LAND AND CONVEYANCING LAW REFORM ACT 2009
AN ACT TO PROVIDE FOR THE REFORM AND MODERNISATION OF LAND LAW AND CONVEYANCING, TO REPEAL ENACTMENTS THAT ARE OBSOLETE, UNNECESSARY OR OF NO BENEFIT IN MODERN CIRCUMSTANCES, TO PROVIDE FOR THE VARIATION OF TRUSTS, TO MODERNISE THE LAW RELATING TO LIS PENDENS, TO AMEND THE REGISTRATION OF DEEDS AND TITLE ACTS 1964 AND 2006 AND CERTAIN OTHER ENACTMENTS AND FOR RELATED MATTERS.
[21st July, 2009]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
PART 1
Preliminary and General
Short title.
1.— This Act may be cited as the Land and Conveyancing Law Reform Act 2009.
Commencement.
2.— This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes and different provisions.
Interpretation generally.
3.— In this Act, unless the context otherwise requires—
“ Act of 1957 ” means the Statute of Limitations 1957;
“ Act of 1963 ” means the Companies Act 1963;
“ Act of 1964 ” means the Registration of Title Act 1964 ;
“ Act of 1965 ” means the Succession Act 1965 ;
“Act of 1976” means the Family Home Protection Act 1976 ;
“Act of 1988” means the Bankruptcy Act 1988 ;
“Act of 1989” means the Building Societies Act 1989 ;
“Act of 1995” means the Family Law Act 1995 ;
“Act of 1996” means the Family Law (Divorce) Act 1996 ;
“Act of 2000” means the Planning and Development Act 2000 ;
“Act of 2005” means the Interpretation Act 2005 ;
“Act of 2006” means the Registration of Deeds and Title Act 2006 ;
“assent” has the meaning given to it by section 53 of the Act of 1965;
“consent” includes agreement, licence and permission;
“conveyance” includes an appointment, assent, assignment, charge, disclaimer, lease, mortgage, release, surrender, transfer, vesting certificate, vesting declaration, vesting order and every other assurance by way of instrument except a will; and “convey” shall be read accordingly;
“ the court ” means—
(a) the High Court, or
(b) the Circuit Court when exercising the jurisdiction conferred on it by the Third Schedule to the Courts (Supplemental Provisions) Act 1961;
“covenant” includes an agreement, a condition, reservation and stipulation;
“deed” has the meaning given to it by section 64 (2);
“development” has the meaning given to it by section 3 of the Act of 2000;
“development plan” has the meaning given to it by section 3(1) of the Act of 2000;
“disposition” includes a conveyance and a devise, bequest or appointment of property by will and “ dispose” shall be read accordingly;
“exempted development” has the meaning given to it by section 4 of the Act of 2000;
“fee farm grant” means any—
(a) grant of a fee simple, or
(b) lease for ever or in perpetuity,
reserving or charging a perpetual rent, whether or not the relationship of landlord and tenant is created between the grantor and grantee, and includes a sub-fee farm grant;
“freehold covenant” has the meaning given to it by section 48 ;
“ freehold estate ” has the meaning given to it by section 11 (2);
“housing loan” has the meaning given to it by section 2 (1) of the Consumer Credit Act 1995 , as substituted by section 33 of, and Part 12 of Schedule 3 to, the Central Bank and Financial Services Authority of Ireland Act 2004 and “housing loan mortgage” means a mortgage to secure a housing loan;
“incumbrance” includes an annuity, charge, lien, mortgage, portion and trust for securing an annual or capital sum; and “incumbrancer” shall be read accordingly and includes every person entitled to the benefit of an incumbrance or to require its payment or discharge;
“instrument” includes a deed, will, or other document in writing, and information in electronic or other non-legible form which is capable of being converted into such a document, but not a statutory provision;
“judgment mortgage” means a mortgage registered by a creditor under section 116 ;
“land” includes—
(a) any estate or interest in or over land, whether corporeal or incorporeal,
(b) mines, minerals and other substances in the substratum below the surface, whether or not owned in horizontal, vertical or other layers apart from the surface of the land,
(c) land covered by water,
(d) buildings or structures of any kind on land and any part of them, whether the division is made horizontally, vertically or in any other way,
(e) the airspace above the surface of land or above any building or structure on land which is capable of being or was previously occupied by a building or structure and any part of such airspace, whether the division is made horizontally, vertically or in any other way,
(f) any part of land;
“ Land Registry ” has the meaning given to it by section 7 of the Act of 1964;
“ landlord ” means the person, including a sublandlord, entitled to the legal estate immediately superior to a tenancy;
“ lease ” as a noun means an instrument creating a tenancy; and as a verb means the granting of a tenancy by an instrument;
“ legal estate ” has the meaning given to it by section 11 (1);
“ legal interest ” has the meaning given to it by section 11 (4);
“ lessee ” means the person, including a sublessee, in whom a tenancy created by a lease is vested;
“ lessor ” means the person, including a sublessor, entitled to the legal estate immediately superior to a tenancy created by a lease;
“ Minister ” means the Minister for Justice, Equality and Law Reform;
“ mortgage ” includes any charge or lien on any property for securing money or money’s worth;
“ mortgagee ” includes any person having the benefit of a charge or lien and any person deriving title to the mortgage under the original mortgagee;
“ mortgagor ” includes any person deriving title to the mortgaged property under the original mortgagor or entitled to redeem the mortgage;
“ notice ” includes constructive notice;
“ personal representative ” means the executor or executrix or the administrator or administratrix for the time being of a deceased person;
“ planning permission ” means permission required under Part III of the Act of 2000;
“ possession ” includes the receipt of, or the right to receive, rent and profits, if any;
“ prescribed ” means prescribed by regulations made under section 5 ;
“ property ” means any real or personal property or any part or combination of such property;
“Property Registration Authority” has the meaning given to it by section 9 of the Act of 2006;
“purchaser” means an assignee, chargeant, grantee, lessee, mortgagee or other person who acquires land for valuable consideration; and “purchase” shall be read accordingly;
“ registered land ” has the meaning given to it by section 3(1) of the Act of 1964;
“Registry of Deeds” has the meaning given to it by section 33 of the Act of 2006;
“ rent ” includes a rent payable under a tenancy or a rentcharge, or other payment in money or money’s worth or any other consideration, reserved or issuing out of or charged on land, but does not include interest;
“ rentcharge ” means any annual or periodic sum charged on or issuing out of land, except—
(a) a rent payable under a tenancy, and
(b) interest;
“ right of entry ” means a right to take possession of land or of its income and to retain that possession or income until some obligation is performed;
“ right of re – entry ” means a right to forfeit the legal owner’s estate in the land;
“ strict settlement” has the meaning given to it by section 18 (1)(a);
“ subtenancy ” includes a sub-subtenancy; and a “ subtenant ” shall be read accordingly;
“ tenancy ” means the estate or interest which arises from the relationship of landlord and tenant however it is created but does not include a tenancy at will or at sufferance;
“ tenant ” means the person, including a subtenant, in whom a tenancy is vested;
“ trust corporation ” has the meaning given to it by section 30(4) of the Act of 1965;
“ trust of land ” has the meaning given to it by section 18 (1);
“ unregistered land ” has the meaning given to it by section 3(1) of the Act of 1964;
“ valuable consideration ” does not include marriage or a nominal consideration in money;
“ will ” includes codicil.
