Bona Vacantia and Escheat: Law and Practice

The authors of the book are all property barristers at Falcon Chambers, with direct experience of advising on bona vacantia and escheat matters and taking cases concerning them to court.

• PrefaceTable of CasesTable of StatutesTable of Statutory InstrumentsTable of ConventionsPART ONE- THE HISTORICAL BACKGROUND TO BONA VACANTIA AND ESCHEAT , AND THEIR MODERN SCOPE (INCLUDING DISCLAIMER)1        Introduction to Bona Vacantia and EscheatWhat is bona vacantia?What is escheat?The modern scope of bona vacantiaThe modern scope of escheatThe collecting authoritiesThe Treasury Solicitor as Crown nomineeThe Solicitor for the Duchy of LancasterThe Solicitor for the Duchy of CornwallEscheated realtyA brief legal history of bona vacantiaThe justifications for bona vacantiaBona vacantia’s varying application to different types of property: personalty, chattels real and realtyBona vacantia’s application to equitable interestsIntestacy (total, or partial); the position prior to 1926The Administration of Estates Act 1925Failed private trusts and defunct societiesDissolved domestic corporationsDissolved overseas corporationsOther ancient royal prerogative rights: royal mines, treasure trove, wreck, royal fish and fowl, waifs and estrays, etc2        The Modern Scope of Bona Vacantia and EscheatIntestacyDissolved companies and corporationsUnited Kingdom companiesOverseas companiesFailed private trustsDefunct private members clubs and unincorporated associations, etc3        DisclaimerOverview of disclaimerWhat is disclaimer?The nature of disclaimerSpecies of disclaimerCrown disclaimerDisclaimer by a trustee in bankruptcyDisclaimer by a liquidatorThe procedure for Crown disclaimerThe form and procedure for Crown disclaimerRequiring the Crown to make an electionParties to whom the notice of disclaimer must be sentIssues relevant to disclaimer by an insolvency office holderOnerous propertyChallenging a decision to disclaimDisclaimer of a dwelling house by trustee in bankruptcyThe effect of a disclaimer by an office holderLoss caused by a disclaimer by an office holderThe procedure for disclaimer by a trustee in bankruptcy/ liquidatorThe right to require an office holder to make a disclaimer decisionDisclaimer and leasehold propertyAdditional protection for underlessees and mortgageesThe effect of disclaimer of a leasehold interest: generalThe effect of disclaimer as between landlord and tenantThe effect of disclaimer on sub-tenantsFormer tenants of disclaimed leasesGuarantors of the tenant’s obligationsMortgagees of the leasehold interestThe effect of disclaimer on tenants at will/licensees in occupation of the propertyDisclaimer and companiesThe effect of restoration of a company to the registerProtection for purchasersDisclaimer and other familiar property law issuesAdverse possessionPrescriptionParty wallsDisclaimer of property passing under a will or on intestacy4        EscheatEscheat – an overviewWhat is escheat?Distinguishing between bona vacantia and escheatWhen might – both today and historically – escheat occur?Death of the freehold tenant intestate without heirsDisclaimer by the freehold tenant’s trustee in bankruptcyDisclaimer by the freehold tenant’s liquidatorDisclaimer by the Treasury Solicitor following a statutory vesting of the freehold as bona vacantiaWhen an overseas company which owned freehold land in England, Wales and Northern Ireland ceases to existExercise by the Crown of a reserved right of re-entry following an infeudatory freehold grantWhere a settlement is created which includes an entail, the entailed interest determines, and the right of reverter is in the CrownConviction of the freehold tenant of a non-treason felonyVoluntary surrender to the KingThe circumstances in which escheat is most commonly encountered in the 21st centuryTo whom does land escheat?The concept of the lord and the feudal chainThe Crown and the Royal DuchiesCopyhold landIs an escheat a transfer?Does the fee simple estate survive escheat?The general positionDoes 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 CrownRecords of inquisitionCrown liabilities following escheatThe general positionThe Crown’s approach to accepting liabilities: not a guarantor of last resortSubordinate interests and escheatThe position generallyEscheat and leases granted out of the former freehold titleEscheat and mortgagesEscheat and rentchargesEscheat and statutory incumbrancesLeasehold land and escheatEscheat and easementsPART TWO - ENTITIES COMMONLY