Usually the most valuable asset in a bankrupt estate is the bankrupt’s home or other real property he or she owns. There are various Court processes which Trustees may be required to undertake when dealing with the following issues:
- A failure to produce a Certificate of Title for lodgement of a transmission application;
- Obtaining possession of a bankrupt’s property and getting the bankrupt (and other persons) out of the property (if necessary); and
- The sale of a co-owned property.
In circumstances where there is no mortgage and a title cannot be produced (where no e-title) to enable transmission application, an Originating Motion supported by an Affidavit may be required for production as section 104 of the Transfer of Land Act 1958 (Vic) is an internal procedure used by Land Use Victoria and not for the purposes of the Registrar of Titles compelling production of the title.
Proceedings to obtain orders are required if an agreement cannot be reached with a co-owner regarding the property with VCAT and the Federal Circuit and Family Court having jurisdiction in respect of co-ownership disputes.
Obtaining possession may require the assistance of the Sheriff with a Warrant of Possession in circumstances where orders for vacant possession are not complied with by those occupying the co-owned property.