Service of notices.
[CA 1881, s. 67]
4.— (1) A notice authorised or required to be given or served by or under this Act shall, subject to subsection (2), be addressed to the person concerned by name and may be given to or served on the person in one of the following ways:
(a) by delivering it to the person; or
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address; or
(c) by sending it by post in a prepaid letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address; or
(d) where the notice relates to a building with which the person is associated, and it appears that no person is in actual occupation of the building, by affixing it in a conspicuous position on the outside of the building or the property containing the building; or
(e) if the person concerned has agreed to service of notices by means of an electronic communication (within the meaning given to it by section 2 of the Electronic Commerce Act 2000) to that person (being an addressee within the meaning given to it by that section) and provided that there is a facility to confirm receipt of electronic mail and that such receipt has been confirmed, then by that means; or
(f) by sending it by means of a facsimile machine to a device or facility for the reception of facsimiles located at the address at which the person ordinarily resides or carries on business or, if an address for the service of notices has been furnished by the person, that address, provided that the sender’s facsimile machine generates a message confirming successful transmission of the total number of pages of the notice; or
(g) by any other means that may be prescribed.
(2) Where the notice concerned is to be served on or given to a person who is the owner, landlord, tenant or occupier of a building and the name of the person cannot be ascertained by reasonable inquiry it may be addressed to the person at that building by using the words “the owner”, “the landlord”, “the tenant” or “the occupier” or other like description, as the case may require.
(3) For the purposes of this section, a company shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.
(4) Where a notice required or authorised to be served or given by or under this Act is served or given on behalf of a person, the notice shall be deemed to be served or given by that person.
(5) A person shall not, at any time during the period of 3 months after the notice is affixed under subsection (1)(d), remove, damage or deface the notice without lawful authority.
(6) A person who knowingly contravenes subsection (5) is guilty of an offence.PART 10
Chapter 1
Creation of mortgages
Legal mortgages.
89.— (1) A legal mortgage of land may only be created by a charge by deed and such a charge, unless the context requires otherwise, is referred to in this Part as a “mortgage”; and “mortgagor” and “mortgagee” shall be read accordingly.
(2) Subject to subsection (3), from the commencement of this Chapter—
(a) any instrument which would, but for the provisions of this section, convey a legal estate or interest in land by way of mortgage, or
(b) any other transaction which under any instrument would operate, but for the provisions of this section, as a mortgage by conveyance of a legal estate or interest in land,
does not create a legal mortgage.
(3) From the commencement of this Chapter, any transaction which under any statutory provision would, but for the provisions of this section, operate as a mortgage by conveyance of a legal estate or interest in land operates as if it were a mortgage under this Part.
(4) From the commencement of this Chapter, any power, whenever created, to mortgage or lend money on mortgage of a legal estate or interest in land operates as a power to mortgage the legal estate or interest by a mortgage under this Part or to lend money on the security of such a mortgage.
(5) This Part applies to both unregistered and registered land.
(6) Nothing in this section affects the creation of equitable mortgages of land.
(7) From the commencement of this Chapter, it is not possible to create a Welsh mortgage and any purported creation of such a mortgage is void.
(8) For the purposes of subsection (7), a “Welsh mortgage” includes any transaction under which a grantee or chargee of land is entitled to hold possession, and take rents and profits in lieu of interest on a loan, of land without the grantor or chargor being under a personal obligation to repay the loan, but being entitled to redeem.
Position of mortgagor and mortgagee.
90.— (1) Subject to this Part, where a mortgage is created after the commencement of this Chapter—
(a) the mortgagor has the same powers and rights and the same protection at law and in equity as the mortgagor would have been entitled to,
(b) the mortgagee has the same obligations, powers and rights as the mortgagee would have had,
if the mortgagee’s security had been created by a conveyance before that commencement of the legal estate or interest in the land of the mortgagor.
(2) Without prejudice to the generality of subsection (1)(b) and subject to subsection (3), a first mortgagee has the same right to possession of documents of title as such mortgagee would have had if the security had been created by a conveyance before the commencement of this Chapter.
