Tuesday, 8 October 2019

Questions (169)

Michael McGrath


169. Deputy Michael McGrath asked the Minister for Business, Enterprise and Innovation if she is satisfied that there are adequate obligations on the receiver appointed in respect of residential properties to maximise the value of assets being sold on the open market; her plans to strengthen the law in this area; and if she will make a statement on the matter. [40542/19]

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Written answers (Question to Business)

Receivership is a remedy that derives from courts of equity. The relevant law in relation to receivership is largely made up of rules which the courts have developed by applying general contract law and equitable principles. Receivers are appointed under a relevant security e.g. a mortgage or a charge which contains the contractual terms in relation to their appointment and their powers under the instrument.

Receivers can also be appointed over property under the Land and Conveyancing Law Reform Act 2009 in the case of mortgages created after 1 December 2009, and the Conveyancing Act 1881 for mortgages created prior to that date. This legislation falls within the remit of the Department of Justice and Equality.

The Companies Act 2014 contains provisions in relation to the receiver of the property of a company. The Act does not have application in relation to the appointment of receivers to properties owned by natural persons or other types of entity.

Section 437 of the Companies Act 2014 confers statutory powers on receivers and is intended to alleviate many of the problems which may arise from poorly drafted debentures. However, section 437 (4) makes clear that these powers are limited by any provision in the instrument under which the receiver was appointed, again underlying the essentially contractual nature of receivership.

A receiver will have the right to secure and sell the property the subject of the debenture so that the debt to the lender can be repaid. However, section 437(5) of the Act provides that the conferral of powers in relation to the property of a company does not affect any rights in relation to that property of any other person.

When selling the property of a company, a receiver has specific statutory duties under section 439 of the Companies Act 2014 which provides that:

(i) receivers must achieve the best price reasonably obtainable at the time of sale; and

(ii) the receiver must not sell by private contract a non-cash asset of requisite value to a person who is or who, within three years prior to the date of appointment of the receiver, has been, an officer of the company unless the Receiver has given 14 days’ notice of his or her intention to do so to all creditors of the company who are known to him or her or who have been intimated to him or her.

These statutory duties make it imperative that the receiver obtains expert legal and valuation advice in relation to the sale of property, consistent with the duty “to obtain the best price reasonably obtainable”. Breach of a receiver’s statutory duties may result in the receiver being held personally liable for any loss incurred. Civil proceedings may be brought to enforce this duty.

I consider that these statutory obligations on receivers when selling charged assets are sufficient.