In this recent blog post I explained why I’m not a fan of imposing on a contract party an obligation that it doesn’t have control over. Rather than engage in that sort of indirect and counterintuitive risk allocation, I’d rather make my risk allocation explicit. One way to do that is by providing for indemnification.
Friday January 14 2011
THE National Asset Management Agency has four legal ways to overturn property transfers — including transfers by developers to spouses, children and other third parties — that it believes were aimed at defrauding current or future creditors. …
If a developer is bankrupt, transfers in the two years leading up to the bankruptcy can be set aside. Transfers in the previous five years can also be set aside in a bankruptcy unless a developer can prove that he was solvent at the time he transferred or gifted the asset.
If property was transferred before 2009, NAMA can use the 1634 Conveyancing Act Ireland which allows property conveyances and other transactions to be declared void if they are made for the purpose of delaying, hindering or defrauding creditors. If property was transferred after December 1, 2009, the 2009 Land and Conveyancing Reform Act allows for transfers to be set aside if there was an intention to defraud a creditor.
Finally, the NAMA Act itself contains a miscellaneous provision that gives the toxic loans agency powers to void transfers effected by debtors and those who provided loan guarantees, including personal guarantees.