(3) Notwithstanding any stipulation to the contrary, a mortgagee who retains possession or control of documents of title relating to the mortgaged land is, in addition to being subject to the mortgagor’s rights under section 91 , responsible for their safe custody as if an undertaking for this were given under section 84 .
Powers and rights of mortgagor
Documents of title.
91.— (1) Subject to subsection (2), a mortgagor, as long as the right to redeem exists, may from time to time, at reasonable times, inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged property in the possession or power of the mortgagee.
[CA 1881, s. 16]
(2) Rights under subsection (1) are exercisable—
(a) on the request of the mortgagor, and
(b) on payment by the mortgagor of the mortgagee’s reasonable costs and expenses in relation to the exercise.
(3) Subsection (1) has effect notwithstanding any stipulation to the contrary.
Restriction on consolidation of certain mortgages.
92.— Notwithstanding any stipulation to the contrary, a mortgagor is entitled to redeem any housing loan mortgage without having to pay any money due under any other mortgage with the same mortgagee, whether that other mortgage is of the same or other property.
[CA 1881, s. 17]
Transfer in lieu of discharge.
93.— (1) A mortgagor who is entitled to redeem may, subject to compliance with the terms on which the mortgagor would be entitled to require a discharge, require the mortgagee, instead of discharging the mortgage, to assign the mortgage debt and transfer the mortgage to any third person, as the mortgagor directs, and on the mortgagor so directing, the mortgagee is bound to assign and transfer accordingly.
[CA 1881, s. 15][CA 1882, s. 12]
(2) The rights conferred by subsection (1) belong to and may be enforced by each incumbrancer or the mortgagor notwithstanding any intermediate incumbrance, but a requisition of an incumbrancer prevails over a requisition of the mortgagor and, as between incumbrancers, a requisition of a prior incumbrancer prevails over a requisition of a subsequent incumbrancer.
(3) This section—
(a) does not apply in the case of a mortgagee being or having been in possession,
(b) applies notwithstanding any stipulation to the contrary.
Court order for sale.
94.— (1) This section applies to any action brought by a mortgagor for—
(a) redemption, or
(b) sale, or
(c) the raising and payment in any manner of the mortgage debt, or
(d) any combination of these in the alternative.
(2) In any action to which this section applies the court may, if it thinks fit, direct a sale of the mortgaged property on such terms as it thinks fit.
(3) Without prejudice to the generality of the court’s discretion under subsection (2), it may—
(a) allow any time for redemption or payment of the mortgage debt,
(b) require lodgment in court of a sum to meet the expenses of a sale and to secure a performance of its terms,
(c) give directions as to costs and require the giving of security for costs,
(d) direct a sale without previously determining priorities of incumbrances,
(e) give the conduct of the sale to a particular party,
(f) make a vesting order conveying the mortgaged property to a purchaser or appoint a person to make such a conveyance.
(4) Except in the case of a housing loan mortgage, this section takes effect subject to the terms of the mortgage.
Advances on joint account.
95.— (1) Where—
[CA 1881, s. 61]
(a) money advanced or owing under a mortgage, or any part of it, is expressed to be advanced by or owing to two or more persons out of money, or as money, belonging to them on a joint account, or
(b) such a mortgage is made to two or more persons jointly and not in shares,
the mortgage debt, or other money or money’s worth for the time being due to those persons, shall, as between them and the mortgagor, be deemed to belong to them on a joint account.
(2) The receipt in writing of—
(a) the survivors or last survivor of those persons, or
(b) the personal representative of the last survivor,
is a complete discharge for all money or money’s worth for the time being due, notwithstanding any notice to the payer of a severance of such joint account.
(3) This section takes effect subject to the terms of the mortgage.
(4) In this section “mortgage” includes an obligation for payment of money and a transfer of a mortgage or of such an obligation; and “mortgagor” shall be read accordingly.
Obligations, powers and rights of mortgagee
Powers and rights generally.
96.— (1) Subject to this Part, the powers and rights of a mortgagee under sections 97 to 111 —
(a) apply to any mortgage created by deed after the commencement of this Chapter,
(b) vest, subject to section 62 of the Act of 1964, as soon as the mortgage is created,
(c) do not become exercisable unless their exercise is for the purpose of protecting the mortgaged property or realising the mortgagee’s security,
(d) in relation to the mortgaged property, apply to any part of it.
(2) A mortgagee’s right of foreclosure is abolished.
(3) The provisions relating to the powers and rights conferred by this Chapter apply to any housing loan mortgage notwithstanding any stipulation to the contrary and notwithstanding any powers and rights expressly conferred under such a mortgage, but in relation to any other mortgage, except where this Part provides to the contrary, take effect subject to the terms of the mortgage.
Taking possession.
97.— (1) Subject to section 98 , a mortgagee shall not take possession of the mortgaged property without a court order granted under this section, unless the mortgagor consents in writing to such taking not more than 7 days prior to such taking.
(2) A mortgagee may apply to the court for an order for possession of the mortgaged property and 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.
Abandoned property.
98.— (1) Where a mortgagee has reasonable grounds for believing that—
(a) the mortgagor has abandoned the mortgaged property, and
(b) urgent steps are necessary to prevent deterioration of, or damage to, the property or entry on it by trespassers or other unauthorised persons,
the mortgagee may apply to the District Court, or any court already seised of any application or proceedings relating to the mortgaged property, for an order authorising the mortgagee to take possession of the property.
(2) On such an application the court may make an order authorising the mortgagee to take possession of the property on such terms and conditions as the court thinks fit, notwithstanding that the mortgagor dissents or does not appear.
