Woman's eviction deferred due to legal loophole

THE EVICTION of a woman in Co Laois has been postponed following a ruling by the High Court which found a loophole in property legislation.

The eviction is one of the first in the country to be postponed on foot of a judgment delivered by Ms Justice Elizabeth Dunne last month.

The Laois woman wrote to county registrar Paul Fetherstonhaugh on August 3rd, two days before her home was due to be taken from her. She queried whether her case was affected by the judgment.

In a letter seen by The Irish Times, the registrar said he would postpone the repossession, which was due to take place at 12.30pm last Friday.

He told the woman he would contact her again in due course.

Mr Fetherstonhaugh, as county registrar and sheriff for Laois, may make an order for possession in certain circumstances and can also act to enforce that order. Only in Dublin and Cork are the two functions separate.

Most county registrar judgments were made under section 62 (7) of the Registration of Title Act 1964, which was repealed by the new legislation.

In July, Ms Justice Dunne found that the Land and Conveyancing Law Reform Act 2009 contained a “lacuna” and may have had “unintended consequences”.

In four test cases involving lenders Start Mortgages Ltd, Secured Property Loans Ltd and GE Capital Woodchester Homeloans Ltd, the judge said the new legislation only applied to mortgages created after its commencement on December 1st, 2009.

It repealed older conveyancing legislation. But it failed to save elements of the Registration of Title Act 1964 that would have allowed lenders to repossess properties on registered land with mortgages taken out before December 2009 that went into arrears after that date.

Ms Justice Dunne ruled that borrowers who went into arrears before December 1st, 2009, and received demand letters from lenders before that date, could still be repossessed under the old legislation.

Borrowers, however, who took out mortgages before the December date and who went into arrears after it, could not be repossessed under the old or the new law.

“It is not for the court to supply that which is not contained in the 2009 Act,” the judge said.

One of the lenders involved, GE Capital, had said it would consider taking a constitutional challenge to the 2009 legislation on the basis of Ms Justice Dunne’s decision.

Separate legal avenues still remain to lenders who wish to pursue borrowers in default, but they are much more time-consuming and expensive.

The courts will not notify homeowners who have already had orders for possession made against them under the defunct legislation that they may be affected by the judgment.

But where an order is challenged by a borrower on the grounds that it may fall within the judgment, the courts will consider the case.

David Hall, co-founder of New Beginning, which provides free legal advice to people in danger of losing their homes through repossession, said the repossession system is in chaos following the judgment.

“Our experience is that county registrars and sheriffs are not inclined to execute repossession orders where there is a legal question that is still to be clarified,” he said.

“It could be that the lack of clarity will provide an excuse for some repossessions not to take place.”

Mr Hall said New Beginning has called for an overall solution to the “gaping problem” of home repossessions in Ireland.

“Just because people are on holidays, doesn’t mean the problem does not exist.

“We are calling on the Government to come up with a resolution to keep people in their homes,” he said.

New Beginning is also challenging, through judicial review, the grounds on which county registrars have the authority to make orders for possession, he added.