Decision of Ms. Justice Dunne of 25th July, 2011 On The Interaction Of The Registration of Title Act, 1964, And The Land Of Conveyancing Law Reform Act, 2009

Author:Ms Pamela O'Neill
Profession:Eversheds O'Donnell Sweeney
 
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Originally published July 2011

Decision of Ms. Justice Dunne of 25th July, 2011 on the interaction of the Registration of Title Act, 1964, and the Land of Conveyancing Law Reform Act, 2009

The decision of Justice Dunne has huge ramifications for lenders. The following is a synopsis of that decision and its practical effect. The judgment pertains to 4 separate cases involving three separate lenders. The decision deals with entitlement of the holder of a charge over registered land to obtain possession on foot of that charge. The position regarding holders of mortgages over unregistered land is entirely unaffected by the decision. Background to the Decision Section 62(7) of the Registration of Title Act, 1964, provided that the owner of a registered charge could apply to the Court for an Order for possession when repayment of the principal money secured by the charge had become due. This provision was repealed by Section 8 of the Land and Conveyancing Law Reform Act, 2009, which came into operation (save for Section 132 of the 2009 Act) on 1st December, 2009. For its part, the 2009 Act provides in Section 97(2) that a mortgagee may apply to Court for an order for possession of the mortgaged property. On such application the Court may, if it thinks fit, order that possession be granted to the applicant on such terms and conditions, if any, as it thinks fit. However, Section 96 of the 2009 Act makes clear that the power under Section 97(2) applies only in respect of a mortgage created by deed after 1st December, 2009. Arguments In brief, the Defendants argued that, as Section 62(7) of the 1964 Act had been repealed by the 2009 Act, it could not now be relied upon by the Plaintiffs to ground an application for possession. Furthermore, Section 97(2) of the 2009 Act only applied in respect of mortgages created by deed after 1st December, 2009. The combined effect of the foregoing, it was argued, was that the holder of a charge other than a mortgage created by deed after 1st December, 2009, had no statutory basis on which it could recover possession of the charged land. While accepting that Section 62(7) of the 1964 Act had been repealed, the Plaintiffs argued that its provisions had been saved by Section 27(1) and (2) of the Interpretation Act, 2005. In essence, the Plaintiffs argued that they had a "right" to apply for possession which had either "accrued" or been "acquired" prior to the coming into force of the 2009 Act on 1st...

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