Category Archives: Real Estate Litigation

Barter (Re) 2014 BCSC 528

In a recent decision of the Bankruptcy court of British Columbia, Registrar Master Young made a ruling regarding the title of a bankrupt’s property, and the non-exempt portion of the equity that a Trustee is entitled to realize on.

Under Section 71 of the BIA, the property of a bankrupt vests in the Trustee upon a declaration of bankruptcy. Further, Section 74 entitles a Trustee to register title or caution on this property, to claim interest.

I register these cautions and trustee’s interests for Trustee’s, and it is best to do them as soon as possible.

In this case, the Trustee did not register on title immediately, because he believed that there was no realizable equity in the home. He chose not to spend the money from the estate.

Yet, when the bankrupt’s wife was forced to declare bankruptcy as well, and chose a different trustee, that trustee chose to register an interest. She was then offered to buy the equity in the home that belonged to her, for $2,000. She did, and when the husband was made aware of this, he contacted his trustee.

The entire time, the husband had been trying to sell the home. He received an offer around the same time as his wife had bought her share of the equity. When he contacted the Trustee to ask about his wife, he told the Trustee about the offer. The trustee told him he could not sell the property, as it was not his to sell. He offered to sell the property/equity to the bankrupt, for $2,000.00 as well. The bankrupt bought it, and then proceeded to counter offer the sale, which was turned down. The house was ultimately sold for a shortfall on the mortgage.

The bankrupt then asked for his discharge, and asked for the $2,000.00 back from the Trustee.

The court ruled that the Trustee’s conduct fell below the standard, and that the Trustee had to return the funds. The trustee should have explained what the bankrupt was buying.  That there was potential for no return, and all of this should have been explained at the beginning of the bankruptcy.

The bankrupt was then granted an absolute discharge.

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Property issues… How I can get the property that I am owed!

 

I wrote a blog posting a while back about ex-wives, and what happens to division of property.

There is a ‘family’ law case that came out last year on joint-tenancy, intention, and right of survivor – Hansen Estate v Hansen, 2012 ONCA 112

In that case, a man and his wife were getting divorced, and he had drawn up a new will, with all of his assets going to his kids from a previous marriage, but before he could sever the joint tenancy, he died! So the JT was still effective, therefore giving full title to his ex-wife (from separation). His kids claimed that the father intended to sever, and create a tenancy in common, and gave evidence to that effect. The Court of Appeal agreed.

This case is interesting from an insolvency and partition standpoint. If a person goes bankrupt, and they are a joint tenant, then there is a different process to when there is a tenancy in common, and it’s simply their portion of the house. Same thing if a lawsuit is against a person, and they lose, the writ would different – and the procedure.

Of course if you die, then the intention needs to be interpreted.

Very interesting…but this reminds you that if you are separating, divorced, worried that the person you co-own your property with is going to go bankrupt or file a proposal, or is involved in a lawsuit, sever the interest. 

Come talk to me if you want to discuss real estate issues!