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Act enables courts to consider alternative solutions for distressed debtors
Dr Padraic Kenna, Kevin (Boxer) Moran TD and Eugene Deering

02 Aug 2019 / legislation Print

Act gives courts alternative  for distressed debtors

Legislation developed by the School of Law at NUI Galway has been passed by the Oireachtas. 

The Land and Conveyancing Law Reform (Amendment) Act 2019 enables courts to consider better solutions for distressed mortgagees. 

The act has its genesis in the Keeping People in their Homes Bill, which was introduced in the Dáil in 2017 by Minister of State, Kevin ‘Boxer’ Moran.

This legislation was originally inspired and drafted by Dr Padraic Kenna, senior lecturer in housing and property law at NUI Galway, and alumnus Eugene Deering who acted as special advisor to Minister Moran.

It followed extensive research at the Centre for Housing Law, Rights and Policy Research in NUI Galway and discussions with Department of Justice officials. 

Key provisions

The original bill contained the key provisions of the new act, including the critical ‘proportionality test’ – finding the outcome involving least interference with rights of respect for home, and taking into account the circumstances of all household members, advocated by Dr Kenna and Mr Deering.

Dr Padraic Kenna, School of Law, NUI Galway, said: “This legislation builds on existing Government initiatives designed to assist people in mortgage distress, and reflects Government policy of keeping people in their homes, and ensures that the circumstances of everyone living in the home, including children, are fully considered in mortgage possession cases.” 

Minister of State, Kevin ‘Boxer’ Moran presented and advanced the act in the Oireachtas.

The passage of the legislation was facilitated by officials in the Department of Justice and Equality, former minister Frances Fitzgerald (now MEP), and current minister Charles Flanagan.

It was also supported by Jim O’ Callaghan TD, Fianna Fáil justice spokesman, and passed by agreement of all TDs in July.

The legislation enables a court or registrar to consider whether the making of a possession order would be proportionate in all the circumstances, whether the lender has put forward a statement to the borrower that would enable the borrower and their dependants to remain in the home and settle the matter, and “additional matters it thinks appropriate”.

Borrower circumstances

The court must now also consider the circumstances of the borrower and any dependants living in the home. This will include the circumstances of any children, and persons with a disability.

The new act also enables a court or registrar to consider any proposal made by the borrower to the lender, which would allow him/her and any dependants to remain in the home, or to secure alternative accommodation – as well as the response of the lender to that proposal.

The court will be able to review the conduct of the mortgage lender, as well as the borrower, in their attempts to find a resolution.

Significant development

Dr Charles O’Mahony, Head of the School of Law at NUI Galway, said: “This significant legislative development will enable Irish courts to fully consider the circumstances of those at risk of losing their home.

"It was inspired and drafted originally in the School of Law, following detailed research on EU developments, and clearly demonstrates the impact of our research and engagement at NUI Galway’s School of Law.” 

 

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