Judgment Mortgages
1. Judgments capable of registration
3. Persons entitled to apply to register a Judgment Mortgage
4. Process of registration and queries
5. Judgment Mortgage against Companies
6. Registration against Joint Tenants
7. Cancellation of Judgment Mortgages
8. Transfer of Judgment Mortgages and Related Matters
9. Postponement of Judgment Mortgage to a Charge in certain cases
10. Judgment Mortgages and Cautions
12. Family Home Protection Act 1976
1. Judgments capable of registration
Judgments of the Superior Courts (Supreme Court, Court of Appeal and High Court) and of the Circuit Court for a liquidated sum [i.e. judgments which require the payment of a sum of money] are capable of being registered as judgment mortgages. A decree of the District Court for a liquidated sum is also capable of being registered as a judgment mortgage (Section 24 of the Courts Act, 1981).
Originally, only judgments of the Superior Courts could be registered as judgment mortgages. However, the Circuit Court (Registration of Judgments) Act 1937, provided for registration of judgments of the Circuit Court as judgment mortgages. Some judgments of the Circuit Court were previously registerable under the Enforcement of Court Orders Act, 1926. Decrees of the District Court became registerable as judgment mortgages from 12th May 1982 under Section 24 of the Courts Act 1981.
Judgments of the said Courts for periodic payments are to be referred to the Divisional Manager.
Judgments obtained abroad, outside EU member States, are not generally capable of registration as judgment mortgages. However, the High Court has jurisdiction to make enforcement orders, in respect of foreign judgments, made by Courts of competent jurisdiction, for payment of fixed money sums. The order of the High Court may include protective measures, such as an injunction preventing the defendant reducing the value of his/her assets in the State below a sum sufficient to discharge the foreign judgment. Where the assets include registered lands, which are specified in the order, such an order would be registerable as a burden. See section 69(1) (h) the Registration of Title Act, 1964 [No. 16 of 1964].
Since 1988, there has been legislation in place giving effect to the Brussels Convention 1968, (as amended), for the enforcement of judgments in civil and commercial matters throughout EU Member States. The Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 [No. 3 of 1988], (as amended by Jurisdiction of Courts and Enforcement of Judgments Act, 1993 [No. 9 of 1993]), was repealed and consolidated by the Jurisdiction of Courts and Enforcement of Judgments Act, 1998 [No. 52 of 1998]. The enforcement of judgments of the courts of member states, except Denmark other than as provided for by the Agreement mentioned below, was governed by the Brussels I Regulation of 2002, (Council Regulation [EC] No. 44/2001). This was transposed fully into Irish Law by the European Communities (Civil and Commercial Judgments) Regulations 2002 [S.I. No. 52 of 2002].
By Agreement dated 19th October 2005, made between the European Communities and the Kingdom of Denmark, the provisions of the Brussels I Regulation, as modified by that Agreement, were applied to international relations between the other EU Member States and Denmark. In any case, where application for registration of a judgment mortgage is made, on foot of a judgment obtained in a Danish court, a direction should be obtained from the Divisional Manager, who should, if necessary in any particular case, consult the Deputy Registrar.
Rule 4 of the Land Registration Rules 2013 [S.I. No. 389 of 2013] inserted a new Rule 110A and new Form 60A. The Rule prescribes that an application for registration of a judgment mortgage as a burden on registered property, in execution of a judgment for the payment of a sum of money that is recognised under the Brussels I Regulation, shall be made in Form 60A.
For applications lodged prior to 10 January 2015, the application shall be accompanied by:
- Official copy of the relevant judgment
- (Official copy of the order of the Master of the High Court declaring the judgment enforceable
The entry in the register shall be in Form 61, adapted to the circumstances of the case.
10 January 2015
The European Communities (Civil and Commercial Judgments) Regulations 2002 [S.I. No. 52 of 2002] were revoked on 10 January 2015 and replaced by the European Union (Civil and Commercial Judgments) Regulations 2015 [S.I. No. 6 of 2015]. The Regulations of 2015 transpose the amended Brussels I Regulation, which was amended under Regulation (EU) No. 1215/2012 of the European Parliament and of the Council, generally referred to as “Brussels I Regulation (recast)”, into Irish law on and from 10th January 2015.
Although Denmark did not take part in the adoption of the Regulation and is not bound by it, Denmark has agreed to implement the contents of the amending Regulation.
Under the Brussels I Regulation (recast), an enforcement order of the Master of the High Court is no longer required in respect of civil and commercial judgments obtained in courts of member states of the European Union. However, under Article 37 of Regulation (EU) No. 1215/2012, a party who wishes to invoke in a Member State a judgment given in another Member State shall produce, in addition to a copy of the judgment, the certificate pursuant to Article 53 from the court of origin.
The certificate referred to in Article 53, which issues from the court of origin where the original judgment was obtained, should accompany the official copy judgment. The Article 53 certificate is in a form prescribed by Annex 1 of the Regulation. It gives full details of the judgment and bears the court stamp. An Enforcement Order of the Master of the High Court is not required and should not be called for.
