Sunday 18 November 2018

Hundreds of repossession cases could be affected by appeal ruling

(stock photo)
(stock photo)

Tim Healy

A Court of Appeal ruling on important legal issues could affect hundreds of repossession cases.

In a unanimous judgment, the three judge court ruled, because the register of titles is treated as "conclusive" evidence of title, a man fighting repossession is not entitled to challenge the registration of a fund as the owner of a charge on his home.

The charge originally registered by Bank of Scotland Ireland (BOSI) on Rolf Kane's family home in Clonsilla, Dublin, was - following the merger of BOSI into Bank of Scotland (BOS) - transferred by BOS to Tanager DAC without BOS first registering itself as owner of the charge.

The legal issues arose in a High Court appeal by Tanager after the Circuit Court refused it a repossession order.

The issues were referred to the COA for determination after the High Court's Mr Justice Seamus Noonan said they could potentially affect hundreds of cases.

The COA findings will now be considered at the resumed hearing of Tanager's appeal on a date to be fixed.

The central issue concerned the potential consequences of the transfer by BOS of a charge on the property to Tanager when BOS had not registered itself as owner of the charge.

Mr Kane argued, because BOS never became registered as owner of the charge registered by BOSI on Mr Kane's home, it was not entitled to transfer or assign it to the fund. Insofar as Tanager had been registered as owner of the charge, he claimed that registration was a "mistake" by the PRA.

Tanager argued the register of titles is “conclusive” evidence of its title and Mr Kane could not challenge its title.

Giving the COA judgment on Wednesday, Ms Justice Marie Baker said the public interest in having the issues decided "cannot be denied" as there were some 1,768 registrations of onward transfers of former BOSI charges where BOS was not previously registered as owner. Most transfer applications involve Tanager.

The court's decision is also important for the general practice of the Property Registration Authority (PRA), she added.

She said the case essentially concerned the interplay between Section 64 and Section 90 of the Registration of Title Act 1964. Section 64 deals with the means by which title to a registered charge may be assured.

Section 90 confers powers on a person, on whom the right to be registered as owner of a charge has passed in prescribed circumstances, to assure or charge that interest before registration of their title has been completed.

She ruled, having regard to the conclusiveness of the register of titles as evidence of title, Mr Kane was not entitled to challenge the registration of Tanager as owner of the charge.

She also ruled the PRA could not be joined to the case for the purpose of hearing further argument from it about entering Tanager as owner of the charge.

It was not open to Mr Kane to argue that the circumstances in which Tanager became owner of the registered charge amounted to a "mistake" within the meaning of the 1964 Act, she held.

When considering the validity of the registration of Tanager as owner of the charge, the provisions of Section 90 of the 1964 Act apply to the transfer by BOS of the charge to Tanager as the party entitled to be registered as owner of the charge, she further held.

That last issue had not previously been addressed in any previous judgment of the superior courts, the judge believed.

The case arises from a March 2006 mortgage granted to Mr Kane by BOSI. After BOSI merged on December 31st 2010 into BOS, BOS sold a portfolio of securities to Tanager, including Mr Kane’s mortgage.

Tanager became registered on April 25th 2014 as the owner of the charge previously registered in favour of BOSI.

After alleging Mr Kane had fallen into arrears on mortgage repayments, the fund moved in early 2015 for repossession of his home.

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