Tynan v County Registrar for the County of Kilkenny and Start Mortgages Ltd

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 22 June 2011
• Neutral Citation: [2011] IEHC 250
• Docket Number: [No. 2497 P/2011]
• Court: High Court
• Date: 22 June 2011

[2011] IEHC 250

THE HIGH COURT

[No. 2497 P/2011]

Tynan v County Registrar for the County of Kilkenny & Start Mortgages Ltd

BETWEEN

EILEEN TYNAN

PLAINTIFF

AND

THE COUNTY REGISTRAR FOR THE COUNTY OF KILKENNY AND START MORTGAGES LIMITED

DEFENDANTS

REGISTRATION OF TITLE ACT 1964 S81

NATIONAL BANK v KEEGAN 1931 IR 344

REGISTRATION OF TITLE ACT 1964 S69

REGISTRATION OF TITLE ACT 1964 S72

REGISTRATION OF TITLE ACT 1964 S69(1)(Q)

REGISTRATION OF TITLE ACT 1964 S72(1)(J)

REGISTRATION OF TITLE ACT 1964 S52

REGISTRATION OF TITLE ACT 1964 S62(7)

FITZGERALD LAND REGISTRY PRACTICE 2ED 223

BANK OF IRELAND v SMYTH 1993 2 IR 102

RSC O.9 r9

RSC O.9 r14

ROYAL BANK OF SCOTLAND PLC v ETRIDGE (NO 2) 2001 3 WLR 1021

BARCLAYS BANK PLC v O'BRIEN 1992 3 WLR 593

DELANY EQUITY & LAW OF TRUSTS 4ED 686

DELANY EQUITY & LAW OF TRUSTS 4ED 694

AMERICAN CYANAMID v ETHICON 1975 1 AER 504

LAND LAW

Property

Interlocutory application - Mortgage - Order for possession - Right of residence - Equitable interest - Registered land - Transfer of mortgage - Failure to register burden - Independent legal advice - Service - Arguable case - Fair issue to be tried - Damages - Balance of convenience - Whether beneficial interest in mortgaged property - Whether plaintiff person in possession or in receipt of rents and profits - Whether deed of confirmation defective - Whether independent legal advice - Whether arguable case - Whether fair issue to be tried - Whether damages adequate remedy - National Bank v Keegan [1931] IR 344; Bank of Ireland v Smyth [1993] 2 IR 102; Royal Bank of Scotland plc v Etridge (No 2) [2001] 3 WLR 1021; Barclays Bank plc v O'Brien [1992] 3 WLR 593 and American Cyanamid v Ethicon [1975] 1 All ER 504 considered - Registration of Title Act 1964 (No 16), ss 62, 69, 72 and 81 - Rules of the Superior Courts 1986 (SI 15/1986), O 9, rr 9 and 14 - Application refused (2011/2497P - Laffoy J - 22/6/2011) [2011] IEHC 250

Tynan v Kilkenny County Registrar

Miss Justice Laffoy

1 2 1.1 On this application, the plaintiff seeks an injunction restraining the first defendant (the County Registrar) from evicting the plaintiff from her home being the premises known as "Rose Villa House" 71, Old Callan Road, Kilkenny (the premises) until these proceedings are heard and the final judgment given. The premises are the subject of an order for possession made on 31^st October, 2008 by the Court (MacMenamin J.) in proceedings (Record No. 2007/847SP) between the second defendant (the mortgagee) of the one part and Eileen Veronica Tynan (the mortgagor) of the other part (the special summons proceedings). The stay on execution granted on the making of that order having expired, the mortgagee is now anxious to obtain possession of the premises with a view to realising its security. On the hearing of the application counsel for the County Registrar informed the Court that the County Registrar would be bound by the order of the Court and was given leave to withdraw on that basis. Accordingly, the proponents on the hearing of the application were the plaintiff, who is the mother of the mortgagor, and the mortgagee.

2 3 1.2 The basis on which the plaintiff seeks interlocutory relief is reflected in the primary relief sought on the plenary summons, which issued on 16^th March, 2011. The plaintiff seeks a declaration that she enjoys a continuing right of residence and/or a right, personal in nature, to reside in the premises.

3 2 2.1 The plaintiff has lived with her family in the premises since 1974. Initially she and her husband, to whom she refers as her "ex-husband", were tenants in the premises on a tenancy from Kilkenny Borough Council (the Corporation). Subsequently in 1980 they purchased the freehold from the Corporation and became registered as owners of the premises on Folio 6532F County Kilkenny.

