Irish Law Reform Commission Papers and Reports

that any description of unregistered land sufficient to identify it with

reasonable certainty may be used in a judgment mortgage affidavit

(paragraph 2.27).

as to whether there is a need for a statutory requirement to state the

precise amount of costs awarded on the judgment mortgage affidavit

(paragraph 2.34).

that the primary purpose of registration of a judgment mortgage is

not to inform outsiders of the amount of the judgment but rather to

inform them that the debtor's property is encumbered, there is little

practical benefit in having an explicit statutory requirement that the

judgment creditor state the amount of the judgment and in particular

to state the interest and costs (paragraph 2.40).

judgment mortgages is too narrow a basis upon which to attempt to

address the Supreme Court decision in Tempany v Hynes. All

aspects of Tempany v Hynes will be the subject of general review in

the context of the Commission's project for the reform of

conveyancing law currently underway (paragraph 2.48).

clarify that a judgment creditor need not renew the judgment

mortgage every five years (paragraph 2.50).

when an action accrues as referred to in section 32 of the Statute of

Limitations 1957, it should be clarified by legislation that, in relation

to judgment mortgages, this means from the date when judgment is

START OF PAGE 64

marked, not the date when the judgment mortgage affidavit is

registered (paragraph 2.52).

necessary, of section 291 of the Companies Act 1963 and its

replacement with a provision to the effect that a judgment mortgage

registered against an interest in land held by a company should enjoy

priority as if it were a consensually created security (paragraph

2.65).

Bankruptcy Act 1988 be amended in order to preserve the priority of

a judgment mortgage in bankruptcy and that the provision does not

apply to a judgment creditor who has duly registered his judgment as

a mortgage (paragraph 2.67).

should be subject to the same registration requirements as applied to

the other forms of security set out in section 99 of the Companies Act

1963. Accordingly failure by the judgment creditor to register

particulars of the charge within 21 days of its creation should render

the judgment mortgage void as against a liquidator and other

creditors of the company (paragraph 2.73).

beneficial interest of a beneficiary under a trust for sale of land is

capable of being made the subject of a judgment mortgage

(paragraph 2.75).

to protecting the interests of prior encumbrancers through the

mechanism of a statutory hearing to consider ordering sale and a

provision stating explicitly that the judgment creditor holds the

proceeds of sale to the account of all encumbrancers with a prior

interest in the property as of the date of sale (paragraph 2.77).

Chapter 4 Proposals for General Reform

be maintained in the Land Registry and the Registry of Deeds as

appropriate, with regard primarily to the property, rather than being

replaced by a central register of judgments referable to the names

and addresses of judgment debtors (paragraph 4.05).

START OF PAGE 65

provide that a judgment creditor be automatically entitled to choose

to enforce an unsatisfied judgment by way of judgment mortgage

(paragraph 4.08).

costs and/or interest decreed need not be stated but can be verified

later by a supplemental form or affidavit (paragraph 4.11).

regards identification of the judgment debtor should be capable of

rectification and should not affect the validity of the judgment

mortgage (paragraph 4.14).

be identified with reasonable precision and that any innocent error,

misdescription or absence of detail should be capable of rectification

and should not affect the inherent validity of the judgment mortgage

(paragraph 4.16).

having the status of a statutory declaration, should be promulgated

by Rules of Court setting out the necessary particulars, including the

parties to the action and details of the property to be subject to the

judgment mortgage sufficient to identify it (paragraph 4.18).

should be asked to indicate on the form of application whether, to the

best of his knowledge or belief, the property is a residential dwelling

(paragraph 4.19).

legislation that a judgment creditor can apply for registration of the

judgment mortgage notwithstanding that the judgment debtor has

obtained a stay on the execution of the judgment by order of the

court (paragraph 4.21).

provided to operate as a charge by the judgment debtor over the

property and the charge shall be deemed to have been granted for

valuable consideration save for the purposes of the Family Home

Protection Act 1976 (paragraph 4.22).

