The High Court has ordered the sale of a co-owned property in Balbriggan to enforce a bank debt charged against one owner’s interest. The order takes effect only if the debt and accrued interest remain unpaid within three months after the court order is served on the defendants.
In a supplemental judgment delivered on 22 November 2022, Mr Justice Garrett Simons said it was just and equitable to order a sale under section 31 of the Land and Conveyancing Law Reform Act 2009. The case was brought by Allied Irish Banks plc against Kellie Greene, otherwise Kellie Byrne, and Kenneth Greene.
The court had previously ruled that the first defendant’s interest in the property was charged with the debt, but that the second defendant’s interest was not. The bank sought a sale so the debt could be paid, in whole or in part, from the share of the proceeds attributable to the first defendant. The court directed that the second defendant receive half of the net proceeds, after prior encumbrances and sale costs.
The judge considered factors including whether a sale could leave a non-debtor co-owner homeless, the accommodation available from their share of the proceeds, and their connection to the underlying borrowing. He said the defendants had not participated in the proceedings, despite being made aware of the August judgment and the October hearing. Their absence left practical difficulties in assessing the factors, he said.
The judge noted that the property was not the defendants’ family home and that affidavits indicated they lived elsewhere. He also said the second defendant had guaranteed loans taken out by the first defendant and was aware that security had been granted over the property. The earlier judgment had found that the guarantee did not amount to an equitable mortgage over the second defendant’s share.
The order declares that €413,188.25, as of 16 October 2020, together with interest under the Courts Act 1981, is well charged on the first defendant’s interest in the property. If the amount is not paid within the specified three-month period, the property is to be sold at a time, place and on conditions settled by the High Court. The Examiner’s Office is to account for any encumbrances and inquire into their priorities.
The court made no order as to legal costs, noting that the bank had been only partially successful because it did not obtain a well-charging order against the second defendant’s interest. The perfected order may be served by registered post to an address specified in an earlier order; that address is redacted from the published judgment.