Significant Amendments in the Area of Judgment Mortgages

The Judgment Mortgage (Ireland) Acts 1850 and 1858 have been repealed and replaced with provisions in the Land and Conveyancing Law Reform Act 2009 (the 2009 Act). Under these provisions, a creditor who has obtained judgment may since 1st December 2009 apply to the Property Registration Authority for its registration as a judgment mortgage using a simplified form of affidavit that has previously been certified by the court office which issued the judgment.

The 2009 Act also clarifies a number of matters upon which there has been some doubt. These can be summarized as follows:

  • There is no need to re-register a judgment mortgage every 5 years.
  • A creditor may still register a judgment mortgage even though the judgment debtor has been granted a stay of execution, unless the court orders otherwise.
  • A judgment mortgage can be registered against a beneficiary’s interest under a trust for sale, even though the doctrine of conversion deems that interest to be personality.
  • The 2009 Act abolished the requirement that the amount of the judgment debt be included in the judgment mortgage affidavit.
  • The 2009 Act clarifies that the registration of a judgment mortgage against the interest of a joint tenant does not sever a joint tenancy. The practical effect of this section is that a judgment mortgage which is registered against land of a joint tenant extinguishes upon the death of a judgment creditor.
  • The 2009 Act provides that the entire beneficial interest of a property passes to the purchaser on the making of an enforceable contract, unless the contract provides otherwise. This has had an impact on the position of a purchaser where a judgment mortgage has been registered during the purchase process or after the property has been purchased but before they have been registered as owner. In effect this protects a purchaser’s priority and any mortgage that was registered in respect of the vendor after the making of a valid and enforceable contract can be cancelled from the register.
  • The 2009 Act abolishes the Partition Acts 1868 and 1876 and introduces new provisions to deal with disputes between all co-owners of lands. The 2009 Act gives the court broad discretionary powers regarding amongst other things the physical division of the land.

 For advice on the above points or on the topic of judgment mortgages please contact us .