that a registered judgment mortgage has priority over (a) all later

START OF PAGE 66

registered judgment mortgages and (b) all later encumbrances

whether registered or not. However the registered judgment

mortgage should not have priority over any previous charges or

equitable interests, whether registered or not (paragraphs 4.22 and

4.23).

should 'travel with the land' and should bind all subsequent

purchasers for value and volunteers (paragraph 4.24).

judgment mortgage should constitute notice to all subsequent

encumbrancers, purchasers and volunteers (paragraph 4.25).

should have all the rights of a chargee who has provided

consideration but that, given the practical difficulties of providing

for enforcement of sale without a hearing to declare the property

well charged with the judgment mortgage, the existing system

whereby the judgment mortgagee proceeds by way of mortgage suit

should continue (paragraph 4.28).

that the mere fact that a contract of mortgage or loan is terminated

before its due date should not be a sufficient reason on its own for a

court to refuse an order for sale pursuant to a judgment mortgage

(paragraph 4.31).

registered against a company, and an individual, should, subject to

section 284(2) of the Companies Act 1963 and section 51 of the

Bankruptcy Act 1988, enjoy the same priority as if the judgment

mortgage were a validly created charge for valuable consideration

(paragraph 4.34).

Companies Acts 1963, which deprives a judgment creditor of priority

in a liquidation if the judgment creditor has not seized the land or

appointed a receiver, should be repealed (paragraph 4.35).

Companies Act 1963 should be amended so that there is a duty on a

judgment creditor to register a judgment mortgage in the same

manner as a charge under section 99 of the Companies Act 1963.

Failure to register the judgment mortgage should render the

START OF PAGE 67

judgment mortgage void as against any liquidator or other creditor of

the company (paragraph 4.36).

possible to register a judgment mortgage over the proceeds of sale of

an equitable interest, as well as an equitable interest itself (paragraph

4.37).

judgment should not inhibit the ability of the plaintiff immediately to

register a judgment mortgage save where the court makes an explicit

order restraining such registration (paragraph 4.39).

the effect that a judgment creditor who has effected a sale holds the

proceeds for the account of any prior encumbrancers (paragraph

4.40).

Chapter 5 Judgment Mortgages Over the Family Home

amended to provide that the consent of a non-owning spouse be

required for the purposes of registration of a judgment mortgage but

rather proposes that no order for sale of a family home pursuant to a

judgment mortgage should be possible unless the court so orders

(paragraph 5.06).

family home, the Commission recommends that a judgment

mortgage should be subject to any prior legal or equitable rights.

The Commission also recommends that the position should be the

same whether title to the land is registered or unregistered

(paragraph 5.10).

made that a family home be sold without the approval of the court.

Furthermore, a judgment creditor having registered a judgment

mortgage over any other type of property would have to apply to

court for an order for sale of the property (paragraph 5.17).

be applied in a situation where the property is co-owned by the

judgment debtor and his or her spouse. In exercising its discretion

legislation should provide that the court take into account the

following:

START OF PAGE 68

(i) the financial means of the judgment creditor;

(ii) the financial means of the non-debtor owner;

(iii) the financial means of the family of the non-debtor

owner residing in the property;

(iv) whether, upon a sale of the property, sufficient

proceeds would be available to the non-debtor owner to

purchase reasonably similar accommodation in the same

locality;

(v) the amount of the judgment mortgage as a proportion

of the value of the property;

(vi) the ability of the judgment debtor to provide

reasonable alternative accommodation from the proceeds of

sale of the property;

(vii) any other matters which seem relevant to the court

(paragraph 5.19).

statute that should any party object to the sale of the property by the

judgment mortgagee, that party should adduce evidence as to the

current value of the property (paragraph 5.21).

Chapter 6 Severance of Joint Tenancies

mortgage on a joint tenancy should be the same whether the property

is registered or unregistered (paragraph 6.12).

operation of unilateral severance and accordingly recommends that

the law be amended so that registration of a judgment mortgage

should not effect a severance (paragraph 6.16).

no longer apply to judgment mortgages and that new legislation

should set out the guidelines to be applied by the court when

considering whether to order a sale (paragraph 6.19).

