The High Court has declared that a transfer of a woman’s family home to her daughter, and a later charge over the property used to secure a €190,000 loan, were procured by fraud and are void from the outset. It directed the Property Registration Authority to correct the register and awarded the mother damages totalling €35,000 against her solicitor. Her daughter was ordered to pay €75,000 in exemplary damages.
In a second judgment in the case, delivered on 28 June 2023, Mr Justice Cregan dealt with the validity of the property transfer and loan charge, the appointment of a receiver, and damages. The first stage of the case had already found the solicitor negligent and the daughter had committed fraud. The court had reserved these further issues for a later stage.
The judge found that the daughter had fraudulently obtained the transfer of her parents’ home and misrepresented to First Active that she owned the property and could charge it as security. He also found that signatures on documents connected with the transfer and Dublin City Council’s vesting of the fee simple had been forged by the daughter or someone acting on her behalf. The transfer and the council’s consent were set aside. The court directed the authority to take the necessary steps to reflect its decisions on the register.
Promontoria DAC, which had acquired the loan, argued that the charge should remain valid because First Active had not known of the fraud. The judge rejected that submission, finding that the charge itself was part of the fraud and was void from the outset. He also held that the charge was null and void under the Housing Act because the council’s consent had been obtained by fraud. The judge said it was unnecessary to decide a separate argument under section 72 of the Registration of Title Act. Because the charge was void, he ruled that the receiver’s appointment was invalid.
The court awarded the mother €5,000 in compensatory damages and €30,000 in aggravated damages against the solicitor. The judge cited his earlier findings of gross negligence, including that the solicitor had not given the couple written advice, had lost the transaction file and had changed dates on transfer documents. He also found that the solicitor had defended the case despite knowing of his own conduct. The daughter was ordered to pay €75,000 in exemplary damages for the fraud.
The judgment records evidence that €348,504.65 remained owing on the loan as of 25 April 2023, with interest accruing at €41 a day. The judge said it was unnecessary to assess damages against the solicitor to cover the charge because it had been set aside. Promontoria’s possible claim against the solicitor under an undertaking was left for another day.