The High Court has granted the plaintiff possession of a house at 14 Clonbracknagh Court, Roscommon, and dismissed the defendants’ counterclaim over the earlier sale of a licensed premises used to secure the same loan.
In a judgment delivered on 9 August 2012, Mr Justice Hedigan held that the mortgage over the house was valid. The defendants had argued that it was void under the Family Home Protection Act 1976 because the second defendant had not signed a family home declaration. They also argued that she had not received independent legal advice when she became a joint owner and later signed the mortgage.
The court found that both defendants had participated in the relevant transactions. They had signed the mortgage, and on the same day the first defendant transferred the house into their joint ownership. The judge relied on a Supreme Court decision holding that the Act’s consent requirement did not apply where both spouses joined in the conveyance. He concluded that the second defendant’s consent to her own act was not required and that the mortgage gave the plaintiff a right to possession.
The judge said the evidence did not satisfy him that anything untoward had occurred in obtaining the mortgage. He noted that both defendants had signed the mortgage application and accepted the loan offer, and that their solicitor had given an undertaking on their instructions. The loan had originally been advanced as a bridging loan to buy a licensed premises called The Hob in Charlestown, County Mayo.
The defendants had also claimed that the plaintiff sold The Hob improvidently after repossessing it in 1996. Evidence described the premises as closed, not trading and in poor condition, with part of the floor missing. It sold for IR£72,500, including the premises and licence. An auctioneer called by the defendants valued it at IR£100,000 but was unaware of its condition and that it had not been trading.
The judge found the defendants had not shown that the sale price was clearly below the appropriate range. The court therefore dismissed the counterclaim. The judgment does not quantify any further debt order; the possession order concerns the Roscommon property comprised in Folio 1769F.