A recent Supreme Court decision confirmed that, in the case of a judgment mortgage registered prior to the Land and Conveyancing Law Reform Act 2009, the Court does not have the power to force the sale of co-owned registered land if the judgment mortgage is registered against the interest of one of the co-owners only. This left a judgment mortgage creditor in such circumstances with no means of realising its judgment against the debtor’s interest in the co-owned registered lands.  Unregistered land (which accounts for about 10% of all property) is not subject to the Supreme Court decision.

The Land and Conveyancing Law Reform Act 2009 rectified this unsatisfactory position for judgment mortgages registered after 1 December 2009.  It gives the Court the power to make a sale order over co-owned registered lands. Judgment mortgages registered before 1 December 2009 will remain subject to the Supreme Court decision mentioned above.

Clients holding judgment mortgages against co-owned registered land registered prior to 1 December 2009 should take advice on the possibility of re-registering those judgment mortgages to come within the provisions of the 2009 Act.  

As an aside, it should be remembered that there is no automatic entitlement to a sale order – such orders are at the Court’s discretion and this can be particularly relevant where the subject property is a family home.

Contributed by John Aherne, Richard Breen.

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