(3) Without prejudice to the generality of subsection (2), an order under this section may specify—
(a) the period during which the mortgagee may retain possession of the mortgaged property,
(b) works which may be carried out by the mortgagee for the purpose of—
(i) protecting the mortgaged property, or
(ii) preparing it for sale in exercise of the mortgagee’s power under section 100 ,
(c) costs and expenses incurred by the mortgagee which may be added to the mortgage debt.
(4) The mortgagee is not liable to account strictly to the mortgagor during a period of possession under an order under this section.
Mortgagee in possession.
99.— (1) Subject to the terms of any order under section 97 or section 98 , a mortgagee in possession (or after the mortgagee has appointed a receiver and so long as the receiver acts, the receiver) shall take steps within a reasonable time to exercise the power to—
(a) sell the mortgaged property under section 100 , or
(b) if it is not appropriate to sell, lease the property under section 112 and use the rent and any other income received from the lessee to reduce the mortgage debt, including interest accrued or accruing.
(2) Section 34 of the Act of 1957 does not apply to a mortgagee who takes possession of land under a court order under section 97 or section 98 .
Power of sale.
100.— (1) Subject to subsection (3) and sections 101 to 107 , a mortgagee or any other person for the time being entitled to receive, and give a discharge for, the mortgage debt may sell or concur with any other person in selling the mortgaged property provided—
[CA 1881, ss. 19(1)(i), 20, 21(4), 21(6) and (7)]
[CA 1911, s. 5(2)]
(a) following service of notice on the mortgagor requiring payment of the mortgage debt, default has been made in payment of that debt, or part of it, for 3 months after such service, or
(b) some interest under the mortgage or, in the case of a mortgage debt payable by instalments, some instalment representing interest or part interest and part capital is in arrears and unpaid for 2 months after becoming due, or
(c) there has been a breach by the mortgagor, or some person concurring in the mortgage, of some other provision contained in the mortgage or any statutory provision, including this Act, other than a covenant for payment of the mortgage debt or interest,
and provided in each such case 28 days’ notice in the prescribed form has been served on the mortgagor warning of the possibility of such sale.
(2) The power of sale shall not become exercisable without a court order granted under subsection (3), unless the mortgagor consents in writing to such exercise not more than 7 days prior to such exercise.
(3) At any time after expiration of the 28 days’ notice given under subsection (1), a mortgagee may apply to the court for an order authorising exercise of the power of sale and on such application the court may, if it thinks fit, grant such authorisation to the applicant on such terms and conditions, if any, as it thinks fit.
(4) An application under subsection (3) may be made with an application under section 97 (2) and, in such case, both may be heard together.
(5) A mortgagee is not answerable for any involuntary loss resulting from the exercise or execution of the power of sale under this Chapter, of any trust connected with it or of any power or provision contained in the mortgage.
(6) Once the power of sale becomes exercisable, the person entitled to exercise it may demand and recover from any person, other than a person having in the mortgaged property an estate or interest in priority to the mortgage, all deeds and documents relating to the property, or its title, which a purchaser under the power of sale would be entitled to demand and recover.
Applications under sections 97 and 100.
101.— (1) Upon an application for an order under, and without prejudice to the generality of, sections 97 (2) and 100 (3), where it appears to the court that the mortgagor is likely to be able within a reasonable period to pay any arrears, including interest, due under the mortgage or to remedy any other breach of obligation arising under it, the court may—
(a) adjourn the proceedings, or
(b) on making an order, or at any time before enforcement or implementation of such an order—
(i) stay the enforcement or implementation, or
(ii) postpone the date for delivery of possession to the mortgagee, or
(iii) suspend the order,
for such period or periods as it thinks reasonable and, if an order is suspended, the court may subsequently revive it.
(2) Any adjournment, stay, postponement or suspension under subsection (1) may be made subject to such terms and conditions with regard to payment by the mortgagor of any sum secured by the mortgage or remedying of any breach of obligation as the court thinks fit.
(3) The court may revoke or vary any term or condition imposed under subsection (2).
(4) Subject to subsection (5), an application under section 97 (2) or section 100 (3) may be made to the High Court.
(5) Where an application under section 97 (2) or section 100 (3) concerns property which is subject to a housing loan mortgage the Circuit Court shall have exclusive jurisdiction to deal with the application and the application shall not be made to the High Court.
(6) The jurisdiction of the Circuit Court to hear and determine applications under sections 97 (2) and 100 (3) concerning property which is subject to a housing loan mortgage shall be exercised by the judge of the circuit where the property or any part of it is situated.
(7) Nothing in this section affects the jurisdiction of the court under sections 7 and 8 of the Act of 1976.
Incidental powers.
102.— Incidental to the power of sale are the powers to—
[CA 1881, s. 19(1)(i)][CA 1911, s. 4]
(a) sell the mortgaged property—
(i) subject to prior charges or not,
(ii) either together or in lots,
(iii) by public auction, tender or private contract,
(iv) subject to such conditions respecting title, evidence of title, or other matter as the mortgagee or other person selling thinks fit,
(b) rescind any contract for sale and resell,
(c) impose or reserve or make binding by covenant or otherwise, on the sold part of the mortgaged land, or on the unsold part, any restriction or reservation with respect to building on or other user of land, or with respect to mines and minerals, for the purpose of their more beneficial working, or with respect to any other matter,
(d) sell the mortgaged land, or all or any mines and minerals apart from the surface, with or without—
(i) any easement, right or privilege connected with building or other purposes on the sold part of the mortgaged land or the unsold part,
(ii) an exception or reservation of all or any of the mines and minerals in the mortgaged land and with or without a grant, reservation or imposition of powers of working, wayleaves, rights of way, rights of water and drainage and other powers, easements, rights and privileges for or connected with mining purposes, in relation to or on the sold part of the mortgaged land or the unsold part,
(iii) covenants by the purchaser to expend money on the land sold.
Obligations on selling.