New Land Registration and Registration of Deeds Rules will be made in due course to reflect these changes. In the interim, judgments accompanied by Article 53 certificates should be regarded in the same way as judgments accompanied by an Enforcement Order from the Master of the High Court. Prescribed forms that are adapted by substituting references to the Enforcement Order of the Master of the High Court with references to Article 53 certificates may be accepted in both Land Registry and the Registry of Deeds. Rule 52(2) of the Land Registration Rules 2012 and Rule 6(1) of the Registration of Deeds Rules 2008 refer.
Exception on an uncontested claim:
An exception to this procedure is contained in Regulation 7 of European Communities (European Enforcement Order) Regulations 2005 [S.I. 648 of 2005], which came into operation on 21st October 2005. These regulations transposed Regulation (EC) No. 805/2004 of the European Parliament and of the Council of 21 April 2004, creating a European Enforcement Order for uncontested claims, into Irish Law.
Regulation 7 provides:
“Where a judgment, court settlement or authentic instrument on an uncontested claim has been certified as a European Enforcement Order in a Member State of origin, that Judgment, court settlement or authentic instrument, as the case may be –
(a) shall be of the same force and effect as a judgment of the High Court, and
(b) may be enforced by the High Court, and the proceedings taken on it, as if it were a judgment of that Court”.
Rule 4 of the Land Registration Rules 2013 [S.I. No. 389 of 2013] inserts a new Rule 110B and new Form 60B. The Rule prescribes that an application for registration of a judgment mortgage as a burden on registered property, in execution of a European Enforcement Order for the payment of a sum of money, shall be made in Form 60B. The application shall be accompanied by:
- Official copy of the relevant judgment
- Official copy of the European Enforcement Order certificate
- Where necessary, a transcription of the European Enforcement Order certificate or a translation thereof into Irish or English
An order from the Master of the High Court is neither necessary nor appropriate in these cases.
No enquiry should be made by the Authority as to whether the judgment issued on foot of an uncontested claim once the relevant European Enforcement Order is lodged.
The entry in the register shall be in Form 61, adapted to the circumstances of the case.
2. Form of Application
From the 1st December 2009 being the commencement date of the Land and Conveyancing Law Reform Act 2009 an application to register a Judgment Mortgage as a burden pursuant to section 116 of that Act shall be in the prescribed LR Form 60 of the Land Registration Rules.
Note the prescribed Form does not include the amount of the Judgment or Costs but must include thereon a certificate that the particulars of the Judgment described therein are correct signed by the proper officer of the Court in which the Judgment was obtained. Section 117 of the Land & Conveyancing Law Reform Act 2009 states: ‘Registration of a judgment mortgage under section 116 operates to charge the judgment debtor’s estate or interest in the land with the judgmentdebt…’ This is sufficiently wide to include all sums flowing from the judgment, including costs. The property and the estate or interest of the Judgment Debtor in same must also be identified as per Rule 111 of the Land Registration Rules.
Application also requires LR Form 17 and €175 Fees.
3. Persons entitled to apply to register a Judgment Mortgage
Any person authorised by the Court who has obtained a Judgment against another person may apply to the Authority to register a Judgment Mortgage against the second person’s estate or interest in land.
Where more than one creditor obtains the Judgment any one of them may make the affidavit.
A “Creditor” as defined in section 115 of the Land and Conveyancing Law Reform Act 2009 includes an Authorised Agent.
Where the applicant is not one of the persons named as the person or persons who obtained the judgment, or where the judgment has been obtained by a company or government minister or other corporate entity the application in the prescribed form is to be accepted provided the applicant identifies themselves as the creditor within the meaning of Section 115 of the Land and Conveyancing Law Reform Act 2009. (as is provided in paragraph 1 of the LR Form 60)
4. Process of registration and queries
Once the application meets the requirements, the settling officer may register. The requirements are set out in Rule 111 of the Land Registration Rules, 2012. As the judgment mortgage may be registered against any interest of the judgment debtor in the land, whether legal or equitable, it may occur occasionally that the judgment debtor is not the registered owner of the affected property. Provided the requirements of Rule 111 are met, the Land Registry will register a judgment mortgage for what that registration is worth. The officer is not concerned with whether the registered owner is one and the same as the judgment debtor, as the function of the Registry is purely ministerial.
The entry in the Register shall be in LR Form 61 of the Land Registration Rules with such variation as the Authority may in special circumstances direct. In cases of doubt, the Divisional Manager should be consulted.
Notice of the registration [post registration] of the Judgment Mortgage in LR Form 62 of the Land Registration Rules shall be sent to the registered owner of the property and to other persons [if any] whose estate or interest therein the application purports to affect at their address in the State for service of notices as disclosed in the Register and/or in the application itself.
Where there is a section 90 note on the folio notice must also be served on the Housing Authority.
