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Insolvency Law

Expert guidance on all aspects of corporate and personal insolvency

Guildhall Chambers , 03 MAR 2015

Fred Perry (Holdings) Ltd v Genis Unrep. (2014)

Fred Perry (Holdings) Ltd v Genis Unrep. (2014)
(Master Price)

The significance of parties having registered ‘home rights’ when the court exercises its discretion under s 14 of the Trusts of Land and Appointment of Trustees Act 1996.

The Claimant (‘FPH’) had obtained judgment against the First Defendant (‘IG’) secured by charging orders over the First and Second Defendant’s family home (‘the Property’).

The Property was in the sole name of IG, however the Second Defendant (‘AG’) claimed a beneficial interest. AG had registered her ‘home rights’ not to be evicted or excluded from the property under the Family Law Act 1996 (‘FLA’) and had obtained a charge on IG’s interest. The couple’s children were also resident at the Property and attended a local specialist school.

The judge observed that when exercising his discretion under s 14 of the Trusts of Land and Appointment of Trustees Act 1996 (‘TOLATA’) the court would give regard to the factors enumerated at s 15(1) of TOLATA. However, authority suggested that the court should give precedence to the commercial interests of the creditors (Bank of Ireland Home Mortgages Ltd v Bell [2001] 2 All E.R. (Comm) 920).

Section 34(2) FLA provided that ‘home rights’ could be restricted or terminated if it was just and reasonable to do so. In deciding whether this was the case the court would have regard to the factors listed at s 33(6) FLA. These factors were different to the s 15(1) TOLATA factors and included the housing needs, financial resources and the likely effect of any order on the wellbeing of the parties or any relevant child.

The judge observed the tension between the competing criteria and also the absence of any authority on the issue. However, he also held that were he to give precedence to AG’s home rights then an anomaly would arise as AG would be treated differently to a spouse who did not have home rights. The judge then noted the importance of like cases being treated in the same way and held that he would make an order for sale.
Guildhall Chambers
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