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F E Smith
F E Smith, Advocate
Category: Property Law
Satisfied Customers: 14089
Experience:  I have been practising for 30 years.
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I have a question about bankruptcy. My ex-partner and I

Customer Question

Hi, I have a question about bankruptcy. My ex-partner and I separated last year. I bought a piece of ground in 2005 and put it in both of our names. As I paid for it and always paid the bills, when we separated I asked him to put it back into my name. He was able to keep his work vehicle and two mobile homes that we owned at the time. Recently, someone has filled a bankruptcy petition against him and he has been declared bankrupt. Since separating I have built on the ground and I live in the building with my 4 children. I am concerned that the trustee will use my property against my ex-partners depts leaving me and my children homeless. Is this likely to be the case? Thanks
Submitted: 13 days ago.
Category: Property Law
Expert:  F E Smith replied 13 days ago.

Good afternoon. I will assist with your question - be aware this is an email not chat service therefore i maybe delayed in replying.

and you are not married?

who has made him declare bunkruptcy?

Customer: replied 13 days ago.
Hi, thanks. No we have never been married
Expert:  F E Smith replied 13 days ago.

Thank you. When was it put back into your sole name?

Can you prove that you paid for the house on yr own?

Customer: replied 13 days ago.
It was put soley into my name Nov 2018. I can proove that I paid for the ground in the first place and that I took a further loan to pay for the build of my house.
It was one of his clients who requested the order - he was a builder and grounds worker.
Expert:  F E Smith replied 12 days ago.

It was put into your sole name in 2018, then it’s a problem because the trustee in bankruptcy is going to look at this as an attempt for him to avoid his creditors getting their hands on the property to pay his debts.

Whilst I accept that he may owe you money, in respect of your previous dealings, the transfer of the property back to your sole name from joint is going to be seen to be treating you as a preferential creditor.

However if you can prove that you only transferred it to his sole name out of love and affection you may be able to escape the trustee in bankruptcy is clutches.

Even so, the trustee in bankruptcy would only have a claim on your partners equitable/financial share of the property, which, depending on the free equity/value in the property may or may not be very much.

The trustee in bankruptcy will try to claim half of the equity in the property and he may wish to rely on the case law which says that if two people own a property and there is no agreement to the contrary as to what happens when the property is eventually sold, it is split 50-50 and regardless therefore of the fact that your partner put nothing in, he gets 50 percent out.

Don’t blame me, I don’t make the law, I just regurgitate it. That’s the situation you got yourself in by transferring this property into joint names with your partner at the time even though he didn’t contribute to it.

The only good news is that the trustee in bankruptcy will usually negotiate a really good deal to relinquish his interest to a co-owner such as you.

Because you have dependent children, it’s unlikely that the trustee would be able to force a sale until the children reach 18 at least.

Can I clarify anything else for you?

 

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Best wishes.

 

FES