AN ELDERLY woman faces eviction from her home of many years following a High Court decision that she has no arguable case to prevent Start Mortgages taking possession of the property due to mortgage arrears incurred by her daughter.
Ms Justice Mary Laffoy said yesterday it was “tragic” that Eileen Tynan (74), irrespective of the outcome of her full legal proceedings, “will have to leave the home and neighbourhood in which she has lived for almost 40 years”.
Even if Ms Tynan established a right of residence in the property in full legal proceedings, all she would be entitled to was a sum of money representing the value of that right, the judge found. She would not be entitled to any order protecting her continued residence there.
Ms Tynan has lived on Old Callan Road, Kilkenny, since 1974. The court was told she and her daughter Veronica always understood she would live there for her lifetime.
The house was a council property but Ms Tynan and her husband Patrick bought it out in 1980. After the marriage broke up in 1999, in an effort to avoid the sale of her home, Ms Tynan agreed with her husband in 2000 to transfer their interest to Veronica, who paid £30,000 to buy out her father’s half-interest. No money was paid to Ms Tynan for her interest.
Another daughter, Helena, later agreed to buy the premises from Veronica after the latter became ill but the property was sold back to Veronica in 2005, when Helena was getting married.
Veronica took out a €180,000 mortgage with Start but became ill again in 2007 and mortgage arrears built up, leading to Start taking possession proceedings.
A possession order was made in October 2008 when arrears were about €31,000. The arrears are now about €48,000 and €209,616 is owed under the mortgage. The property has been given a “drive-by” value of €155,000.
Execution of the order was stayed after Ms Tynan brought her action arguing for a right of residence in it. Pending the full hearing, she sought an injunction restraining eviction by the Kilkenny county registrar on foot of the possession order.
In a reserved judgment, Ms Justice Laffoy refused the application. She said Ms Tynan had made no arguable case that she had a right of residence in the property which had priority over Start’s charge.
She upheld Start’s arguments that Ms Tynan had independent legal advice before signing a deed of confirmation dated December 5th, 2005, providing for the execution of a mortgage deed by Veronica regarding the property.
