The High Court has refused an application by Eileen Tynan to stop the County Registrar from evicting her from Rose Villa House on Old Callan Road, Kilkenny, while her substantive case continues.
Miss Justice Laffoy ruled on 22 June 2011 that Tynan had not shown a fair issue to be tried over whether a claimed right of residence took priority over a registered mortgage charge. The decision concerned an interlocutory injunction only; it did not determine the final claim or declare whether Tynan had a right of residence.
Tynan, the mother of the mortgagor, said she had lived in the house since 1974 and understood she could remain there for life. The property was transferred to her daughter in 2002, then to another daughter in 2004, and back to the mortgagor in 2007. The judgment records that Tynan received no payment for her interest when the property was first transferred to the mortgagor.
In 2005, Tynan signed a Deed of Confirmation connected with her daughter’s mortgage. She said the solicitor’s advice before signing was inadequate and that she had not been told she risked losing her home. The mortgagee relied on the deed and on the solicitor’s letter stating that its contents had been explained and Tynan understood what she was signing. The judge said the mortgagee was entitled to rely on that letter and concluded Tynan had not shown an arguable case that the deed failed to postpone any residence right to the mortgage charge.
The court also held that any such right, if established, would be a personal right in the nature of a lien for money’s worth under section 81 of the Registration of Title Act 1964. It would not entitle Tynan to an order protecting her continued residence. The judge said damages would be an adequate remedy on the evidence before her, as there was no evidence the mortgagee would be unable or unwilling to pay any sum ultimately found due.
The mortgagee had obtained an order for possession against the mortgagor in 2008. The judgment records mortgage arrears of €48,675 and a total balance of €209,616 at the time of this application. The judge found the balance of convenience favoured refusing an injunction, noting that no payments had been made for almost two years and the gap between the debt and the property’s expected sale value was widening.
The injunction was refused. The judge said the court would endeavour to accommodate an expedited hearing of the substantive action. If that happened, it would explore a possible arrangement to retain sale proceeds pending its determination. The judgment addressed Tynan’s position only against the mortgagee, not against people who were not parties to the proceedings.