START OF PAGE 69

APPENDIX LIST OF LAW REFORM COMMISSION

PUBLICATIONS

First Programme for Examination of

Certain Branches of the Law with a

View to their Reform (December

1976) (Prl 5984)

€0.13

Working Paper No 1-1977, The Law

Relating to the Liability of Builders,

Vendors and Lessors for the Quality

and Fitness of Premises (June 1977)

€1.40

Working Paper No 2-1977, The Law

Relating to the Age of Majority, the

Age for Marriage and Some

Connected Subjects (November 1977)

€1.27

Working Paper No 3-1977, Civil

Liability for Animals (November

1977)

€3.17

First (Annual) Report (1977) (Prl

6961)

€0.51

Working Paper No 4-1978, The Law

Relating to Breach of Promise of

Marriage (November 1978)

€1.27

START OF PAGE 70

Working Paper No 5-1978, The Law

Relating to Criminal Conversation

and the Enticement and Harbouring of

a Spouse (December 1978)

€1.27

Working Paper No 6-1979, The Law

Relating to Seduction and the

Enticement and Harbouring of a Child

(February 1979)

€1.90

Working Paper No 7-1979, The Law

Relating to Loss of Consortium and

Loss of Services of a Child (March

1979)

€1.27

Working Paper No 8-1979, Judicial

Review of Administrative Action: the

Problem of Remedies (December

1979)

€1.90

Second (Annual) Report (1978/79)

(Prl 8855)

€0.95

Working Paper No 9-1980, The Rule

Against Hearsay (April 1980)

€2.54

Third (Annual) Report (1980) (Prl

9733)

€0.95

First Report on Family Law –

Criminal Conversation, Enticement

and Harbouring of a Spouse or Child,

Loss of Consortium, Personal Injury

to a Child, Seduction of a Child,

Matrimonial Property and Breach of

Promise of Marriage (LRC 1-1981)

(March 1981)

€2.54

START OF PAGE 71

Working Paper No 10-1981,

Domicile and Habitual Residence as

Connecting Factors in the Conflict of

Laws (September 1981)

€2.22

Fourth (Annual) Report (1981) (Pl

742)

€0.95

Report on Civil Liability for Animals

(LRC 2-1982) (May 1982)

€1.27

Report on Defective Premises (LRC

3-1982) (May 1982)

€1.27

Report on Illegitimacy (LRC 4-1982)

(September 1982)

€4.44

Fifth (Annual) Report (1982) (Pl

1795)

€0.95

Report on the Age of Majority, the

Age for Marriage and Some

Connected Subjects (LRC 5-1983)

(April 1983)

€1.90

Report on Restitution of Conjugal

Rights, Jactitation of Marriage and

Related Matters (LRC 6-1983)

(November 1983)

€1.27

Report on Domicile and Habitual

Residence as Connecting Factors in

the Conflict of Laws (LRC 7-1983)

(December 1983)

€1.90

Report on Divorce a Mensa et Thoro

and Related Matters (LRC 8-1983)

(December 1983)

€3.81

Sixth (Annual) Report (1983) (Pl

2622)

€1.27

START OF PAGE 72

Report on Nullity of Marriage (LRC

9-1984) (October 1984)

€4.44

Working Paper No 11-1984,

Recognition of Foreign Divorces and

Legal Separations (October 1984)

€2.54

Seventh (Annual) Report (1984) (Pl

3313)

€1.27

Report on Recognition of Foreign

Divorces and Legal Separations (LRC

10-1985) (April 1985)

€1.27

Report on Vagrancy and Related

Offences (LRC 11-1985) (June 1985)

€3.81

Report on the Hague Convention on

the Civil Aspects of International

Child Abduction and Some Related

Matters (LRC 12-1985) (June 1985)

€2.54

Report on Competence and

Compellability of Spouses as

Witnesses (LRC 13-1985) (July 1985)

€3.17

Report on Offences Under the Dublin

Police Acts and Related Offences

(LRC 14-1985) (July 1985)

