Q&As

What happens to a charge secured against a property when the borrower becomes subject to restraint or confiscation proceedings under the Proceeds of Crime Act 2002?

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Published on LexisPSL on 22/06/2016

The following Corporate Crime Q&A provides comprehensive and up to date legal information covering:

  • What happens to a charge secured against a property when the borrower becomes subject to restraint or confiscation proceedings under the Proceeds of Crime Act 2002?
  • Restraint and confiscation
  • Freezing orders

Restraint and confiscation

Secured third party interests in property held by a defendant in restraint and receivership proceedings benefit from limits placed on the court and receivers when exercising their powers under Proceeds of Crime Act 2002 (POCA 2002), s 69. POCA 2002, s 69(3)(a) specifically limits POCA 2002, s 69(2) so that the powers (making a restraint order, appointing a management or enforcement receiver and the exercise by a management receiver of his powers) are limited to enable third parties to recover the value of any interest held by him. Restraint and receivership orders will usually take effect over the whole of the property under POCA 2002, s 69(2)(c) notwithstanding any charge or interest in it owned by a third party. However, third parties effected by such orders have the ability to apply to vary the orders to enable them to exercise their rights in relation to property.

In respect of confiscation proceedings, the starting point to

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