he/she should draw the former bankrupt’s attention to the provisions of Rule 6.220, which states that if the bankrupt is discharged from the proceedings the court will, on the application of the discharged bankrupt, issue a certificate of discharge. Any certificate of discharge obtained from the court should be sufficient to satisfy the other parties to a transaction that the individual has been discharged from bankruptcy.
Where an individual is made bankrupt on a petition presented on or after 1 April 2004 and he/she has an interest in a dwelling-house which is the sole or principal residence of the bankrupt, bankrupt’s spouse/civil partner or former spouse/civil partner, the official receiver should have regard to the guidance in Chapter 31.3, Part 3.
Notes: [r6.220] [s283A]
Sometimes a discharged bankrupt may apply to the court, under section1(6) of the Land Charges Act 1972, for an order for the registration of the bankruptcy petition and the bankruptcy order to be vacated. Upon receipt of a court order and the appropriate fee the LCD will vacate the entries. Unlike an order annulling a bankruptcy order such an order does not re-vest the property in the discharged bankrupt. Any land or charge (whether registered or unregistered), which has vested in the trustee, will remain so vested. Therefore a bankruptcy notice or bankruptcy restriction will not be removed from a registered title if such an order is lodged.Notes: [Land Charges Act 1972, s1(6), s5, s6]
Where the bankrupt’s interest in a dwelling-house which falls within s283A of the Insolvency Act 1986 re-vests in the bankrupt, the official receiver is required to make an application to the chief land registrar to amend the register(s). (For further information see Chapter 31.3, paragraph 31.3.89)