Dáil Éireann Debate, Tuesday - 18 October 2016
140. Deputy Dessie Ellis asked the Tánaiste and Minister for Justice and Equality if she will intervene and request receivers to agree to cease giving notice to those occupying repossessed properties until a sale is agreed, rather than once it goes on sale as is the common practice. [30550/16]
View answerAs regards the appointment of receivers to property, the position is that such an appointment may be made under company law or land and conveyancing law. Relevant provisions in the Land and Conveyancing Law Reform Act 2009 apply in the case of for mortgages created after 1 December 2009, while broadly similar provisions in the Conveyancing Act 1881 apply to mortgages created prior to that date. Apart from these statutory powers enshrined in the 2009 and 1881 Acts, the legal instruments which create mortgages usually contain 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.
When it comes to exercising the power of sale, the law imposes on the mortgagee, and any receiver appointed by the mortgagee, a duty of care to ensure as far as is reasonably practicable that the mortgaged property is sold at the best price reasonably obtainable. This obligation to act in good faith in the interests of a distressed borrower, which is now set out in section 103 of the Land and Conveyancing Law Reform Act 2009, is reflective of earlier case law. Depending on the circumstances and the nature of the property, achieving the best price reasonable obtainable may require vacant possession of the property and this has also been recognised by the courts. It would not, therefore, be appropriate for me in my capacity as Minister for Justice and Equality to intervene in a manner which might adversely impact on the interests of distressed borrowers whose property is being sold by mortgagees or receivers appointed by them. Rules applicable to the giving of notice of sale to tenants in such cases vary according to the type of tenancy, including those which fall within the scope of the Residential Tenancies Act 2004.
