Bank of Ireland v Purcell

Judgment Date01 January 1990
Date01 January 1990
Docket Number[1987 No. 178Sp]
CourtSupreme Court
Bank of Ireland

Equitable mortgage - Advances made on foot of deposit of title deeds - Deposit made prior to Act coming into effect - Further advances - Whether consent of spouse required - Family Home Protection Act, 1976 (No. 27), ss. 2, 3(1).

The plaintiff held an equitable charge over the defendant's lands by virtue of the deposit of title deeds in 1975 to secure present and future advances. The said lands included the family home of the defendant and his wife since the passing of the Family Home Protection Act, 1976, within the meaning of the said Act. Further advances were made to the defendant on foot of the deposit of title deeds after the 1976 Act came into force but no consents to these advances were obtained from the defendant's wife. S. 3 of the 1976 Act requires a consent where there is a conveyance of an 'interest' in the family home. The Act defines interest as meaning "any estate, right, title or other interest, legal or equitable." It was accepted at all times that the defendant had notice at all material times that the said lands comprised the family home of the defendant. Held by Barron J. in making a declaration that no security was created in favour of the plaintiff over the family home of the defendant in respect of advances made after the date upon which the Act came into force, 1, all the advances made after the 1976 Act came into force required the consent of the defendant's wife since, although the bank obtained an estate in the lands, the word 'interest' in the 1976 Act is defined more widely than a reference to an estate and the fact that an estate had been conveyed need not prevent a subsequent transaction from conveying an 'interest' in the lands. 2. Future further advances are the conveyance of an interest in the lands for the purpose of s. 3 of the 1976 Act as each time there is a further advance the interest of the mortgagor in those lands is being altered and the value of the equity of redemption is also being altered. 3. As the plaintiff had notice that the lands were a family home for the purpose of the Act, the rights of the spouse are not subordinate to the right of the plaintiff and therefore the plaintiff should have obtained the consent of the spouse prior to making any further advances after the date upon which the Act came into force.

(H.C., S.C.)
Bank of Ireland

- Conveyance - Validity - Family home - Condition precedent - Prior written consent of other spouse...

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