Sunday 11 December 2016

Selling site 'on cheap' would have legal issues

Published 18/06/2015 | 02:30

The Spawell Complex in Templeogue, Dublin, was placed on the market with an asking price of €6.5m
The Spawell Complex in Templeogue, Dublin, was placed on the market with an asking price of €6.5m

Despite its stated obligations to "community development," NAMA may have been correct not to conduct any sort of preferential deal with the Dublin GAA County Board.

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In the absence of details, we can reasonably assume that such a deal would be "preferential" to Dublin GAA because the indicators are (in the absence of a statement by NAMA) that the GAA has not submitted the highest price - or else the GAA would, in all likelihood, own the property by now.

Highest offers are often turned down for any number of reasons. It can happen because the next highest bidder has offered cash whereas the highest bidder is on finance and the latter's prospects of securing all the money might not be airtight.

Sometimes in a rising market, timing is an issue. For example, if the highest bidder offers €6.5m but can't come up with the payment for six months, then the vendors will lose out 5pc in a market which is rising in value by 10pc per annum and it may be more economical and prudent to go with the next highest bid instead if that bidder can pay up straight away.

The above scenario would be unlikely given that financially Dublin GAA has a blue chip reputation.

So once we accept that selling the property to the GAA would involve it paying a lower price than the highest achievable on the market - that the GAA would be getting a "sweetheart deal" - then we need to start considering the status of NAMA in this case.

NAMA does not own this property and it is not the vendor. Rather NAMA controls the loan. In its role as a bad bank NAMA took control of the debtor's loans which have not been functioning.

As with home loan defaults, there are different degrees of "not functioning" from paying nothing at all to paying substantial amounts, but just not the full repayments due. So we really don't know to what degree the debtor is indebted and in or out of control.

NAMA has perhaps decided to sit on this case until the property market rose high enough to make a sale of this property most profitable. Right now centrally located land is at a premium in Dublin and prices have been rising in the capital for three years. Much of the lost value of Spawell will have been recouped in this period. So NAMA likely used the rise in value as the reason to appoint a receiver.

Once we understand that NAMA is not the vendor/owner, the next step is consider the role of the receiver in the equation. While NAMA has appointed the receiver, the receiver now acts for the debtor and not for NAMA.

The receiver is obliged to get the best deal for the debtor so they can emerge with the best financial prospects. So selling the property on the debtor's behalf to the GAA 'on the cheap' leaves the receiver open to legal action and breach of professional duty. Any instructions by NAMA to do so likely leaves NAMA open similarly to legal recourse.

It's a bit like you getting into debt on your house and your loan going to NAMA. Finally the market rises to help you recruit your prospects, but NAMA says you have to take a lower price for the property from the local pitch and putt club because, well, they help the kids!

Mark Keenan is residential property editor of the Irish Independent

Irish Independent

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