€3.17

Report on Minors' Contracts (LRC

15-1985) (August 1985)

€4.44

Report on the Hague Convention on

the Taking of Evidence Abroad in

Civil or Commercial Matters (LRC

16-1985) (August 1985)

€2.54

START OF PAGE 73

Report on the Liability in Tort of

Minors and the Liability of Parents for

Damage Caused by Minors (LRC 17-

1985) (September 1985)

€3.81

Report on the Liability in Tort of

Mentally Disabled Persons (LRC 18-

1985) (September 1985)

€2.54

Report on Private International Law

Aspects of Capacity to Marry and

Choice of Law in Proceedings for

Nullity of Marriage (LRC 19-1985)

(October 1985)

€4.44

Report on Jurisdiction in Proceedings

for Nullity of Marriage, Recognition

of Foreign Nullity Decrees, and the

Hague Convention on the Celebration

and Recognition of the Validity of

Marriages (LRC 20-1985) (October

1985)

€2.54

Eighth (Annual) Report (1985) (Pl

4281)

€1.27

Report on the Statute of Limitations:

Claims in Respect of Latent Personal

Injuries (LRC 21-1987) (September

1987)

€5.71

Consultation Paper on Rape

(December 1987)

€7.62

Report on the Service of Documents

Abroad re Civil Proceedings -the

Hague Convention (LRC 22-1987)

(December 1987)

€2.54

Report on Receiving Stolen Property

(LRC 23-1987) (December 1987)

€8.89

START OF PAGE 74

Ninth (Annual) Report (1986-1987)

(Pl 5625)

€1.90

Report on Rape and Allied Offences

(LRC 24-1988) (May 1988)

€3.81

Report on the Rule Against Hearsay

in Civil Cases (LRC 25-1988)

(September 1988)

€3.81

Report on Malicious Damage (LRC

26-1988) (September 1988)

€5.08

Report on Debt Collection: (1) The

Law Relating to Sheriffs (LRC 27-

1988) (October 1988)

€6.35

Tenth (Annual) Report (1988) (Pl

6542)

€1.90

Report on Debt Collection: (2)

Retention of Title (LRC 28-1988)

(April 1989)

€5.08

Report on the Recognition of Foreign

Adoption Decrees (LRC 29-1989)

(June 1989)

€6.35

Report on Land Law and

Conveyancing Law: (1) General

Proposals (LRC 30-1989) (June 1989)

€6.35

Consultation Paper on Child Sexual

Abuse (August 1989)

€12.70

Report on Land Law and

Conveyancing Law: (2) Enduring

Powers of Attorney (LRC 31-1989)

(October 1989)

€5.08

START OF PAGE 75

Eleventh (Annual) Report (1989) (Pl

7448)

€1.90

Report on Child Sexual Abuse (LRC

32-1990) (September 1990)

€8.89

Report on Sexual Offences against the

Mentally Handicapped (LRC 33-

1990) (September 1990)

€5.08

Report on Oaths and Affirmations

(LRC 34-1990) (December 1990)

€6.35

Report on Confiscation of the

Proceeds of Crime (LRC 35-1991)

(January 1991)

€7.62

Consultation Paper on the Civil Law

of Defamation (March 1991)

€25.39

Report on the Hague Convention on

Succession to the Estates of Deceased

Persons (LRC 36-1991) (May 1991)

€8.89

Twelfth (Annual) Report (1990) (Pl

8292)

€1.90

Consultation Paper on Contempt of

Court (July 1991)

€25.39

Consultation Paper on the Crime of

Libel (August 1991)

€13.97

Report on the Indexation of Fines

(LRC 37-1991) (October 1991)

€8.25

Report on the Civil Law of

Defamation (LRC 38-1991)

(December 1991)

€8.89

START OF PAGE 76

Report on Land Law and

Conveyancing Law: (3) The Passing

of Risk from Vendor to Purchaser

(LRC 39-1991) (December 1991); (4)

Service of Completion Notices (LRC

40-1991) (December 1991)

