Trustees in bankruptcy and obtaining vacant possession—Garwood v Bolter

Trustees in bankruptcy and obtaining vacant possession—Garwood v Bolter

In what circumstances can a trustee in bankruptcy be allowed an application for vacant possession? Katherine Hallett of 13 Old Square Chambers comments on the decision in Garwood v Bolter [2015] EWHC 3619 (Ch) that clarifies what a trustee must do procedurally to satisfy the court before it will allow such an application.

Briefly, what was the background to the case?

The trustee applied for orders for sale with vacant possession in respect of three properties owned by the bankrupt. None of the properties was occupied by the bankrupt—the trustee had made extensive efforts to discover both the identities of the occupiers and the basis of their occupation.

The trustee did not discover the occupiers’ identities—he therefore issued this application against the bankrupt and ‘Persons Unknown’.

During the case, the identities of the occupiers became known. In addition, it was revealed that two of the three properties were occupied under tenancy agreements which the bankrupt had purported to grant after the bankruptcy order. These were not therefore binding on the trustee. The third property was occupied pursuant to an assured shorthold tenancy which apparently pre-dated the bankruptcy and was therefore prima facie binding on the trustee.

What were the issues that the judge had to decide?

HHJ Behrens (sitting as a judge of the High Court) had to determine on appeal whether the district judge at first instance had been correct to dismiss the trustee’s application for vacant possession.

There were two issues:

  • should the district judge have refused possession on the basis that she was not satisfied with service on the occupiers?
  • should the district judge have refused possession on the basis that the trustee should have brought separate possession proceedings against the occupiers?

Why did these issues arise in this case?

As to the service point, it was unclear how ‘Persons Unknown’ had originally been served

Related Articles:
Latest Articles:

Access this article and thousands of others like it free by subscribing to our blog.

Read full article

Already a subscriber? Login

About the author:

Stephen qualified as a solicitor in 2005 and joined the Restructuring and Insolvency team at Lexis®PSL in September 2014 from Shoosmiths LLP, where he was a senior associate in the restructuring and insolvency team.

Primarily focused on contentious and advisory corporate and personal insolvency work, Stephen’s experience includes acting for office-holders on a wide range of issues, including appointments, investigations and the recovery and realisation of assets (including antecedent transaction claims), and for creditors in respect of the impact on them of the insolvency of debtors and counterparties.