Bankruptcy and Your Home

If you own (or jointly own) your home, mortgaged or outright, your interest in it forms part of your estate and may have to be sold to go towards paying debts.

If the property is completely in your name, or completely in your spouses name, typically 50% of the equity in a matrimonial home is available to the Bankruptcy Trustee.

Buying a property and putting it in your spouse’s name on the off-chance you may one day be made bankrupt does not protect it from the Trustee.

In the case where a property is jointly owned, the share owned by the parties not subject to bankruptcy proceeding can’t be used towards the bankruptcy. However, this does not stop the Trustee from forcing the sale of the property to get hold of your share.

A spouse, other relative or friend can buy your interest in the home from the controlling Trustee. This prevents the future sale of the property by the Trustee.

Common Misconceptions about Bankruptcy and Your Home.

“I put my home into my partners name years ago, it will be excluded from the Bankruptcy”
You’ll need to prove that your partner paid the full value at the time of the sale and has since paid the mortgage in full. You will also have to account for the money you received from the sale.

“I have a wife and small children, they can’t take away my house”.
They can and they will. If a spouse and/or dependant children are living at the property, it is possible for the sale in the bankruptcy to be delayed until after the end of the first year of bankruptcy. This allows for time for other housing arrangements to be made.

Stopping you Selling your Home.

The Trustee can register a caution at the Land Registry, preventing the home from being sold without their permission.

Under the Enterprise Act 2002 the Trustee has a maximum of three years to deal with a property or risk it reverting back to the Bankrupt. However, the three years will be extended if the sale is obstructed.

Charging Orders

If the Trustee does not or cannot presently sell the home, they may obtain a charging order. This is like securing the property against the debt. In which case, your interest in the property will be returned to you, but the legal charge over this it remains. The value of the charge is your percentage interest in the property. This sum must be paid from your share of the proceeds of sale of the property.

If a Charging Order is placed on the property, you will benefit from rises in the property’s value between that time and the time of the sale.

If no Charging Order is in place, your percentage interest in the will continue to belong to the Trustee, including any rise in the property value. Therefore even if the home is sold some time after discharge from bankruptcy, the increase in value will not go to you.