ENCOUNTERED ON BONA VACANTIA AND ESCHEAT MATTERS AND RELEVANT GOVERNMENT AND CROWN POLICIES5        Companies and the Law of Bona Vacantia and EscheatMethods of dissolution of a Companies Act companyWinding upAdministrationStrike off by the RegistrarStrike off at the application of the companyThe interface between dissolution and ownership of propertyProperty of a Companies Act company upon dissolutionRestoration of a Companies Act companyAdministrative restorationCourt restorationDispositions of bona vacantia propertyOverseas companiesThe importance of local law adviceLand in England and WalesThe interrelationship between land in England and Wales and ownership by an overseas company6        Individuals and the Law of Bona Vacantia and EscheatThe role of statute in intestacy todayIntestacy and no next of kinWhere there is a will7        Other Entities and the Law of Bona Vacantia and EscheatOther circumstances in which the law of bona vacantia and escheat might be encounteredCharge holdersLimited liability partnershipsFailed trustsStatutory corporationsRegistered societies (formerly known as Industrial and Provident Societies)Friendly SocietiesCharities8        Policies of Bodies Relevant to Bona Vacantia and EscheatThe Bona Vacantia DivisionHow does the Bona Vacantia Division deal with property which becomes vested in it?Disclaimer by the Bona Vacantia DivisionSale by the Bona Vacantia DivisionSeeking to purchase bona vacantia from the Bona Vacantia DivisionThe Crown EstateHow does the Crown Estate deal with property which becomes vested in it?The Crown’s approach towards litigationSale by the Crown EstateThe Duchy of Lancaster and the Duchy of CornwallPART THREE - PRACTICAL APPLICATION OF THE LAW AND POLICIES RELEVANT TO BONA VACANTIA AND ESCHEAT INCLUDING COMMONLY ENCOUNTERED COURT PROCEEDINGS9        Application of the Law and Process of Bona Vacantia and EscheatTypical situations in which bona vacantia and escheat issues ariseCompany estate owner dissolvedLimited liability partnershipsIndividual estate ownerThe failure of trustsLegal proceedings10      Restoration of a Company and Vesting OrdersRestoration of a companyAdministrative restorationRestoration by order of the courtClaim post-disclaimer by the CrownVesting orders under sections 1017 and 1018 of the Companies Act 2006Proper claimantProper defendantForms/evidence/processTerms of vesting orderVesting orders following disclaimer by an office holderForms/evidence/process11       Reacquisition of Property by Other MeansThe most common claims where reacquisition of an estate is soughtClaim under section 44 of the Trustee Act 1925The nature of section 44Trusts and overseas companiesProper claimantProper defendantForms/evidence/processClaim under section 181 of the Law of Property Act 1925Proper claimantProper defendantForms/evidence/processClaim under section 3(5) of the Law of Property Act 1925Proper claimantProper defendantForms/evidence/process12      The Role of Case Law in Claims Such as These13      Land Registration MattersLand registration and overseas companiesLand registration and escheatEscheat not abolished in respect of registered landNo need to complete an escheat by registrationThe effect of first registration or registration on transferWhat happens to a registered fee simple title on escheat?Can demesne land be registered?Registration of other new infeudatory grants and incumbrancesRegistration and Duchy land14      Conclusion: A Practical Overview of Common Scenarios in which Claims AriseWhere a Companies Act company is dissolvedWhere an overseas company is dissolvedWhere the estate was sold before dissolutionWhere the estate was owned by a natural personMortgageesNon-court-based solutionsPART FOUR - APPENDICESA1      Statutory MaterialsAdministration of Estates Act 1925Companies Act 2006Crown Estate Act 1961Insolvency Act 1986Law of Property Act 1925Trustee Act 1925Insolvency (England and Wales) Rules 2026 (SI 2016/1024)A2      Example Precedents for Vesting Order under Sections 1017 and 1018 of the Companies Act 2006Part 8 Claim FormDetails of ClaimCourt OrderA3      Example Precedents for Vesting Order under Section 320 of the Insolvency Act 1986Part 8 Claim FormDetails of ClaimCourt OrderA4      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 1925Part 8 Claim FormDetails of ClaimWitness Statement in SupportCourt OrderA5      Example Precedents for Declaratory Relief Sought by a Mortgagee Following Dissolution of a MortgagorPart 8 Claim FormDetails of ClaimCourt OrderIndex