The introduction of The Land and Conveyancing Law Reform (Amendment) Act 2019 increases protections for borrowers facing possession proceedings.
The Land and Conveyancing Law Reform (Amendment) Act (the “2019 Act”) was signed into law last month by President Michael D. Higgins and is due to commence before the start of the next Circuit Court term. The aim of the 2019 Act, which amends the Land and Conveyancing Law Reform (Amendment) Act 2013 (the “2013 Act”), is to provide further protections for homeowners in mortgage arrears who are faced with possession proceedings in respect of their principal private residences.
Position until now
Under section 2 of the 2013 Act the Court has the discretion to adjourn possession proceedings of its own motion if it considers it appropriate to do so (section 2 (2)(a)) . Further, under section 2 (2)(b), the Court has the power to adjourn the proceedings for a period of two months to enable a borrower to consult with a personal insolvency practitioner (“PIP”), and where appropriate to instruct a PIP to make a proposal for a personal insolvency arrangement (“PIA”) under the Personal Insolvency Acts 2012-2015. The Court in considering an application under section 2(2) (b) of the 2013 Act shall have regard to the following:
New considerations to be taken into account by the court
While the provisions of the 2013 Act are maintained, the aim of the 2019 Act is to broaden the Court’s discretion when deciding whether to make an Order for possession in respect of a borrower’s principal private residence or to adjourn the proceedings to allow a borrower more time to consult with a PIP.
Section 3 of the 2019 Act is the key section which inserts a new section 2A into the 2013 Act. Section 2A applies in the following cases:
Under the 2019 Act, the Court must take into account a range of new factors when considering whether or not to grant an Order for possession in respect of a borrower’s principal private residence and may take these factors into account when considering whether to make any other order it considers appropriate in the circumstances. The specific factors to be considered are as follows:
While many of the “new” considerations introduced by the 2019 Act are ones which are already considered by many County Registrars and Judges in the Circuit Courts around the country, the 2019 Act introduces additional safeguards to a borrower’s principal private residence and places additional value on the personal circumstances of the borrower and their family as well as the conduct of both parties in attempting to come to a resolution.
It is important that any lender seeking to enforce a mortgage is mindful of the provisions of the 2019 Act when progressing possession proceedings before the Courts, particularly where the response of the lender to proposals from borrowers and the conduct of the lender in seeking a sustainable solution with the borrower will come under the spotlight.
The Land and Conveyancing Law Reform (Amendment) Act 2019 may be found here.
 A Designated scheme is defined in section 7 of the 2019 Act to mean a scheme designated by the Minister for Justice and Equality which has the objective of providing persons who are dealing with arrears of payments due on foot of a mortgage on their principal private residence with assistance that is reasonably likely to enable such persons to address those difficulties and remain in their principal private residence.
Website by Open