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Start Mortgages Ltd & ORS V GUNN & ORS [2011] IEHC 275

AUTHOR(S): Niamh Counihan, Julie Murphy-O’Connor, Tony O’Grady
PRACTICE AREA GROUP: Corporate Restructuring and Insolvency
DATE: 12.08.2011

Summary proceedings for possession of registered land - whether s 62(7) Registration of Title Act 1964 can be relied on in respect of pre-December 2009 charges  

High Court (Dunne J) held that the repeal of section 62(7) of the Registration of Title Act 1964  precluded chargeholders from seeking to recover possession of registered property in a summary manner, unless the principal monies secured by the charge were due and demanded on or before 1 December 2009 (being the date of repeal).

Section 62(7) of the 1964 Act, confers the power on the holder of a registered charge to apply to court in a summary (short/simplified) manner for an order for possession provided the principal monies secured by the charge have become due. 

It was argued by the defendants that since section 62(7) had been repealed by the Land and Conveyancing Law Reform Act 2009, it could no longer be relied on by a holder of security over registered land. Since the 2009 Act only applies to mortgages and charges entered into after its commencement (1 December 2009), a chargeholder could not rely on the relevant provisions of that Act in relation to older charges, and in effect a lacuna arises.

The plaintiffs argued that Section 27 of the Interpretation Act 2005, which provides that any right which has been acquired or has accrued prior to the repeal of a legislative provision cannot be affected by the repeal, operated to preserve the right of a chargeholder to rely on the provisions of section 62(7) of the 1964 Act.

Ms Justice Dunne held that the right to apply in a summary manner to court for possession of registered land pursuant to section 62(7) of the 1964 Act was a “right” which would be preserved by section 27 of the 2005 Act, provided it had accrued or been acquired prior to the repeal of the 1964 Act. However, she concluded that the right of a holder of a charge over registered land to bring possession proceedings in a summary manner does not arise upon the registration of the charge, but instead upon the principal monies becoming due and demand having been made.

She therefore concluded, that if the principal monies were due and demanded on or before 1 December 2009, the chargeholder can proceed for possession in a summary manner in reliance on section 62(7) of the 1964 Act, notwithstanding the repeal of this section. If, however, the monies become due and owing after 1 December 2009, then the holder of such security is precluded from relying on section 62(7) of the 1964 Act. Chargeholders that find themselves in this position are not entitled to avail of the provisions of the 2009 Act either as the 2009 Act only applies to charges created after 1 December 2009. A lacuna therefore arises.

It should be noted that a mortgagee will almost invariably have a contractual right to possession of the property under the mortgage deed, and therefore to take such proceedings as are necessary to enforce that right. Where there is such a contractual right, proceedings will not of course be necessary if possession can be obtained in a peaceable manner.



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