Mortgages and repossession in Irish land law

The principle

A mortgage secures a debt: the lender is the mortgagee, the borrower the mortgagor.

Creating a mortgage

In Bank of Ireland Mortgage Bank v Cody [2021] IESC 26 IE · Supreme Court Baker J explained that a mortgagee of unregistered land takes an assurance of the legal title, and the legal estate carries the right to possession, whereas over registered land the security is a charge, with no conveyance or transfer of the estate to the lender.

Section 89 of the Land and Conveyancing Law Reform Act 2009 allows one method only: from 1 December 2009 a charge by deed, for unregistered and registered land alike. Section 89(7) makes a purported Welsh mortgage void; s.89(6) preserves equitable mortgages. For registered land, section 62(2) of the Registration of Title Act 1964 as amended requires an instrument of charge in the prescribed form, conferring no interest until registration; s.62(6) then makes it a Part 10 legal mortgage with power of sale.

Equitable mortgages

In Promontoria (Oyster) DAC v Hannon [2019] IESC 49 IE · Supreme Court Clarke CJ held that the Registration of Deeds and Title Act 2006 brought the system of liens by deposit of a land certificate over registered land to a complete end once the three-year transitional period in section 73(3) expired at the end of 2009. Deposits of title deeds to unregistered land are not affected.

The equity of redemption and clogs on it

A mortgagor who missed the legal redemption date kept an equitable right to redeem; that right, with the borrower's other retained rights, is the equity of redemption.

Redemption must return the property free of the mortgage's conditions, so equity will not enforce a clog or fetter. In Browne v Ryan [1901] 2 IR 653 IE · pre-1922 the borrower also agreed to sell the land within a year through the mortgagee, an auctioneer, or pay him five per cent commission; that was void as a fetter. Section 92 of the 2009 Act is the statutory version: a housing loan mortgage may be redeemed without paying money due under another mortgage to the same mortgagee.

The mortgagee's remedies

Under section 96 the powers vest on creation, are exercisable only to protect the property or realise the security, and bind a housing loan mortgage whatever its terms. Section 96(2) abolishes foreclosure.

Possession. Section 97(1) bars possession without a court order unless the mortgagor consents in writing not more than seven days beforehand; s.97(2) lets the court order possession on terms it thinks fit. In possession, s.99(1) requires sale under section 100 within a reasonable time, or a lease under section 112 with the rent applied to the debt; s.99(2) disapplies section 34 of the Statute of Limitations 1957.

Sale and receiver. Section 100(1) carries across three preconditions from the Conveyancing Act 1881 — three months' default after a notice requiring payment, interest two months unpaid, or breach of some other provision — and adds 28 days' notice in the prescribed form. Under s.100(2) the power of sale is not exercisable without a court order under s.100(3) unless the mortgagor consents in writing not more than seven days beforehand; s.105(2) gives damages for improper exercise. Section 108 allows a receiver on the same preconditions; section 113 requires any lease to reserve the best rent reasonably obtainable.

The repossession gap and the 2013 Act

Part 10 reaches only mortgages created on or after 1 December 2009; earlier ones stayed with the Conveyancing Acts 1881 to 1911 and the 1964 Act, where a gap opened. A registered chargeholder's summary right to possession sat in section 62(7) of the Registration of Title Act 1964. Section 8 of the 2009 Act repealed it, leaving lenders to rely on section 27 of the Interpretation Act 2005, which saves rights already acquired or accrued. In Start Mortgages Ltd v Gunn [2011] IEHC 275 IE · High Court Dunne J held that after the repeal a chargeholder could not seek summary possession unless the principal had become due before 1 December 2009, which required default and a demand for repayment of the principal before that date.

Each pre-2009 case turned on the mortgage's wording. In EBS Limited v Gillespie [2012] IEHC 243 IE · High Court Laffoy J held that, under the terms of that charge, default alone had made all the secured money payable and the security enforceable before 1 December 2009, so no prior demand was needed and possession was ordered. In GE Capital Woodchester Homeloans Limited v Reade [2012] IEHC 363 IE · High Court Laffoy J dismissed the claim because the letters relied on had not, under the charge, made the balance payable; in ACC Bank v Fagan (A Bankrupt) [2013] IEHC 346 IE · High Court Finlay Geoghegan J refused possession because no demand had been made before 1 December 2009.

