The High Court has proposed declaring that Kay Breen holds a beneficial interest in a Dundalk investment property for the estate of her late estranged husband, while her own interest is not subject to a Bank of Ireland mortgage placed over the property in 2008.
Mr Justice Tony O’Connor’s judgment addresses ownership of the property at Distillery Mews, bought in 2000 in the joint names of Kay Breen and the deceased. The court found that the deceased’s unequal contribution to the purchase price gave rise to a resulting trust, and that both purchasers also remained liable for the original mortgage. It declined to apply the presumption that a husband intended a gift to his wife, noting they were living apart and the property was an investment, not a family home.
The judge also found that the deceased’s 2008 redemption and replacement of the mortgage amounted at least to an alienation of his interest, severing the joint tenancy. The estate and Kay Breen therefore hold beneficial interests as tenants in common. The judgment does not specify their respective shares.
In 2008, €143,741.32 from a Bank of Ireland loan was used to redeem the original AIB mortgage. The new loan purportedly secured both the Dundalk property and a holiday home in Donegal. Kay Breen had not been told of the redemption or the new charge. The deceased continued to receive the Dundalk rent, which Kay Breen believed was servicing the original mortgage.
The judge said Kay Breen should not be disadvantaged by the deceased’s conduct. He proposed declaring that her interest is not subject to the Bank of Ireland mortgage. The deceased’s bequest of his interest in the Dundalk property to Kay Breen would, however, remain subject to any enforceable mortgage over his interest.
These are proposed orders, not final orders. The court said it would hear counsel on a convenient day about the precise terms of any declaration or other order sought. It also proposed allowing any party to apply on notice to the others. The judgment does not determine what Bank of Ireland will do to enforce security over the deceased’s interest.