The High Court refused an application to partition a Finglas family home held by Walter and Pauline Cosgrave, finding that the creditor had given no reason to justify the order beyond seeking payment of a debt owed by Walter Cosgrave.
Owen Whyte had sought partition of the lands and house at 66 Plunkett Avenue under section 31(2)(a) of the Land and Conveyancing Law Reform Act 2009, together with related accounts and inquiries. The proceedings began by special summons in October 2013. In his judgment delivered on 11 April 2016, Mr Justice O’Connor said the application before him had been confined to those two orders.
The Cosgraves had been registered as joint owners of the property in 1987. The judgment records that Pauline Cosgrave had lived there since then, contributed significantly to mortgage repayments and upkeep, and that it remained a family home used by her extended family. Her evidence that she could not afford alternative accommodation on her pension was unchallenged.
Whyte’s claim arose from a €450,000 award made against Walter Cosgrave in 2008. A judgment mortgage was registered against Walter Cosgrave on the property folio in 2010. The judgment says Pauline Cosgrave did not know of the proceedings until they were served and explained to her. A request for her consent to partition was sent in July 2014, on the eve of a hearing.
The judge said a judgment mortgage does not itself sever a joint tenancy under section 30(3) of the 2009 Act. He said creditors should engage with affected joint owners before issuing proceedings and must establish why severing the joint tenancy is justified. The court considered partition likely to be futile because the family home could not be physically divided, and said an order would cause unnecessary costs and stress to Pauline Cosgrave.
The court refused the orders sought. It did not order partition, sale, or the related accounts and inquiries. The judge added, as an observation rather than an order, that after prior engagement a creditor might apply to sever a joint tenancy if the court were satisfied that an innocent joint tenant had unreasonably withheld consent.