103.— (1) In the exercise of the power of sale conferred by this Chapter or any express power of sale, the mortgagee, or any receiver or other person appointed by the mortgagee, shall, notwithstanding any stipulation to the contrary in the mortgage, ensure as far as is reasonably practicable that the mortgaged property is sold at the best price reasonably obtainable.
(2) Within 28 days after completion of the sale, the mortgagee shall serve a notice in the prescribed form on the mortgagor containing information relating to the sale.
(3) A mortgagee who, without reasonable cause, is in breach of the obligation imposed by subsection (2) is guilty of an offence.
(4) Nothing in this section affects the operation of any rule of law relating to the duty of a mortgagee to account to a mortgagor.
(5) This section does not apply to a building society within the meaning of the Act of 1989 or a receiver appointed under the Companies Acts.
(6) In subsection (2) “mortgagor” includes a person last known to the mortgagee to be the mortgagor, but does not include a person to whom, without the knowledge of the mortgagee, any of the rights or liabilities of the mortgagor under the mortgage have been assigned.
Conveyance on sale.
104.— (1) A mortgagee exercising the power of sale conferred by this Chapter, or an express power of sale, has power to convey the property in accordance with subsection (2)—
[CA 1881, s. 21(1)]
(a) freed from all estates, interests and rights in respect of which the mortgage has priority,
(b) subject to all estates, interests and rights which have priority to the mortgage.
(2) Subject to subsections (3)(b) and (4), the conveyance—
(a) vests the estate or interest which has been mortgaged in the purchaser,
(b) extinguishes the mortgage, but without prejudice to any personal liability of the mortgagor not discharged out of the proceeds of sale,
(c) vests any fixtures or personal property included in the mortgage and the sale in the purchaser.
(3) This section—
(a) applies to a sale by a sub-mortgagee so as to enable the sub-mortgagee to convey the head-mortgagor’s property in the same manner as the mortgagee,
(b) does not apply to a mortgage of part only of a tenancy unless any rent which is reserved and any tenant’s covenants have been apportioned as regards the property mortgaged.
(4) Where the mortgaged property comprises registered land, the conveyance is subject to section 51 of the Act of 1964.
Protection of purchasers.
105.— (1) Where a conveyance is made in professed exercise of the power of sale conferred by this Chapter, the title of the purchaser is not impeachable on the ground that—
[CA 1881, s. 21(2)][CA 1911, s. 5(1)]
(a) no case had arisen to authorise the sale, or
(b) due notice had not been given, or
(c) the power was otherwise improperly exercised,
and a purchaser is not, either before or on conveyance, required to see or inquire whether the power is properly exercised.
(2) Any person who suffers loss as a consequence of an unauthorised or improper exercise of the power of sale has a remedy in damages against the person exercising the power.
Mortgagee’s receipts.
106.— (1) Subject to subsection (2), the receipt in writing of a mortgagee is a conclusive discharge for any money arising under the power of sale conferred by this Chapter, or for any money or securities comprised in the mortgage, or arising under it, and a person paying or transferring the same to the mortgagee is not required to inquire whether any money remains due under the mortgage.
[CA 1881, s. 22)]
(2) Subsection (1) does not apply where the purchaser has actual knowledge of an impropriety or irregularity in the exercise of the power of sale or knowingly participates in such an exercise.
(3) Subject to section 107 (5), money received by a mortgagee under the mortgage or from the proceeds of securities comprised in it shall be applied as section 107 requires as regards money arising from a sale under the power of sale conferred by this Chapter.
Application of proceeds of sale.
107.— (1) Money received by the mortgagee which arises from the sale of mortgaged property shall be applied in the following order—
[CA 1881, s. 21(3)]
(a) in discharge of prior incumbrances, if any, to which the sale was not made subject or payment into court of a sum to meet any such prior incumbrances,
(b) in payment of all charges, costs and expenses properly incurred by the mortgagee as incident to the sale or any attempted sale or otherwise,
(c) in discharge of the mortgage debt, interest and costs, and other money, if any, due under the mortgage.
(2) Any residue of the money so received shall be held on trust by the mortgagee to be paid to the person who would, but for the sale, be the mortgagee secured on the property sold next in priority after the mortgagee selling, or is otherwise authorised to give receipts for the money so received, or, if there is no such person, the mortgagor.
(3) Where, in accordance with subsection (2), the mortgagee gives effect to the trust of the residue by paying it to a subsequent mortgagee, the latter shall apply it in accordance with subsections (1)(c) and (2) and similar obligations attach to each subsequent mortgagee who receives any of the residue.
(4) Any mortgagee who so gives effect to the trust is discharged from any further obligation with respect to the residue.
(5) For the purposes of the application of subsection (1)(b) to money received under section 106 (3), charges, costs and expenses payable include those properly incurred in recovering and receiving the money or securities, and in conversion of securities into money, instead of those incident to the sale.
Appointment of receiver.
108.— (1) Where—
[CA 1881, ss. 19(1)(iii), 24(1)—(7)]
(a) following service of notice on the mortgagor requiring payment of the mortgage debt, default has been made in payment of that debt, or part of it, for 3 months after such service, or
(b) some interest under the mortgage or, in the case of a mortgage debt payable by instalments, some instalment representing interest or part interest and part capital is in arrears and unpaid for 2 months after becoming due, or
(c) there has been a breach by the mortgagor, or some person concurring in the mortgage, of some other provision contained in the mortgage or any statutory provision, including this Act, other than a covenant for payment of the mortgage debt or interest,
the mortgagee or any other person for the time being entitled to receive, and give a discharge for, the mortgage debt, may appoint, by writing, such person as the mortgagee or that other person thinks fit to be a receiver of—
(i) the income of the mortgaged property, or
(ii) if the mortgaged property comprises an interest in income, or a rentcharge or other annual or other periodical sum, that property.
