The High Court has allowed Bernadette Morton’s appeal against a Circuit Court possession order, ruling that the Circuit Court lacked jurisdiction to make the order. The court’s judgment did not determine that the plaintiff could not rely on its registered charge: it said that, if jurisdiction existed, the second defendant had not established a basis to set the order aside on that ground.
The appeal concerned land at Kells Road, Collon, County Louth. A Circuit Court possession order had been made on 14 March 2019. The High Court considered whether section 3(1) of the Land and Conveyancing Law Reform Act 2013 gave the Circuit Court jurisdiction because the premises were the second defendant’s principal private residence.
The plaintiff conceded that the second defendant was not a mortgagor for the purposes of section 3(1)(a). The remaining question was whether she was a person whose consent was required under the Family Home Protection Act 1976 for a conveyance of the land to be valid.
The court considered authorities interpreting that Act as addressing a spouse’s unilateral conveyance of an interest in the family home without the other spouse’s prior written consent. It held that the provision did not apply where both spouses were parties to the conveyance. Although the property was registered in both defendants’ names, the mortgage had been taken out by the first defendant alone; the second defendant had signed an indenture of confirmation, which stated that she was not to be treated as a mortgagor.
The judge concluded that the second defendant was neither a mortgagor nor a person whose consent was required under the 1976 Act in the relevant sense. The first defendant did not live at the premises as his principal private residence. The Circuit Court therefore lacked jurisdiction under section 3(1) to hear the possession application, and the second defendant succeeded in her appeal.
The second defendant also challenged the plaintiff’s reliance on the registered charge, pointing to the timing of its registration and transfers. The judge addressed that argument only in the alternative. Relying on Court of Appeal authority on the conclusiveness of the Land Register in possession proceedings, she held that the second defendant could not challenge the correctness of the registration in that proceeding. If jurisdiction existed, the plaintiff had satisfied the proof required for possession.
The judge’s indicative view was that the second defendant should receive her costs from the plaintiff. The court listed the matter for consideration of final orders on 31 July 2024 and invited any written submissions on costs to be lodged 48 hours beforehand.