Section 1 of the Land and Conveyancing Law Reform Act 2013 closed the gap: for a mortgage created before 1 December 2009 the repealed and amended provisions apply as if untouched. Section 1(5) excludes proceedings begun earlier, and section 4 treats possession proceedings re-issued within six months as brought in time under section 9 of the Civil Liability Act 1961, where earlier proceedings on the same land were still pending.

Possession of a principal private residence

Section 3 of the 2013 Act sends possession proceedings over a principal private residence to the Circuit Court where the mortgage predates 1 December 2009. Section 2 lets the court adjourn for up to two months so a relevant person can consult a personal insolvency practitioner about a Personal Insolvency Arrangement, and again where significant progress is made.

Section 2A, inserted by the Land and Conveyancing Law Reform (Amendment) Act 2019, requires the court, in the proceedings it covers (broadly, where a section 2 adjournment or a personal insolvency proposal has run its course, or the borrower has engaged with a designated scheme or a personal insolvency practitioner), to consider whether a possession order would be proportionate: the position of the mortgagor and any dependants, each side's proposals and conduct, against the sum outstanding, the arrears and the advised market value.

The Code of Conduct on Mortgage Arrears, made under section 117 of the Central Bank Act 1989, included a moratorium on a lender starting repossession proceedings against a borrower who is co-operating; from 24 March 2026 the Central Bank consolidated it into the Consumer Protection Code 2025, whose regulation 261 (S.I. No. 81 of 2025) keeps the waiting period before proceedings to repossess a primary residence: eight months from the arrears arising, or three months after the lender’s letter if later, unless the borrower has been classified as not cooperating. In Irish Life and Permanent plc v Dunne; Irish Life and Permanent plc v Dunphy [2015] IESC 46; [2016] 1 IR 92 IE · Supreme Court Clarke J held the Code forms part of the law, but only breach of the moratorium affects a lender's entitlement to possession.

Statutory basis

• s.89 LCLRA 2009 — charge by deed only.
• s.62(2) and s.62(6) RTA 1964 — charge instrument; on registration a Part 10 legal mortgage.
• s.91, s.92, s.94 — title documents, no consolidation against a housing loan, action for sale.
• s.96 — vesting of the powers; foreclosure abolished.
• s.97, s.98, s.99 — possession by court order; abandoned property; sale or lease.
• s.100, s.105, s.108, s.112, s.113 — sale, purchasers, receivers, leasing.
• s.2(1) Consumer Credit Act 1995 — the housing loan definition.
• s.1, s.2, s.2A, s.3, s.4 of the 2013 Act — revival, adjournment, proportionality, Circuit Court.

Key authorities

• Start Mortgages Ltd v Gunn [2011] IEHC 275 IE · High Court — no summary possession unless the principal fell due before 1 December 2009.
• Bank of Ireland Mortgage Bank v Cody [2021] IESC 26 IE · Supreme Court — a mortgage of unregistered land assures the legal title to the lender; a registered charge transfers no estate.
• Dellway Investments Ltd v NAMA [2011] 4 IR 1 IE · Supreme Court — Murray CJ (the other members concurring): borrowers entitled to make representations before NAMA acquired their loans; per Macken J, acquisition affected their property and contractual rights qua borrower.
• Browne v Ryan [1901] 2 IR 653 IE · pre-1922 — a term tying the borrower to sell through the mortgagee was void as a fetter.
• Irish Life and Permanent plc v Dunne; Irish Life and Permanent plc v Dunphy [2015] IESC 46; [2016] 1 IR 92 IE · Supreme Court — the Code is law, but only breach of the moratorium defeats possession.

How it is examined

The cue is a date plus a default: arrears, a demand, then possession proceedings or a receiver.

Work in order: the date of creation, which decides between the Conveyancing Acts with the 1964 Act, revived by s.1 of the 2013 Act, and Part 10; registered or unregistered land; whether it is a housing loan; which remedy and its preconditions; whether it is a principal private residence; and the moratorium.

Related Land Law notes: registration of title · judgment mortgages and fraudulent dispositions · licences and the family home · all free Land Law notes.