The Supreme Court dismissed James and Patricia Kenny’s appeal against an order for sale of their home at 4 Temple Road, Dartry, but stayed the sale subject to conditions. The Court said the conditions would allow the couple to continue living there while Trinity College received part payment of its judgment debt and retained security.
The appeal concerned a High Court order made in 2010 under the Partition Acts. That order allowed Trinity, which had registered judgment mortgages against Mr Kenny’s interest in the Dartry property, to seek a sale in lieu of partition. The judgment mortgages arose from taxed costs awarded against him in earlier litigation concerning student accommodation development. The High Court had valued the Dartry home at €1.5 million and concluded that, after the sale and discharge of a prior mortgage, Mrs Kenny would have enough to buy alternative accommodation.
The Supreme Court considered changed circumstances, including the couple’s advanced age and the increase in the prior Bank of Ireland mortgage to about €800,000. It estimated that Mrs Kenny might receive little more than €300,000 from a sale. The Court said an immediate sale would be oppressive, given the couple’s age, their long residence in Dartry and their nearby family and support services. It also noted that Trinity faced a risk of losing its security over the Donegal property if Mr Kenny died before his wife.
The Court affirmed the sale order, but stayed its operation until the Dartry property is sold or the last surviving Kenny dies, whichever is later, allowing reasonable time for a personal representative to sell afterward. Within six months of the judgment, the Donegal property must be placed on the market and the net proceeds paid to Trinity toward the debt. Mrs Kenny is to receive credit for her half share by an increase in her equity in the Dartry property. She may apply to the High Court to determine the percentage of that equity using evidence of the Donegal sale proceeds and the Dartry property’s value.
The parties must also take steps within three months to sever the joint tenancy in the two Donegal folios. The couple’s children may buy the Donegal property at a price agreed by the parties. The High Court may extend the sale deadline for cause shown and will deal with other sale orders. The Supreme Court did not order a sale of the Donegal property; it made the Dartry sale stay conditional on the parties taking steps to sell Donegal. It left Mr Kenny’s asserted veto over a sale of Dartry for later consideration.