The Supreme Court has ruled that a lien registered under section 73 of the Registration of Deeds and Title Act 2006 can secure loans advanced after the end of the registration transition period, if the parties agreed that it would. The court dismissed appeals by John Fox and Michael Kean against Court of Appeal judgments and remitted both proceedings to the High Court.
The appeals concerned liens originally created when borrowers deposited land certificates with Ulster Bank. Section 73 allowed holders to register such liens during a three-year transition period ending on 31 December 2009, after which land certificates ceased to have legal effect. The Supreme Court held that registration preserved the existing lien, including its capacity to secure future advances by agreement, subject to changes required by the move to registration.
The ruling does not establish that either borrower’s later loans were in fact covered by the relevant lien. That remains a matter for the proceedings. The judgment also did not decide questions about the priority of registered liens.
In Fox’s case, a lien in Ulster Bank’s favour was registered over land in County Westmeath in March 2009. Promontoria (Oyster) DAC later acquired the bank’s interest. It sought a well-charging order after Fox defaulted on loans advanced in 2010. The High Court refused the order, but the Court of Appeal reversed that decision. The Supreme Court dismissed Fox’s appeal on the shared legal question about later advances.
Kean’s case also involves a separate issue. Ulster Bank made additional loans to him in 2012, including a facility for €165,000, and Promontoria later sought a well-charging order after default. Kean disputes whether the lien was registered in time and whether it covered all the loans. Promontoria argued that a contractual promise could create a separate equitable charge over the land, even if the lien route could not provide security.
The Supreme Court did not decide whether such a charge exists or whether the relevant agreement was sufficiently pleaded or proved. It directed the High Court to reconsider the facts and law afresh, without being bound by the Court of Appeal’s conclusion that Promontoria could advance the argument. The High Court must consider how any claimed equitable charge would apply to registered land and the 2006 Act’s policy of registering interests in land.