If a bankrupt owns, or is purchasing, a home which is in the bankrupt's name the trustee will normally sell the home and distribute any equity to the creditor. This does not apply to homes purchased with Defence Service Homes loans which are protected under the Defence Service Homes Act 1918 (Cth) and the Director will rarely give permission for the sale to take place.
When both joint owners of a home become bankrupt the same applies.
If only one joint owner becomes bankrupt the trustee ill become registered as a 'tenant in common' of the home with the non-bankrupt owner, or will lodge a caveat on the title to protect the bankrupt's interest. The registration of the trustee does not prevent the mortgagee selling the property if the mortgage payments fall into arrears. The jointly owned home may be sold in any of the following ways:
- the other owner has first option to buy, either for cash or by instalments, the bankrupt's interest (or share) in the home from the trustee.
- a joint owner who cannot afford to buy the bankrupt's share may agree with the trustee to sell the home. Both the trustee and the non-bankrupt joint owner usually receive equal shares of any money left over after the mortgages and expenses are paid depending on the tenancy.
- if the joint owner refuses to co-operate, the trustee can apply to the Supreme Court under the Law of Property Act 1936, for an order that the property be sold and the proceeds divided between them.
If the home was bought with, or substantially with compensation money for an injury it cannot be taken, see property a bankrupt can keep.
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The home : Last Revised: Wed Sep 28th 2005 |
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