(2) A receiver appointed under subsection (1) is the agent of the mortgagor, who is solely responsible for the receiver’s acts or defaults, unless the mortgage provides otherwise.
(3) The receiver may—
(a) demand and recover all the income to which the appointment relates, by action or otherwise, in the name either of the mortgagor or mortgagee, to the full extent of the estate or interest which the mortgagor could dispose of,
(b) give effectual receipts accordingly for such income,
(c) exercise any powers delegated by the mortgagee or other person to the receiver.
(4) Any power delegated to the receiver shall be exercised in accordance with this Chapter.
(5) A person paying money to the receiver is not required to inquire whether the receiver is authorised to act.
(6) The receiver may be removed, and a new receiver may be appointed, by the mortgagee or the other person in writing.
(7) The receiver may retain out of any money received, for remuneration and in satisfaction of all costs incurred as receiver, a commission at the prescribed rate.
(8) The receiver shall, if so directed in writing by the mortgagee, insure to the extent, if any, to which the mortgagee might have insured and keep insured against loss or damage by fire, flood, storm, tempest or other perils commonly covered by a policy of comprehensive insurance, out of the money received, any property comprised in the mortgage, whether affixed to land or not, which is of an insurable nature.
Application of money received.
109.— (1) Subject to section 110 (4), the receiver shall apply all money received in the following order—
[CA 1881, s. 24(8)]
(a) in discharge of all rates, rents, taxes and other outgoings affecting the mortgaged property,
(b) in discharge of all annual sums or other payments, and the interest on all principal sums, which have priority to the mortgage under which the receiver is appointed,
(c) in payment of the receiver’s commission,
(d) in payment of premiums on insurance, if any, payable under this Chapter or the mortgage,
(e) in defraying the cost of repairs as directed in writing by the mortgagee,
(f) in payment of interest accruing due in respect of any principal sum due under the mortgage,
(g) in or towards discharge of the principal sum, if so directed in writing by the mortgagee.
(2) The residue (if any) of any money so received after making the payments specified in subsection (1) shall be paid by the receiver to the person who, but for the possession of the receiver, would have been entitled to receive that money or who is otherwise entitled to the mortgaged property.
Insurance.
110.— (1) A mortgagee may insure and keep insured any building, effects or other property of an insurable nature, whether affixed to the land or not, which forms part of the mortgaged property.
[CA 1881, ss. 19(1)(ii), 23]
(2) The insurance shall be for the full reinstatement cost of repairing any loss or damage arising from fire, flood, storm, tempest or other perils commonly covered by a policy of comprehensive insurance.
(3) The mortgagee may give a good discharge for any money payable under any such insurance, but, subject to subsection (4), so much of such money as exceeds the mortgage debt shall be dealt with by the mortgagee as if it were the proceeds of a sale of the mortgaged property.
(4) The mortgagee may require any money received under such or other insurance of the mortgaged property to be applied—
(a) by the mortgagor in making good loss or damage covered by the insurance, or
(b) in or towards the discharge of the mortgage debt.
Future advances.
111.— (1) Where a mortgage is expressed to be created on any land for the purpose of securing future advances (whether with or without present advances), the mortgagee is entitled, in priority to any subsequent mortgage, to the payment of any sum due in respect of any such future advances, except any advances which may have been made after the date of, and with express notice in writing of, the subsequent mortgage.
(2) In subsection (1) “future advances” includes sums from time to time due on a current account and all sums which by agreement or in the course of business between the parties are considered to be advances on the security of the mortgage.
(3) Save in regard to the making of such future advances the right to tack in any form is abolished, but without prejudice to any priority acquired by tacking before the commencement of this Chapter.
(4) This section—
(a) applies to mortgages made before or after the commencement of this Chapter,
(b) does not apply to registered land.
Leases and surrenders of leases
Leasing powers.
112.— (1) A mortgagor of land, while in possession, may, as against every other incumbrancer, lease the land with the consent in writing of the mortgagee, which consent shall not be unreasonably withheld.
[CA 1881, s. 18][CA 1911, s. 3]
(2) A lease made without such consent is voidable by a mortgagee who establishes that—
(a) the lessee had actual knowledge of the mortgage at the time of the granting of the lease, and
(b) the granting had prejudiced the mortgagee.
(3) A mortgagee of land while in possession or, after the mortgagee has appointed a receiver and so long as the receiver acts, the receiver, may, as against all prior incumbrancers, if any, and the mortgagor, lease the land provided—
(a) it is for the purpose of—
(i) preserving the value of the land, or
(ii) protection of the mortgagee’s security, or
(iii) raising income to pay interest due under the mortgage or otherwise reduce the debt,
or
(b) it is otherwise an appropriate use of the land pending its sale, or
(c) the mortgagor consents in writing, or
(d) the court in any action relating to the mortgaged land makes an order permitting such lease.
(4) In this section “ mortgagor” does not include an incumbrancer deriving title from or under the original mortgagor.
(5) The power of leasing conferred by this section applies only to mortgages created after the commencement of this Part.
Exercise of leasing powers.
113.— (1) A lease to be granted under section 112 shall—
(a) reserve the best rent which can reasonably be obtained, taking into account any premium or other capital sum paid by the lessee and other relevant circumstances, and
(b) be otherwise granted on the best terms that can reasonably be obtained and accord with good commercial practice,
and execution of the lease by the lessor shall be sufficient evidence of execution and delivery of the lease.
(2) A purported lease which fails to comply with subsection (1) is void.
(3) A duplicate of a lease granted in accordance with subsection (1) shall be executed by the lessee and delivered to the lessor.
