The Supreme Court has ruled the Mahon tribunal may not pursue the estate of Liam Lawlor in a bid to recover legal costs awarded against the late TD to the tribunal.
The court today ruled the estate and Mr Lawlor’s widow, Hazel, are not liable for judgment mortgages obtained in 2002 and 2004 by the tribunal against lands in Lucan, including the Lawlor family home, Somerton House.
In July 2008, the High Court had ruled the couple’s joint ownership or joint tenancy had not been severed on the death of Mr Lawlor as a result of a car crash in Moscow in October 2005.
Ms Lawlor and her husband’s estate had brought the High Court proceedings arguing the joint tenancy had not been severed and therefore Ms Lawlor was the sole owner of the lands by right of survivorship and the lands were free from judgment mortgages.
In July 2008, Ms Justice Mary Laffoy upheld those claims and the Mahon tribunal then appealed to the Supreme Court.
Today, the three judge Supreme Court unanimously dismissed the appeal
Mr Justice Joseph Finnegan, with whom Ms Justice Susan Denham and Mr Justice Donal O’Donnell agreed, delivered the court’s judgment and observed it was “to be regretted” that the recent Land and Conveyancing Law Reform Act 2009, which made significant changes to the relevant law, had not been of more assistance.
It would be of assistance to the courts and to those advising judgment creditors and judgment debtors if the 2009 Act gave guidance concerning the basis for, and circumstances in which, the courts would exercise a discretion provided for under the new law, he said.
That discretion, set out in Section 31(3) of the Act, allows a court to make an order with or without conditions, to dismiss an application without making an order or to combine more than one order relating to an estate or anyone having an interest in land.
Section 117 of the Act, which deals with the effect of registration of a judgment mortgage, “does not make any clearer” the basis upon which the courts should exercise that discretion, the judge said.
It was “to be regretted” the opportunity presented by the 2009 Act for clarifying fully the reliefs and remedies available to a judgment creditor for the benefit of both the judgment creditor and judgment debtor was not availed of by the legislature, he added.
Earlier, Mr Justice Finnegan said the effect of the Registration of Title Act 1964 is that registration of judgment mortgages against the interest of a joint tenant does not effect severance of the joint tenancy as it operates as a charge only, not as a mortgage. This did not have the effect of divesting a joint tenant of their interest.
Section 62 and 71(4) of the 1964 Act distinguishes between charges created by a registered owner and judgment mortgages, he also said. A judgment creditor’s remedy - to enforce a charge - was not as a mortgagee. A judgment creditor rather has such rights and remedies as may be conferred by the court, the judge said.
On the question of whether a judgment mortgage continues to affect lands after the death of a joint tenant, the judge said lands accrue to a surviving joint tenant by virtue of the original grant of title. This was a right of survivorship and not by descent and therefore the survivor is entitled to the entire estate, he said.
Any charge previously created on the deceased’s interest, in the absence of severance, ceased to affect the land on the death of the tenant and the surviving tenant takes it free of any charge over it, he said