Property Receivers
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
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.