Full Description
Bona vacantia and escheat are ancient legal concepts which nevertheless have a vital role to play in modern legal practice. Practitioners will encounter these topics in a range of situations but most commonly when dealing with land once owned by a company in circumstances where the company has ceased to exist, and ownership of the property has seemingly been lost to the Crown or another similar entity such as a Royal Duchy. Such cases invariably raise difficult legal issues, often against the backdrop of urgent and high value instructions.
This new title provides a comprehensive and up-to-date reference for practitioners. Part One provides an overview of the legal history of bona vacantia and escheat, before giving a detailed analysis of the relevant modern law of bona vacantia, disclaimer and escheat. Part Two examines the various types of entity that are likely to be involved in bona vacantia and escheat matters. It also sets out the policies of the government and Crown bodies that practitioners are likely to encounter.
Part Three provides detailed and practical coverage of the types of court proceedings that practitioners may need to use in bona vacantia and escheat disputes. There is particular focus on situations involving companies being dissolved while still owning land on the basis that this is the kind of instruction that practitioners are most likely to encounter in their day-to-day practice. Finally, Part Four contains relevant statutory materials and a selection of precedents.
Contents
Preface
Table of Cases
Table of Statutes
Table of Statutory Instruments
Table of Conventions
PART ONE- THE HISTORICAL BACKGROUND TO BONA VACANTIA AND ESCHEAT , AND THEIR MODERN SCOPE (INCLUDING DISCLAIMER)
1 Introduction to Bona Vacantia and Escheat
What is bona vacantia?
What is escheat?
The modern scope of bona vacantia
The modern scope of escheat
The collecting authorities
The Treasury Solicitor as Crown nominee
The Solicitor for the Duchy of Lancaster
The Solicitor for the Duchy of Cornwall
Escheated realty
A brief legal history of bona vacantia
The justifications for bona vacantia
Bona vacantia's varying application to different types of property: personalty, chattels real and realty
Bona vacantia's application to equitable interests
Intestacy (total, or partial); the position prior to 1926
The Administration of Estates Act 1925
Failed private trusts and defunct societies
Dissolved domestic corporations
Dissolved overseas corporations
Other ancient royal prerogative rights: royal mines, treasure trove, wreck, royal fish and fowl, waifs and estrays, etc
2 The Modern Scope of Bona Vacantia and Escheat
Intestacy
Dissolved companies and corporations
United Kingdom companies
Overseas companies
Failed private trusts
Defunct private members clubs and unincorporated associations, etc
3 Disclaimer
Overview of disclaimer
What is disclaimer?
The nature of disclaimer
Species of disclaimer
Crown disclaimer
Disclaimer by a trustee in bankruptcy
Disclaimer by a liquidator
The procedure for Crown disclaimer
The form and procedure for Crown disclaimer
Requiring the Crown to make an election
Parties to whom the notice of disclaimer must be sent
Issues relevant to disclaimer by an insolvency office holder
Onerous property
Challenging a decision to disclaim
Disclaimer of a dwelling house by trustee in bankruptcy
The effect of a disclaimer by an office holder
Loss caused by a disclaimer by an office holder
The procedure for disclaimer by a trustee in bankruptcy/ liquidator
The right to require an office holder to make a disclaimer decision
Disclaimer and leasehold property
Additional protection for underlessees and mortgagees
The effect of disclaimer of a leasehold interest: general
The effect of disclaimer as between landlord and tenant
The effect of disclaimer on sub-tenants
Former tenants of disclaimed leases
Guarantors of the tenant's obligations
Mortgagees of the leasehold interest
The effect of disclaimer on tenants at will/licensees in occupation of the property
Disclaimer and companies
The effect of restoration of a company to the register
Protection for purchasers
Disclaimer and other familiar property law issues
Adverse possession
Prescription
Party walls
Disclaimer of property passing under a will or on intestacy
4 Escheat
Escheat - an overview
What is escheat?
Distinguishing between bona vacantia and escheat
When might - both today and historically - escheat occur?
Death of the freehold tenant intestate without heirs
Disclaimer by the freehold tenant's trustee in bankruptcy
Disclaimer by the freehold tenant's liquidator
Disclaimer by the Treasury Solicitor following a statutory vesting of the freehold as bona vacantia
When an overseas company which owned freehold land in England, Wales and Northern Ireland ceases to exist
Exercise by the Crown of a reserved right of re-entry following an infeudatory freehold grant
Where a settlement is created which includes an entail, the entailed interest determines, and the right of reverter is in the Crown
Conviction of the freehold tenant of a non-treason felony
Voluntary surrender to the King
The circumstances in which escheat is most commonly encountered in the 21st century
To whom does land escheat?
The concept of the lord and the feudal chain
The Crown and the Royal Duchies
Copyhold land
Is an escheat a transfer?
Does the fee simple estate survive escheat?
The general position
Does a fee simple survive disclaimer by trustee in bankruptcy?
Does a freehold held on trust survive?