4 3 2.2 The plaintiff and her ex-husband separated in 1999. The plaintiff's evidence on affidavit is that, as a result of an order of the Court in proceedings for a judicial separation, her daughter, the mortgagor, was obliged to buy out her ex-husband's share of the premises, which had been their family home, as I understand it, in order to avoid the sale of the premises and a division of the proceeds of sale between the plaintiff and her ex-husband. In any event, what occurred was a transfer by the plaintiff and her ex-husband of the premises to the mortgagor in respect of which the mortgagor paid the plaintiff's ex-husband, her father, the sum of IR£30,000 for his interest in the premises and she also paid an outstanding sum of IR£3,941.66 due to the Corporation. The plaintiff received no money or consideration from the mortgagor at that time or at any other time for her interest in the premises. The transfer by the plaintiff and her ex-husband was subject to the consent of the Corporation. An application for consent was made by Smithwick, Solicitors, on their behalf on 24^th February, 2000. In that letter the nature of the transaction and its consequences were described as follows:

"The position here is that Patrick Tynan and his wife, Eileen Tynan have agreed subject to contract to transfer their interest in the property to their daughter, Veronica Tynan. Eileen Tynan will continue to reside in the property. Patrick Tynan will secure accommodation elsewhere."

5 By letter dated 28^th February, 2000, the Corporation consented to the sale to Veronica Tynan and also to a mortgage by Veronica Tynan in favour of First Active Plc. The plaintiff has averred that at the time of the transaction the solicitors acting for her and her ex-husband and the solicitors acting for the mortgagor "understood the situation and the reasons behind why we were engaging in such a transaction". She has averred to her own understanding and that of her daughter as follows:

"It was always my understanding, and Veronica's understanding, that the house was my home but registered in Veronica's name and that I could live there for the rest of my life."

6 4 2.3 In 2004, another daughter of the plaintiff, Helena, bought the premises from the mortgagor. The reason for that transaction is explained by the plaintiff as that the mortgagor had become ill and had fallen into arrears with the mortgage and Helena agreed to "take on the mortgage for a short period of time until Veronica could recover and to ensure that we could stay in the house". I assume that "we" means the plaintiff, the mortgagor and Helena. In fact, Helena obtained a loan from and created a new mortgage in favour of Permanent TSB. The consent of the Corporation was obtained in connection with the transactions in 2004. On the relevant application form, in response to a query in relation to dependants, if any, residing with the vendor, the following information was given:

7 "Mother aged 67".

8 In response to a query as to where the vendor and dependant proposed to live, if consent was given to the transfer, it was stated:

9 "Remain in house".

10 The consent issued on 7^th July, 2004 on the basis that the mortgagor would not seek to be re-housed by the Corporation in the future.

11 5 2.4 The transfer of the premises back to the mortgagor and the mortgagee's involvement with the premises occurred in 2005. The plaintiff has averred that by mid-2005 Helena wished to get married and needed to release the monies she had invested in the premises. The mortgagor agreed to buy out her interest. She applied to the mortgagee for a loan of €180,000, which was stated to be the purchase price on the loan application form. The estimated value of the premises was given as €250,000 on the loan application form. By way of explanation of the difference between the purchase price and the estimated value, the mortgagor stated on the loan application:

"This is my mother's home which is in the name of my sister Helena and now she is getting married and I wish to buy from her as my mother has lived here all her life and wants to continue living there as I do and had agreed to sell at €180k as it's Family home."

12 6 2.5 The mortgagee issued a loan offer to the mortgagor on 4^th November, 2005. A condition in the loan offer, referred to as condition 57, provided as follows:

"The Deed of Confirmation, which is attached to the Deed of Mortgage and Charge, must be signed by Eileen Tynan. The lender strongly recommends that Eileen Tynan obtain independent legal advice prior to the execution of these documents. Eileen Tynan must provide a letter from his (sic) advising Solicitor confirming that he/she has received independent legal advice, but that he/she has decided against taking such advice."

13 That condition, which is rather oddly worded, seems to be premised on the advice which the plaintiff would get, being that she should not execute the Deed of Confirmation. In any event, the plaintiff did go to an independent solicitor for legal advice. In her affidavit she has averred that on 5^th December, 2005 she attended the offices of a firm of solicitors in Kilkenny with the mortgagor. She went alone into an office with the solicitor who was advising her. A single document was presented to her to sign. She has averred that the independent legal advice she received before signing consisted of the observation and question: "This is important. Do you know what you are doing?", to which she replied: "Sure I have no choice". She then signed the document. Her evidence is that no further advice was given to her. The entire transaction lasted approximately four or five minutes. She has specifically averred that at no stage was it explained to her that she ran the risk of losing her right to reside in her home.

14 7 2.6 The original Deed of Confirmation was put before the Court. It is a three page separate document. It is not part of the Mortgage Deed which was subsequently executed by the mortgagor....