Where a receiver has applied to the court under section 61(1) of the Insolvency Act 1986 for authority to sell subjects free of a particular security, or diligence, a copy of the court’s authorisation must be submitted to the Keeper before the relevant security or diligence can be omitted from the title sheet. Sharp v Thomson: Keeper’s response 5.37  The House of Lords decision in the case of Sharp v Thomson¹⁰ prompted the Keeper to review his attitude to applications for registration involving sales by receivers. The Keeper recognises that a purchaser of heritage  from a receiver may be at risk of having his or her title  defeated by a person holding on  a previously delivered but unregistered conveyance. The Keeper also recognises that the risk may pass to him if he proceeds to register the purchaser’s title without exclusion of indemnity. The Keeper considers that the risk of a latent unregistered disposition surfacing once registration has been completed is too small to justify a policy of blanket indemnity exclusion for all sales by receivers. Accordingly, an application for registration of a conveyance by a receiver will not result in an exclusion of  indemnity  solely  because  of  the  risk  that  an  unregistered  disposition  may  come  to  light. Nevertheless the Keeper expects that a purchaser acting in good faith will make appropriate enquiries of the receiver. If the receiver’s response to those enquiries is less than satisfactory, or point to some difficulty or anomaly, the purchaser should seek the advice of the Keeper’s Pre-Registration Enquiries Section (see chapter 3) before proceeding to settle the transaction. Pre-Registration Enquiries will take a measured view of the circumstances and consider the risk to the Keeper’s indemnity. The above comments apply equally to applications for registration that involve sales by liquidators or trustees in sequestration. They also apply to any application for first registration where a conveyance by a receiver, a liquidator, or a trustee in sequestration is included in the progress of titles. Conveyance by company in liquidation 5.38  Where  subjects  are  being  conveyed  by  a  company  in  liquidation  the  Keeper  will  require  to examine evidence of the appointment of the liquidator. Where a company is in voluntary liquidation the resolution, passed by the company, to wind-up the company, will comprise the appropriate link in title. In cases of compulsory winding-up the court order should be submitted. Change of company name 5.39 Where a company transacting with property has changed its name since the original acquisition, the Keeper will require to examine a certified copy certificate of incorporation on change of name. Bankruptcy Conveyance by trustee in sequestration 5.40 Although a heritable proprietor who has been sequestrated remains infeft in the property, the trustee in sequestration becomes personally vest in the property as the debtor/bankrupt’s successor, by virtue of the act and warrant issued by the court confirming the trustee’s appointment or election. The Keeper will, therefore, require to examine the act and warrant should the trustee either complete title to or sell the bankrupt’s heritable estate. Realisation of bankrupt’s estate 5.41 Section 39 of the Bankruptcy (Scotland) Act 1985¹¹ (as amended) provides for the realisation of the bankrupt’s estate, including the sale by the trustee in the sequestration of the bankrupt’s heritable

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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