(4) In the case of a lease by the mortgagor, the mortgagor shall, within one month after making the lease, deliver to the mortgagee or, where there are more than one, the mortgagee first in priority, a copy of the lease duly executed by the lessee.
(5) Failure by the mortgagor to comply with subsection (4) does not affect the validity of the lease.
(6) Where a premium or other capital sum is paid by the lessee and the lease is granted by—
(a) the mortgagor, it, or, where it exceeds the mortgage debt, so much of it as is required for the purpose, shall be applied in or towards discharge of that debt, whether or not the date for redemption has arrived,
(b) the mortgagee, it shall be applied in accordance with section 107 as if it comprised the proceeds of a sale.
Surrenders.
114.— (1) Subject to subsection (2), a mortgagor or mortgagee in possession (or after the mortgagee has appointed a receiver and so long as the receiver acts, the receiver) may accept a surrender of a lease previously granted under section 112 or as authorised by the terms of the mortgage, whether the surrender relates to the whole or part only of the land leased.
[CA 1911, s. 3]
(2) Subsection (1) applies only where the surrender of the previous lease is for the purpose of granting a new lease under section 112 or as authorised by the terms of the mortgage.
(3) On such a surrender—
(a) the term of the new lease shall not be less than the unexpired term which would have existed under the surrendered lease if it not been surrendered,
(b) the rent reserved by the new lease shall not be less than the rent which would have been payable under the surrendered lease if it had not been surrendered,
(c) where part only of the land has been surrendered—
(i) the rent reserved by the new lease shall not be less than is required to make the aggregate rents payable under the remaining lease and new lease not less than the rent payable under the surrendered lease if no partial surrender had been accepted, and
(ii) any other modifications of the original lease shall comply with section 113 .
(4) A purported acceptance of a surrender which fails to comply with subsection (3) is void.
(5) Where a surrender involves payment of a premium or consideration other than the agreement to accept surrender, the surrender is void unless, in the case of a surrender—
(a) to the mortgagor, the consent of incumbrancers, or
(b) to a second or subsequent mortgagee, the consent of any prior incumbrancer,
is obtained.
LAND AND CONVEYANCING LAW REFORM ACT 2013
An Act to provide that certain statutory provisions apply to mortgages of a particular class notwithstanding the repeal and amendment of those statutory provisions by the Land and Conveyancing Law Reform Act 2009 , to provide for the adjournment of legal proceedings in certain cases and to provide for related matters. [24th July, 2013]
Be it enacted by the Oireachtas as follows:
Application of certain statutory provisions
1. (1) This section applies to a mortgage created prior to 1 December 2009.
(2) As respects a mortgage to which this section applies, the statutory provisions apply and may be invoked or exercised by any person as if those provisions had not been repealed by section 8(3) and Schedule 2 of the Act of 2009.
(3) As respects a mortgage to which this section applies the amended provisions apply and may be invoked or exercised by any person as if those provisions had not been amended by section 8(1) and Schedule 1 of the Act of 2009.
(4) Subsections (1) to (3) are without prejudice to any right or entitlement which a person may otherwise have to rely on the statutory provisions or the amended provisions.
(5) This section does not apply to proceedings initiated before the coming into operation of this section.
(6) In this section—
“Act of 1964” means the Registration of Title Act 1964 ;
“Act of 2009” means the Land and Conveyancing Law Reform Act 2009 ;
“amended provisions” means section 62(2) and (6) of the Act of 1964;
“mortgage” has the same meaning as it has in the Conveyancing Act 1881 ;
“statutory provisions” means sections 2 and 18 to 24 of the Conveyancing Act 1881 , sections 3 , 4 and 5 of the Conveyancing Act 1911 and section 62(3), (7) and (8) of the Act of 1964.
Adjournment of proceedings to facilitate making of proposal for Personal Insolvency Arrangement
2. (1) This section applies to land which is the principal private residence of—
(a) the mortgagor of the land concerned, or
(b) a person without whose consent a conveyance of that land would be void by reason of—
(i) the Family Home Protection Act 1976 , or
(ii) the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 .
(2) In any proceedings brought by a mortgagee seeking an order for possession of land to which the mortgage relates and which land is land to which this section applies, the court, without prejudice to any other power which a court may have to adjourn proceedings, may—
(a) of its own motion, if it considers it appropriate to do so,
(b) on application being made to the court by a relevant person and, having regard to the matters specified in subsection (3), if it considers it appropriate to do so,
adjourn the proceedings for a period not exceeding 2 months to enable the relevant person—
(i) to consult with a personal insolvency practitioner with a view to the making of a proposal for a Personal Insolvency Arrangement, and
(ii) where appropriate, to instruct the personal insolvency practitioner to make a proposal for a Personal Insolvency Arrangement under the Act of 2012.
(3) The court in considering an application under subsection (2)(b) shall have regard to such matters as it considers appropriate and in particular shall have regard to the following:
(a) whether the mortgagor has participated in any process relating to mortgage arrears operated by the mortgagee concerned which has been approved or required by the Central Bank of Ireland and which process relates to the land the subject of the mortgage;
(b) whether the mortgagor has made any payments to the mortgagee in respect of monies advanced on foot of or secured by the mortgage in the 12 months immediately preceding the application and, if so, the amount of any such payments, the number and frequency of such payments, and the proportion which the amounts paid bear to the amount of any regular payments which the mortgagor was required to make under the terms of the mortgage or any associated loan agreement;
(c) whether the proceedings have been adjourned on any previous occasion at the request of the mortgagor, and, if so, the number of any such adjournments and the period of such adjournments and the reasons for such adjournments;
(d) the conduct of the parties to the mortgage in any attempt to find a resolution to the issue of dealing with arrears of payments due on foot of the mortgage; and
(e) whether, having regard to the circumstances of the case, the application for an adjournment appears to the court to be primarily for the purpose of delaying the progress of the proceedings.
