The High Court has ruled that a judgment mortgage registered against James Bergin’s interest in land in County Kilkenny applies to his undivided half share, not the share owned by his late father, Kieran Bergin.
In a judgment delivered on 14 January 2020, Mr Justice Allen found that a deed signed by the two men on 8 May 2013 effectively severed their joint tenancy and converted their ownership to a tenancy in common. The judgment mortgage held by A.D.M. Mersey plc remained attached to James Bergin’s interest, which became an undivided half share.
The court was asked to decide whether the creditor’s charge reached the whole property, including Kieran Bergin’s interest, or only the debtor’s share. The creditor had obtained judgment against James and Nicola Bergin in July 2010 for €604,029.06 and €315.98 in costs. It registered a judgment mortgage against James Bergin’s interest in Folio 7642, County Kilkenny, in September that year. James had been registered as a joint owner with his father since 1992.
The creditor later sought partition or sale of the land and distribution of the proceeds. A 2016 order declared the judgment mortgage well charged on the defendants’ interest, while the remaining relief was adjourned. Kieran Bergin, who had not been named as a defendant, died in 2018. His grandchildren Eimear and Ciaran Bergin were subsequently joined as defendants in their capacity as joint legal personal representatives of his estate.
The creditor argued that the 2013 severance could not reduce its security and that, following Kieran Bergin’s death, survivorship entitled James Bergin to the whole property. The estate’s position was that the deed severed the joint tenancy before his death. The judgment records that the deed was executed in 2013 but registered in 2017; the parties agreed that the later registration made no difference.
Mr Justice Allen held that the judgment mortgage charged James Bergin’s interest, not the land as a whole, and did not prevent the joint tenants from agreeing to sever their tenancy. He found the deed was effective and that neither co-owner transferred any part of his interest to the other by severing the joint tenancy.
The court concluded that the folio correctly recorded James and Kieran Bergin as tenants in common, each holding an undivided half share, with James’s share subject to the judgment mortgage. The judgment does not record a decision on the creditor’s outstanding request for partition or sale, or an order distributing sale proceeds.