A judgment mortgage registered against Liam Lawlor’s interest in two jointly owned Dublin land folios did not sever his joint tenancy with his wife, the High Court ruled in a preliminary issue. After Lawlor died, the lands passed to Hazel Lawlor by survivorship and ceased to be affected by that mortgage, Ms Justice Laffoy held.
The dispute arose in proceedings brought by members of the Tribunal of Inquiry into Certain Planning Matters and Payments to enforce litigation costs awarded against Lawlor. The plaintiffs sought to have the debt secured against his interest in lands registered on Folio 47924F and Folio 573, with enforcement by sale and/or appointment of a receiver. The judgment described the costs secured across six proceedings as totalling €430,510.66, plus interest.
Hazel Lawlor asked the court to decide as a preliminary issue whether registration of the mortgages had ended the joint tenancy. Her lawyers argued it had not, and that she became sole owner by survivorship, free of the mortgages. The plaintiffs argued that registration severed the joint tenancy, leaving Lawlor with a separate interest that became part of his estate and remained subject to the mortgages. An administrator ad litem appointed to represent the estate made no submissions.
The court distinguished registered land from unregistered land. It said that for registered land, the applicable legislation made a judgment mortgage a charge on the debtor’s interest, without transferring that interest to the creditor. Because the registration did not amount to an alienation, it did not sever the joint tenancy.
The court found that neither the first nor the later mortgages registered against Lawlor’s interest had severed the joint tenancy. On his death, the lands accrued to Hazel Lawlor by survivorship, and the mortgages affecting his interest ceased with it.
The ruling addressed the narrower question of severance, not the full enforcement claim. Justice Laffoy noted that a separate decision, Irwin v. Deasy, had held that a judgment creditor lacked standing to seek a sale of registered land in the circumstances considered there; that decision was under appeal at the time. The court did not determine the plaintiffs’ broader sale claim in this preliminary ruling.
The judge said she would hear further submissions on the precise form of the order. She proposed a declaration that the mortgage registered on 29 July 2002 did not sever the joint tenancy and that the folios ceased to be affected by it after Lawlor’s death. Similar orders were proposed in five related proceedings.