The High Court ruled that mortgage lenders could pursue possession under a repealed statutory procedure only where the secured principal had become due before 1 December 2009. That required both a default and a demand for repayment, the court said. It struck out the proceedings against Tom and Mary Clair, whose repayment demand came after that date, but allowed the case against Colm Mulkerrins to continue, subject to any defence.
In a judgment delivered on 25 July 2011, Ms Justice Dunne considered four cases concerning section 62(7) of the Registration of Title Act 1964. The section had allowed a registered charge holder to apply to court in a summary manner for possession after repayment of the secured principal became due. It was repealed when the Land and Conveyancing Law Reform Act 2009 took effect on 1 December 2009.
The lenders argued that the Interpretation Act 2005 preserved their rights despite the repeal. The judge held that a right to apply for possession was saved if it had arisen by the repeal date. Registration of a charge alone did not create that right: default and a demand for repayment had to occur first.
The case against the Clairs concerned a loan secured over property that was not their family home. Although the loan had fallen into default before the repeal, the demand for vacant possession and payment was made on 13 July 2010. The judge found the lender had no saved right to apply under section 62(7) and struck out the proceedings.
In the Mulkerrins case, default occurred in May 2008 and demands were sent before the repeal. The judge said the necessary events had occurred in time, so those proceedings could continue, subject to any defence.
The other two cases also involved demands made after 1 December 2009. In the Gunn case, proceedings had already been issued before the repeal and could continue under the Interpretation Act. In the Grogan case, a 5 October 2009 letter described as a formal demand did not call for repayment of the principal; the operative demand was made on 19 January 2010. The lender therefore could not seek possession under the repealed section.
The ruling addressed only the availability of this possession procedure, not other possible defences. Justice Dunne noted that the 2009 Act’s replacement mortgage enforcement provisions applied to mortgages created by deed after the relevant chapter commenced. She said the repeal appeared to leave a gap for some earlier mortgages, but it was not for the court to supply a remedy absent from the legislation.