The High Court has ordered possession of a Limerick property to WF Shap (Ireland) DAC under a reverse mortgage, ruling that its claim was not barred by the two-year limitation period for certain claims against a deceased person’s estate.
Mr Justice Garrett Simons held on 10 February 2020 that the mortgage required a formal demand for repayment before the lender’s right to seek possession arose. No demand had been made before Laurence Johnson died on 2 December 2015. The possession claim therefore was not subsisting at his death and was not subject to the two-year limit under the Civil Liability Act 1961. The court said the applicable limitation period was 12 years and that the proceedings had been brought within it.
Johnson had borrowed €52,700 from Seniors Finance Ireland Ltd. in 2007 against his home at 36 Assumpta Park. The loan was structured so that principal and interest would become payable on specified events, including his death, rather than through monthly repayments. Seniors Finance later transferred its mortgage interest to WF Shap, whose interest was registered in 2016.
The mortgage made the loan repayable on demand after the borrower’s death. WF Shap first wrote seeking repayment in March 2017, then sent a formal demand to Donal Fingleton, appointed administrator ad litem of Johnson’s estate, on 14 February 2018. The demand for €101,599.77 was not paid. WF Shap began possession proceedings on 29 May 2018.
A High Court Master had struck out the summons as statute-barred in February 2019. The High Court discharged that order the following month, holding that the Master had no jurisdiction to decide the limitation dispute. The possession application was later heard by Mr Justice Simons.
The judge found that the mortgage had been assigned to WF Shap, the secured money was due following the death and unsatisfied demand, and no discretionary reason had been advanced to refuse possession. He ordered possession under section 62(7) of the Registration of Title Act 1964, which continued to apply to the 2007 mortgage under transitional legislation.
The judgment also discussed, without deciding, whether a claim triggered by death could be considered “subsisting” at death even where a mortgage did not require a formal demand, and whether possession proceedings might be characterised as proceedings in rem. The court said it was unnecessary to reach conclusions on those points. It reserved the question of whether ancillary orders sought in the special summons were necessary for further submissions.