The High Court has ruled that a 2011 possession order in favour of Stepstone Mortgage Funding Limited covered a Clare property together with three appurtenant rights recorded on its folio when the lender took its charge. The court also found that two of those rights had been cancelled from the register in error.
The judgment, delivered by Miss Justice Laffoy on 30 March 2012, arose after the parties returned to court over rights of way under a liberty-to-apply provision in the possession order. The judge was addressing what that existing order covered; the hearing was not a new determination of the original possession claim.
The property was described in the judgment as Rahone, Kilfenora, County Clare, registered in Folio 32225F. The lender had offered a €192,500 loan secured on the property in April 2008. The registered folio then recorded three appurtenant rights, including rights of way and a right to take water from a well. The possession order was made on 23 May 2011, with execution stayed for six months, subject to a payment condition that the parties agreed was not met.
The defendant had argued in her affidavit that the home would be landlocked if the lender took possession, because the surrounding land was also hers and the rights of way had been extinguished. Her later points of defence said she believed the rights remained in force and had not deliberately misrepresented them. The lender submitted that it could rely on the register as it stood when it took the charge.
The judge concluded that the register was conclusive evidence of the defendant’s ownership of the property and the three appurtenant rights when the charge was created. She held that the lender’s rights as chargee included those rights. The judge also found that the Property Registration Authority had cancelled two of them from the folio in 2011 without properly addressing the lender’s interest and registered caution.
The ruling did not finally settle every question about access. The judge said she did not need to examine the general law on easements extinguished by common ownership. She found the possession order covered the property and all three rights as recorded when the charge was created, and that cancellation of two rights was an error.
To avoid further expense, the judge proposed directing the Authority to reinstate the two cancelled rights with effect from 27 April 2011. She said she would hear the parties’ submissions on the form of the order. The judgment therefore records a proposed direction, not a final order in its completed form.