(4) On the expiry of any period of adjournment granted under subsection (2), the court may grant a further adjournment of the proceedings concerned where it considers that significant progress has been made in the preparation of a proposal for a Personal Insolvency Arrangement.
(5) Where the court adjourns proceedings under this section, the court may, where it considers it appropriate to do so, direct that the proceedings stand adjourned to another venue within the same circuit of the Circuit Court.
(6) This section applies as respects mortgages created before or after the coming into operation of Part 10 of the Land and Conveyancing Law Reform Act 2009 .
(7) In this section and section 3 —
“Act of 2012” means the Personal Insolvency Act 2012 ;
“conveyance” has the same meaning as it has in the Family Home Protection Act 1976 ;
“mortgage” means a deed of mortgage and includes a charge;
“mortgagee” includes a person deriving title from a mortgagee and a receiver appointed by the mortgagee;
“Personal Insolvency Arrangement” has the same meaning as it has in the Act of 2012;
“personal insolvency practitioner” has the same meaning as it has in the Act of 2012;
“relevant person” means a person—
(a) who is a party to the proceedings referred to in subsection (2), and
(b) who is a person who may, under the provisions of the Act of 2012, make a proposal for a Personal Insolvency Arrangement.
Proceedings relating to certain mortgages to be brought in Circuit Court
3. (1) This section applies to land which is the principal private residence of—
(a) the mortgagor of the land concerned, or
(b) a person without whose consent a conveyance of that land would be void by reason of—
(i) the Family Home Protection Act 1976 , or
(ii) the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ,
and the mortgage concerned was created prior to 1 December 2009.
(2) Subject to subsection (4), proceedings brought by a mortgagee seeking an order for possession of land to which the mortgage relates and which land is land to which this section applies shall be brought in the Circuit Court.
(3) The jurisdiction of the Circuit Court to hear and determine proceedings referred to in subsection (2) where the land concerned is land to which this section applies shall be exercised by the judge of the circuit where the land or any part of it is situated.
(4) Subsection (2) does not preclude a person initiating proceedings in the High Court where other proceedings relating to the enforcement of the mortgagee’s rights under the mortgage concerned have been commenced in that court prior to the coming into operation of this section where those other proceedings have not been determined.
Provision in respect of certain proceedings
4. (1) Where after the coming into operation of this section a mortgagee commences proceedings seeking possession of land in which they rely upon the statutory provisions or the amended provisions, the proceedings shall be deemed to be commenced within time for the purposes of section 9 of the Civil Liability Act 1961 where the conditions specified in subsection (2) are met.
(2) The conditions referred to in subsection (1) are that—
(a) prior to the coming into operation of this section the mortgagee had commenced proceedings seeking possession of land relying on the statutory provisions or the amended provisions,
(b) the proceedings concerned were commenced within the time limit applicable for the purposes of section 9 (2) of the Civil Liability Act 1961 ,
(c) the proceedings concerned were not determined before the coming into operation of this section,
(d) the mortgage concerned was created prior to 1 December 2009,
(e) the land the subject of the proceedings referred to in subsection (1) is the same land or a part of the same land as the land the subject of the proceedings referred to in paragraph (a).
(3) Subsection (1) shall only apply to proceedings issued within 6 months from the coming into operation of this section.
(4) In this section—
“Act of 2009” means the Land and Conveyancing Law Reform Act 2009 ;
“amended provisions” means section 62(2) and (6) of the Act of 1964 as those provisions stood immediately prior to the coming into operation of section 8(1) and Schedule 1 of the Act of 2009;
“mortgage” has the same meaning as it has in the Conveyancing Act 1881 ;
“mortgagee” includes a person deriving title from a mortgagee and a receiver appointed by a mortgagee;
“statutory provisions” means sections 2 and 18 to 24 of the Conveyancing Act 1881 , sections 3 , 4 and 5 of the Conveyancing Act 1911 and section 62(3), (7) and (8) of the Act of 1964.
Short title and commencement
5. (1) This Act may be cited as the Land and Conveyancing Law Reform Act 2013.
(2) Sections 2 and 3 come into operation on such day or days as the Minister for Justice and Equality may by order or orders appoint and different days may be so appointed for different purposes or provisions.
S.I. No. 655/2010 –
Land and Conveyancing Law Reform Act 2009 (Section 108) Regulations 2010.
I, DERMOT AHERN, Minister for Justice and Law Reform, in exercise of the powers conferred on me by sections 5 and 108 (7) of the Land and Conveyancing Law Reform Act 2009 (No. 27 of 2009) and the Justice, Equality and Law Reform (Alteration of Name of Department and Title of Minister) Order 2010 ( S.I. No. 216 of 2010 ), make the following regulations:
1. These Regulations may be cited as the Land and Conveyancing Law Reform Act 2009 (Section 108) Regulations 2010.
2. These Regulations shall come into operation on 30 December 2010.
3. The rate of commission that a receiver appointed under subsection (1) of section 108 of the Land and Conveyancing Law Reform Act 2009 (No. 27 of 2009) may retain out of any money received, for remuneration and in satisfaction of all costs incurred as receiver, prescribed for the purposes of subsection (7) of that section is a rate not exceeding five per cent of the gross amount of any money received as is specified in his or her appointment or, if no rate is so specified, then a rate of five per cent of that gross amount.
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GIVEN under my Official Seal,
30 December 2010.
DERMOT AHERN,
Minister for Justice and Law Reform.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
Section 108 of the Land and Conveyancing Law Reform Act 2009 provides for the mortgagee’s statutory power to appoint a receiver.
These Regulations prescribe the rate of commission that may be retained by a receiver out of any money received as remuneration and in satisfaction of all costs.
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