€7.62

Thirteenth (Annual) Report (1991) (PI

9214)

€2.54

Report on the Crime of Libel (LRC

41-1991) (December 1991)

€5.08

Report on United Nations (Vienna)

Convention on Contracts for the

International Sale of Goods 1980

(LRC 42-1992) (May 1992)

€10.16

Report on the Law Relating to

Dishonesty (LRC 43-1992)

(September 1992)

€25.39

Land Law and Conveyancing Law:

(5) Further General Proposals (LRC

44-1992) (October 1992)

€7.62

Consultation Paper on Sentencing

(March 1993)

€25.39

Consultation Paper on Occupiers'

Liability (June 1993)

€12.70

Fourteenth (Annual) Report (1992)

(PN 0051)

€2.54

Report on Non-Fatal Offences

Against The Person (LRC 45-1994)

(February 1994)

€25.39

Consultation Paper on Family Courts

(March 1994)

€12.70

START OF PAGE 77

Report on Occupiers' Liability (LRC

46-1994) (April 1994)

€7.62

Report on Contempt of Court (LRC

47-1994) (September 1994)

€12.70

Fifteenth (Annual) Report (1993) (PN

1122)

€2.54

Report on the Hague Convention

Abolishing the Requirement of

Legalisation for Foreign Public

Documents (LRC 48-1995) (February

1995)

€12.70

Consultation Paper on Intoxication as

a Defence to a Criminal Offence

(February 1995)

€12.70

Report on Interests of Vendor and

Purchaser in Land during the period

between Contract and Completion

(LRC 49-1995) (April 1995)

€10.16

An Examination of the Law of Bail

(LRC 50-1995) (August 1995)

€12.70

Sixteenth (Annual) Report (1994) (PN

1919)

€2.54

Report on Intoxication (LRC 51-

1995) (November 1995)

€2.54

Report on Family Courts (LRC 52-

1996) (March 1996)

€12.70

Seventeenth (Annual) Report (1995)

(PN 2960)

€3.17

START OF PAGE 78

Report on Sentencing (LRC 53-1996)

(August 1996)

€10.16

Consultation Paper on Privacy:

Surveillance and the Interception of

Communications (September 1996)

€25.39

Report on Personal Injuries: Periodic

Payments and Structured Settlements

(LRC 54-1996) (December 1996)

€12.70

Eighteenth (Annual) Report (1996)

(PN 3760)

€7.62

Consultation Paper on the

Implementation of The Hague

Convention on Protection of Children

and Co-operation in Respect of

Intercountry Adoption, 1993

(September 1997)

€12.70

Report on The Unidroit Convention

on Stolen or Illegally Exported

Cultural Objects (LRC 55-1997)

(October 1997)

€19.05

Report on Land Law and

Conveyancing Law; (6) Further

General Proposals including the

execution of deeds (LRC 56-1998)

(May 1998)

€10.16

Consultation Paper on Aggravated,

Exemplary and Restitutionary

Damages (May 1998)

€19.05

Nineteenth (Annual) Report (1997)

(PN 6218)

€3.81

START OF PAGE 79

Report on Privacy: Surveillance and

the Interception of Communications

(LRC 57-1998) (June 1998)

€25.39

Report on the Implementation of the

Hague Convention on Protection of

Children and Co-operation in Respect

of Intercountry Adoption, 1993 (LRC

58-1998) (June 1998)

€12.70

Consultation Paper on the Statutes of

Limitation: Claims in Contract and

Tort in Respect of Latent Damage

(Other Than Personal Injury)

(November 1998)

€6.35

Twentieth (Annual) Report (1998)

(PN 7471)

€3.81

Consultation Paper on Statutory

Drafting and Interpretation: Plain

Language and the Law (LRC CP14-

1999) (July 1999)

€7.62

Consultation Paper on Section 2 of

the Civil Liability (Amendment) Act,

1964: The Deductibility of Collateral

Benefits from Awards of Damages

(LRC CP15-1999) (August 1999)

€9.52

Report on Gazumping (LRC 59-1999)

(October 1999)

