Mortgages Part Three Flashcards
What is a judgment mortgage?
It is a legal mechanism allowing a creditor to secure a court-awarded debt against the debtor’s land.
How is a judgment mortgage enforced?
By filing an affidavit with the court and registering it with the Land Registry or Registry of Deeds.
Can a judgment mortgage be vacated?
Yes, once the judgment debt is fully paid.
What legislation governed judgment mortgages pre-2009?
Judgment Mortgage (Ireland) Act 1850 and Judgment Mortgage Act 1858.
What are the 4 steps to create a judgment mortgage pre-2009?
- Debt exists
- Judgment obtained
- Affidavit sworn (per s.6 of 1850 Act)
- Affidavit filed and registered
What must the affidavit under s.6 contain?
- Case name & court
- Parties’ names, addresses, professions
- Location of land
- Debt amount
- Statement that debtor owns the land
What did the 2009 Act do for judgment mortgages?
Simplified the process and repealed the 1850/1858 Acts.
What is the relevant section for post-2009 judgment mortgages?
Section 116 of the LCLRA 2009.
What form is used for registered land post-2009?
Form 60 (previously Form 112).
What must the application for registered land include?
- Certification of judgment
- Statement verifying debtor’s interest in land
- Folio reference
What is used for unregistered land?
Form 60 with supporting affidavit or discharge and a registration fee.
What interest does the mortgage affect?
The debtor’s beneficial interest in land.
What powers does the judgment mortgagee have?
Apply to court under s.117 for a well-charging order and order for sale.
Is registration of a judgment mortgage a conveyance under the Family Home Protection Act?
No – see Containercare v Wycherley [1982].
What is the ‘technical defence’?
A defence arguing invalidation of the judgment mortgage due to failure to strictly comply with s.6 of the 1850 Act.
Give an example where strict compliance led to invalidation.
Murphy v Lacey (1897) – debtor called a ‘farmer’ instead of a ‘farm labourer’.
Which case supported a flexible, purpose-based interpretation of s.6?
Irish Bank of Commerce v O’Hara (1992)
What did Costello J say in O’Hara?
The purpose of s.6 is to identify land and debtor with certainty, not enforce rigid formality.
Which case applied this approach to occupation description?
Ulster Bank v Crawford (1999) – ‘proprietor’ was acceptable in place of ‘building contractor’.
What case reaffirmed common sense for land description?
Dovebid Netherlands BV v Phelan [2007]
What case held that judgment mortgage registration isn’t a conveyance?
Containercare v Wycherley [1982]
What did Thorpe v Browne (1867) establish?
Compliance with s.6 should aim to clearly identify the debtor and land, not demand rigid technicality.
What has the LRC proposed regarding technical errors?
That innocent errors not causing doubt about debtor or land should be rectifiable, not fatal.
