The Court of Appeal has dismissed Janet Matthews’ appeal against a High Court order granting Bank of Ireland possession of a house at 16, The Glen, Inse Bay, Laytown, County Meath.
The judgment, delivered by Mr Justice Noonan on 31 July 2020, found that the possession claim was not statute-barred and that the proceedings did not have to be brought in the Circuit Court under section 3 of the Land and Conveyancing Law Reform Act 2013. The appeal was heard by Noonan, Power and Collins JJ.
The property was mortgaged by the late John Melsop, Matthews’ partner, under a €234,000 loan taken out in 2005. He fell into arrears from about July 2009 but continued to make intermittent payments. The judgment says the lender did not call in the loan or enforce the mortgage before his death in February 2013. Matthews, who had been living at the property, made payments for almost a year after his death; the last recorded payment was in January 2014.
Matthews said Melsop had left a will appointing her executor and leaving her the property, but the will was not put in evidence and had not been admitted to probate. The High Court had found that she had acted as executor without formal appointment, making her an “executor de son tort”. She did not appeal that finding.
The Court of Appeal held that this status did not give Matthews title to the estate or make her a “mortgagor” for the purposes of the 2013 Act. It concluded that the Act’s Circuit Court requirement therefore did not apply to her case.
On limitation, Matthews argued that the claim had arisen when the first loan payment was missed in 2009 and was subject to the two-year rule for claims against a deceased person’s estate. The court rejected that argument. It said the mortgage required a demand before the secured sum became payable, and the lender’s claim for possession could not accrue until the principal was due and payable.
Bank of Ireland demanded payment of the arrears and loan balance in August 2016, followed by a demand for possession in September. The court held that the cause of action accrued on the August demand, after Melsop’s death, so the claim was not barred under section 9(2) of the Civil Liability Act 1961.
The Court of Appeal dismissed the appeal. The High Court possession order would take immediate effect. Matthews was given 14 days to submit written arguments, of no more than 2,000 words, if she wished to seek a stay; the bank was allowed the same period to respond. Any submissions were also to address costs. If none were received, the court said it would make an order for costs in the bank’s favour in the usual way.