Dáil Éireann Debate, Tuesday - 14 June 2016
110. Deputy Michael McGrath asked the Tánaiste and Minister for Justice and Equality the rules that apply to the charging of fees by receivers appointed under land and conveyancing legislation; the qualifications that are necessary for a person to act as a receiver; the circumstances in which receivers are appointed and regulated; the information the borrower is entitled to; and if she will make a statement on the matter. [15509/16]
View answerThe position is that the Companies Act 2014, which entered into force on 1 June 2015, has updated and codified company law in this jurisdiction. The Act continues to provide a range of possible remedies for debenture holders and lending institutions in the event of a borrower encountering financial difficulties. These include an examinership process, appointment of a receiver and liquidation in those cases in which a company is beyond rescue. The Act includes detailed provisions which regulate the appointment and the powers of examiners, receivers and liquidators respectively. However, the 2014 Act does not specify any regulatory standards for the appointment of a receiver.
The Company Law Review Group is a statutory body which advises the Minister for Jobs, Enterprise and Innovation on the review and development of company law in this jurisdiction. As part of its Work Programme 2014 – 2016, the Review Group is examining whether it is desirable or necessary to further amend the law in light of developments in case law or any submissions received on matters which have not been addressed in the 2014 Act.
As regard to the appointment of a receiver to property, the position is that such an appointment may arise under company law or land and conveyancing law: relevant provisions in the Land and Conveyancing Law Reform Act 2009 for mortgages created after 1 December 2009, and broadly similar provisions in the Conveyancing Act 1881 for mortgages created prior to that date. Apart from the statutory powers enshrined in the 2009 and 1881 Acts, instruments creating a mortgage usually contains broader contractual terms between the parties in relation to appointment of a receiver and any additional powers which he or she may exercise on appointment.
Section 108(7) of the 2009 Act, which is based on a broadly similar provision in the 1881 Act, provides that a receiver may retain out of any money received, for remuneration and in satisfaction of all costs incurred as receiver, a commission at the prescribed rate. The Land and Conveyancing Law Reform Act 2009 (Section 108) Regulations 2009 - S.I. No. 655 of 2010 - provides that the rate of commission may not exceed five per cent of the gross amount of any money received. This applies in particular in the case of housing loan mortgages. The Companies Act 2014 Act contains provisions concerning the information which must be given on the appointment of a receiver and the manner in which the remuneration of a receiver may be fixed by the Court.
