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Financial & Business Crime | England & Wales

Third-party property interests in POCA

Protecting a spouse’s, co-owner’s or other third party’s property interest when assets are considered in confiscation proceedings.

KEY ANSWER

The position in brief

A relative’s property does not become the defendant’s merely because they share a home or bank account. But a third party should not assume that an informal explanation will protect their interest. Establish what interest is claimed, how it arose and whether the court is being asked to decide its extent under section 10A POCA.

Legal issues

Section 10A permits the court, in appropriate circumstances, to determine the defendant’s interest in property likely to be used to satisfy an order. A person whom the court considers may hold an interest must have a reasonable opportunity to make representations. Such a determination can have conclusive consequences at enforcement, subject to statutory exceptions. Waiting until a sale is proposed may therefore be too late to address the issue effectively.

This guide concerns England and Wales.

For the wider service, see Proceeds of Crime (POCA). Related decisions are covered in Benefit and available amount in confiscation and Account forfeiture after an account freezing order.

Evidence that matters

For a home, gather the title, purchase file, deposit trail, mortgage history and any declaration of trust. For business property, identify whether the asset belongs to a company, partnership or individual. For money, trace the contributor, purpose and account movements. Registered ownership is important evidence, but the beneficial ownership question may require more.

Reasonable lines of enquiry

Separate a claimed ownership share from an unsecured debt owed by the defendant. Ask when the interest arose, whether documents were created contemporaneously and whether the alleged transfer is challenged as a tainted gift. A spouse’s claim to half the equity should be explained and evidenced rather than assumed from the marriage alone.

What happens next

Identify the procedural route before submitting material: confiscation, restraint and enforcement raise different issues. Ask to see the order and any directions affecting third-party representations. The response may require a witness statement, documentary exhibits and attendance at a hearing. The court may accept, reject or determine a different extent of interest from that claimed.

Immediate steps

Obtain independent advice promptly where your position differs from the defendant’s. Preserve acquisition records and notify your adviser of every hearing date. Do not transfer property to “protect” it or ask the defendant’s solicitor to advance inconsistent ownership cases.

What should you send us?

Send the relevant POCA orders, property and loan documents, bank transfer evidence, any trust agreement and a short chronology explaining your contribution and the interest you claim.

Legal information from Theodorous. The law and procedure can change and the application of the law depends on the facts. This guide is general information, not advice on your individual case.

HOW WE CAN HELP

What Theodorous can do

We can assess the claimed interest and the proper route for raising it, prepare an evidence chronology and identify conflicts requiring separate representation. Advice should address the practical effect on occupation, sale or access to funds as well as the ownership percentage.

FREQUENTLY ASKED QUESTIONS

Questions before your next step

Is joint ownership automatically a 50/50 split?

Do not assume that this resolves the issue. The form of ownership, acquisition evidence and any beneficial interest dispute require assessment.

Can I use the same solicitor as the defendant?

Only if professional conflict rules allow it. Separate advice may be necessary where ownership or the origin of funds is disputed.

Should I wait for enforcement?

No. Find out whether ownership is being determined earlier and comply with the applicable directions. Later challenges may face significant restrictions.

NEXT STEP

Discuss a third-party property interest

Tell us the next deadline and the documents you have received. Call 0843 636 7687 or email [email protected] to discuss the appropriate next step.

Discuss a third-party property interest