€6.35

Twenty First (Annual) Report (1999)

(PN 8643)

€3.81

Report on Aggravated, Exemplary

and Restitutionary Damages (LRC 60-

2000) (August 2000)

€7.62

START OF PAGE 80

Second Programme for examination

of certain branches of the law with a

view to their reform: 2000-2007 (PN

9459) (December 2000)

€6.35

Consultation Paper on the Law of

Limitation of Actions arising from

Non-Sexual Abuse Of Children (LRC

CP16-2000) (September 2000)

€7.62

Report on Statutory Drafting and

Interpretation: Plain Language and

the Law (LRC 61-2000) (December

2000)

€7.62

Report on the Rule against

Perpetuities and Cognate Rules (LRC

62-2000) (December 2000)

€10.16

Report on the Variation of Trusts

(LRC 63-2000) (December 2000)

€7.62

Report on The Statutes of Limitations:

Claims in Contract and Tort in

Respect of Latent Damage (Other

than Personal Injury) (LRC 64-2001)

(March 2001)

€7.62

Consultation Paper on Homicide: The

Mental Element in Murder (LRC

CP17-2001) (March 2001)

€6.35

Seminar on Consultation Paper:

Homicide: The Mental Element in

Murder (LRC SP 1-2001)

-

Twenty Second (Annual) Report

(2000) (PN 10629)

€3.81

START OF PAGE 81

Consultation Paper on Penalties for

Minor Offences (LRC CP18-2002)

(March 2002)

€5.00

Consultation Paper on Prosecution

Appeals in Cases brought on

Indictment (LRC CP19-2002) (May

2002)

€6.00

Report on the Indexation of Fines: A

Review of Developments (LRC 65-

2002) (July 2002)

€5.00

Twenty Third (Annual) Report (2001)

(PN 11964)

€5.00

Report on the Acquisition of

Easements and Profits à Prendre by

Prescription (LRC 66-2002)

(December 2002)

€5.00

Report on Title by Adverse

Possession of Land (LRC 67-2002)

(December 2002)

€5.00

Report on Section 2 of the Civil

Liability (Amendment) Act 1964: The

Deductibility of Collateral Benefits

from Awards of Damages (LRC 68-

2002) (December 2002)

€6.00

Consultation Paper on Judicial

Review Procedure (LRC CP20-2003)

(January 2003)

€6.00

Report on Penalties for Minor

Offences (LRC 69-2003) (February

2003)

€6.00

START OF PAGE 82

Consultation Paper on Business

Tenancies (LRC CP 21 – 2003)

(March 2003)

€5.00

Report on Land Law and

Conveyancing Law: (7) Positive

Covenants over Freehold Land and

other Proposals (LRC 70 – 2003)

(March 2003)

€5.00

Consultation Paper on Public

Inquiries Including Tribunals of

Inquiry (LRC CP 22 – 2003) (March

2003)

€5.00

Consultation Paper on The Law and

the Elderly (LRC CP 23 – 2003) (June

2003)

€5.00

Consultation Paper on A Fiscal

Prosecutor and A Revenue Court

(LRC CP 24 – 2003) (July 2003)

€6.00

Consultation Paper on Multi-Party

Litigation (Class Actions) (LRC CP

25 – 2003) (July 2003)

€6.00

Consultation Paper on Corporate

Killing (LRC CP 26 – 2003) (October

2003)

€6.00

Consultation Paper on Homicide: The

Plea of Provocation (LRC CP 27 –

2003) (October 2003) €6.00

Seminar on Consultation Paper: Law

and the Elderly (LRC SP 2-2003)

(November 2003) -

Twenty Fourth (Annual) Report (2002)

(PN 1200) €5.00

START OF PAGE 83

Consultation Paper on General Law of

Landlord and Tenant (LRC CP 28 –

2003) (December 2003) €10.00

Report on Judicial Review Procedure

(LRC 71 – 2004) (February 2004) €10.00

Consultation Paper on the

Establishment of a DNA Database

(LRC CP 29 – 2004) (March 2004) €10.00