Escheat is automatic and does not require an election by the Crown
Records of inquisition
Crown liabilities following escheat
The general position
The Crown's approach to accepting liabilities: not a guarantor of last resort
Subordinate interests and escheat
The position generally
Escheat and leases granted out of the former freehold title
Escheat and mortgages
Escheat and rentcharges
Escheat and statutory incumbrances
Leasehold land and escheat
Escheat and easements
PART TWO - ENTITIES COMMONLY ENCOUNTERED ON BONA VACANTIA AND ESCHEAT MATTERS AND RELEVANT GOVERNMENT AND CROWN POLICIES
5 Companies and the Law of Bona Vacantia and Escheat
Methods of dissolution of a Companies Act company
Winding up
Administration
Strike off by the Registrar
Strike off at the application of the company
The interface between dissolution and ownership of property
Property of a Companies Act company upon dissolution
Restoration of a Companies Act company
Administrative restoration
Court restoration
Dispositions of bona vacantia property
Overseas companies
The importance of local law advice
Land in England and Wales
The interrelationship between land in England and Wales and ownership by an overseas company
6 Individuals and the Law of Bona Vacantia and Escheat
The role of statute in intestacy today
Intestacy and no next of kin
Where there is a will
7 Other Entities and the Law of Bona Vacantia and Escheat
Other circumstances in which the law of bona vacantia and escheat might be encountered
Charge holders
Limited liability partnerships
Failed trusts
Statutory corporations
Registered societies (formerly known as Industrial and Provident Societies)
Friendly Societies
Charities
8 Policies of Bodies Relevant to Bona Vacantia and Escheat
The Bona Vacantia Division
How does the Bona Vacantia Division deal with property which becomes vested in it?
Disclaimer by the Bona Vacantia Division
Sale by the Bona Vacantia Division
Seeking to purchase bona vacantia from the Bona Vacantia Division
The Crown Estate
How does the Crown Estate deal with property which becomes vested in it?
The Crown's approach towards litigation
Sale by the Crown Estate
The Duchy of Lancaster and the Duchy of Cornwall
PART THREE - PRACTICAL APPLICATION OF THE LAW AND POLICIES RELEVANT TO BONA VACANTIA AND ESCHEAT INCLUDING COMMONLY ENCOUNTERED COURT PROCEEDINGS
9 Application of the Law and Process of Bona Vacantia and Escheat
Typical situations in which bona vacantia and escheat issues arise
Company estate owner dissolved
Limited liability partnerships
Individual estate owner
The failure of trusts
Legal proceedings
10 Restoration of a Company and Vesting Orders
Restoration of a company
Administrative restoration
Restoration by order of the court
Claim post-disclaimer by the Crown
Vesting orders under sections 1017 and 1018 of the Companies Act 2006
Proper claimant
Proper defendant
Forms/evidence/process
Terms of vesting order
Vesting orders following disclaimer by an office holder
Forms/evidence/process
11 Reacquisition of Property by Other Means
The most common claims where reacquisition of an estate is sought
Claim under section 44 of the Trustee Act 1925
The nature of section 44
Trusts and overseas companies
Proper claimant
Proper defendant
Forms/evidence/process
Claim under section 181 of the Law of Property Act 1925
Proper claimant
Proper defendant
Forms/evidence/process
Claim under section 3(5) of the Law of Property Act 1925
Proper claimant
Proper defendant
Forms/evidence/process
12 The Role of Case Law in Claims Such as These
13 Land Registration Matters
Land registration and overseas companies
Land registration and escheat
Escheat not abolished in respect of registered land
No need to complete an escheat by registration
The effect of first registration or registration on transfer
What happens to a registered fee simple title on escheat?
Can demesne land be registered?
Registration of other new infeudatory grants and incumbrances
Registration and Duchy land
14 Conclusion: A Practical Overview of Common Scenarios in which Claims Arise
Where a Companies Act company is dissolved
Where an overseas company is dissolved
Where the estate was sold before dissolution
Where the estate was owned by a natural person
Mortgagees
Non-court-based solutions
PART FOUR - APPENDICES
A1 Statutory Materials
Administration of Estates Act 1925
Companies Act 2006
Crown Estate Act 1961
Insolvency Act 1986
Law of Property Act 1925
Trustee Act 1925
Insolvency (England and Wales) Rules 2026 (SI 2016/1024)
A2 Example Precedents for Vesting Order under Sections 1017 and 1018 of the Companies Act 2006
Part 8 Claim Form
Details of Claim
Court Order
A3 Example Precedents for Vesting Order under Section 320 of the Insolvency Act 1986
Part 8 Claim Form
Details of Claim
Court Order
A4 Example Precedents for Claims Brought in the Alternative under Section 44 of the Trustee Act 1925, Section 3(5) of the Law of Property Act 1925 and Section 181 of the Law of Property Act 1925
Part 8 Claim Form
Details of Claim
Witness Statement in Support
Court Order
A5 Example Precedents for Declaratory Relief Sought by a Mortgagee Following Dissolution of a Mortgagor
Part 8 Claim Form
Details of Claim
Court Order
Index
