Judgment: 2013-05-03 · Court archive

High Court remits Havertys’ mortgage complaint for review of family-home consent issue

The court accepted that the 1998 charge covered either spouse’s future borrowing, but sent the Ombudsman’s decision back to consider whether the family-home charge could be valid without written spousal consent.

High Court · [2013] IEHC 233

Who, what, where, when and why

Who
  • Henry Haverty
  • Martine Haverty (Appellant)
  • Financial Services Ombudsman (Respondent)
What

The court accepted that the 1998 charge covered either spouse’s future borrowing, but sent the Ombudsman’s decision back to consider whether the family-home charge could be valid without written spousal consent.

Where

Places mentioned in the report

  • Meelickbeg, Tuam, County Galway
  • Meelickbeg
  • Tuam
  • County Galway
When

Judgment:

Why

Reasons reported in the judgment

The High Court has allowed Henry and Martine Haverty’s appeal against a Financial Services Ombudsman finding that ACC Bank did not have to release a charge over their family home. The court remitted the matter to the Ombudsman for further consideration of the possible effect of the Family Home Protection Act 1976.

The High Court has allowed Henry and Martine Haverty’s appeal against a Financial Services Ombudsman finding that ACC Bank did not have to release a charge over their family home. The court remitted the matter to the Ombudsman for further consideration of the possible effect of the Family Home Protection Act 1976.

The appeal concerned a charge registered over land at Meelickbeg, Tuam, County Galway. ACC had advanced £55,000 in 1997 to build the home. The loan was repaid in full in March 2007, but ACC refused to discharge the charge, saying it secured present and future advances.

The Ombudsman had found that the charge covered future borrowing and that money remained due because Henry Haverty owed ACC about €1.3 million. The Ombudsman decided the complaint on written submissions and evidence, without an oral hearing. The High Court appeal sought an order remitting that finding for review.

The appellants argued that the deed’s reference to “the Borrower” did not establish that the family-home charge secured future loans made to either spouse individually. The court rejected that interpretation. It held that the deed’s wording meant both spouses together or either one separately, and that the charge covered future advances due from either spouse, including as guarantor for another party.

However, the court found that the Ombudsman had not considered the Family Home Protection Act or the possible implications of the absence of written consent from the second appellant. The judgment noted that later loan documents for advances of €1,073,000 in 2006 and €1,234,000 in 2009 did not refer to the family home as security. The court said the question of the charge’s validity in the absence of written consent remained to be addressed, even though it had not been raised before the Ombudsman.

The court allowed the appeal and remitted the matter for further consideration. It did not itself decide whether the charge was invalid or direct ACC to release it. The judge said costs could arise because the successful point had not been argued before the Ombudsman, and indicated that submissions on costs would be heard.

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