Sunday 22 September 2019

Shane Phelan: 'Nothing in the family homes bill that is new, warn lawyers'


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Shane Phelan

Shane Phelan

There has been a decidedly cool reception in legal and economic circles to proposed legislation that would, in theory, make it more difficult for courts to grant possession orders for family homes.

In some quarters, the plan has been dismissed as a knee-jerk reaction to recent events in Co Roscommon. In others, it is being seen as a waste of time as it will not really change anything about the way courts deal with applications for possession.

Speaking in the Dáil on Wednesday night, Justice Minister Charlie Flanagan laid out what is being proposed in the Land and Conveyancing Law Reform (Amendment) Bill. Under the bill, a court considering an application for a possession order in respect of a borrower's principal private residence would, in addition to existing considerations, have regard to a number of factors.

These would include whether such an order would be proportionate, the circumstances of the borrower and his or her dependants, and the conduct of the parties, including the conduct of the lender towards the borrower in any attempt to find a resolution on arrears.

The charge that this is a knee-jerk reaction is perhaps wide of the mark as the proposed legislation has been discussed by the Cabinet as far back as May. But the view it will not really change anything may well be accurate.

The bill has its genesis in the Keeping People in Their Homes Bill introduced by Independent Alliance TD and Junior Minister Kevin 'Boxer' Moran.

The Attorney General shot down aspects of that bill as they were unconstitutional.

This led the Justice Department to develop an alternate approach to addressing Mr Moran's concerns without falling foul of the Constitution.

A number of lawyers spoken to by the Irish Independent were dismissive of the proposals. One barrister said it would simply codify existing practices.

"All four things the minister identified in his speech, they are all being done already," the barrister said. "For example, if the borrower says their wife or children are sick, the court is not going to ignore that. They will grant an adjournment rather that granting a possession order."

Similarly, affidavits are filed setting out the positions of the borrower and the lender, usually in considerable detail.

The court considers a statement of means and whether the lender has complied with the Central Bank's code of conduct for mortgage arrears.

Seamus Coffey, the UCC economics lecturer and chairman of the Irish Fiscal Advisory Council, was also dismissive of the bill. He said he had attended 40 or 50 repossession court hearings and the factors outlined in the bill were already being considered by judges.

"That is why I don't think it will change anything," he said. "It is very, very difficult to get a possession order. Given how difficult it already is, it will be an achievement to make it any harder."

Irish Independent

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