Registration of a Judgment Mortgage should not be refused provided that the application is made in conformity with Land Registration Rules. In cases where it is doubtful whether the person who applies is entitled to do so or where a defect (other than a defect arising for requirements of the Rules) appears the application is not to be rejected. The matter is to be queried with the Solicitor. In addition, the Solicitor is to be informed that despite the defect, if so requested, the application will be registered. A Judgment Mortgage application is not to be returned to a Solicitor except at his/her request and in such instance the Solicitor is to be informed that it will rank in priority as and from its date of relodgment.
In rare cases when a Judgment Mortgage is lodged for registration there may already be registered on Part 3 of the Folio an entry as follows:
“ The property is subject to a High/Circuit Court Order dated….in a cause of A.B. applicant and C. D. respondent as specified in Instrument No……”.
This is essentially a Court Order registered as a burden under section 69 R.O.T. In such circumstances registration of the Judgment Mortgage should proceed without query.
5. Judgment Mortgage against Companies
It is important that a judgment mortgage against a Company within the meaning of the Companies Act, 1963 should be registered immediately on receipt thereof in view of penalties provided by that Act.
On completion a plain copy of the application should be issued to the Registrar of Companies.
On lodgment of an application for certified copies of an application affecting a company, the Keeper of Records should treat the matter as extremely urgent again in view of penalties provided by the Companies Act.(See section 102 of the Companies Act 1963).
Section 413 of the Companies Act 2014 replaced section 102 of the Companies Act 1963 as and from the 1st June 2015. There is no provision in section 413 requiring the Property Registration Authority to forward a copy of the judgment mortgage application form to the registrar of companies. Therefore in the case of applications for registration of a judgment mortgage lodged on or after the 1st June 2015 copies of the application form will not issue to the registrar of companies.
6. Registration against Joint Tenants
The effect of the registration of a judgment mortgage on the interest of a registered owner as joint tenant with another or others was settled by the High Court in Judge Mahon & Ors v Lawlor & Ors. Laffoy J. 30-07-2008. The Court held that such a registration does not give rise to a severance. This is now confirmed by section 30(3) of the Land and Conveyancing Law Reform Act 2009.
7. Cancellation of Judgment Mortgages
A judgment mortgage can be cancelled from the register on production of the evidence prescribed by Rule 114 LR Rules 2012. It can also be cancelled on other appropriate grounds e.g. under Rule 72 or 101 Land Registry Rules 2012. (See Practice Direction entitled “Burdens- Cancellation of Burdens”).
Note that a minor cannot release a judgment mortgage.
All applications for cancellation of Judgment Mortgages under Rule 113 are to be referred to the Higher Executive Officer. In the case of In re Strong (1940) I.R. 382 – 386 the Supreme Court held that a purchaser of registered land is entitled to have a judgment mortgage against the interest of Vendor (the registered owner) cancelled from the register on the grounds that the entire purchase money under the contract had been paid over to the Vendor prior to registration of the judgment mortgage as a burden on the folio.
The position of a Judgment Mortgage registered after a deposit was paid on a contract for sale came before the Supreme Court in Tempany v Hynes (1976). By a majority, the Supreme Court held that when a contract for sale has been signed the Vendor becomes a trustee of the beneficial interest in the property to the extent that the purchase money has been paid. Accordingly, the Supreme Court held that until the whole of the purchase money is paid the Vendor has a beneficial interest in the land which may be charged by a Judgment Mortgage.
Under section 52 of the Land and Conveyancing Law Reform Act 2009 the orthodox position is restored. Section 52 provides that the entire beneficial interest passes to the purchaser on the making of an enforceable contract for sale or other disposition of land on or after the commencement date of the Act being the 1st December 2009.
NOTICES: In respect of all applications for cancellation, other than a release by the Judgment creditor, notice must be served on the Judgment creditor before cancellation. Any objection must be treated on its merits. This also applies in the case of a subdivision where the application is to prevent the judgment being carried over onto the new folio.
8. Transfer of Judgment Mortgages and Related Matters
8.1 Transfer of Judgment Mortgages
i. A transfer by deed of a Judgment Mortgage may not be registered unless
a. the ownership of the judgment mortgage is registered on a Subsidiary folio or
b. an application is lodged, together with the transfer, to register the title to the judgment mortgage on a Subsidiary folio under Rule 186 of the Land Registration Rules 2012.
ii. If not so registered the transferee’s interest may be protected by an Inhibition.
iii. There is no prescribed form of transfer but Form 56 [Transfer of a charge] may be adapted. If an S folio is already opened the transfer would be in Form 19.
iv. To make an application for registration of a transfer of a judgment mortgage where an S folio is not already opened the following is required to be lodged
a. Form 17
b. Fees based on consideration
c. Application for registration of the ownership of the judgment mortgage. There is no prescribed form of application and therefore an amended Form 1 should be lodged together with the usual searches
d. Transfer which
i. If in relation to a single burden, should be an amended Form 56 [with the relevant judgment mortgage clearly and unambiguously identified]
ii. If in relation to a bulk transfer of judgment mortgages should be an amended Form 56 and comply with our practice in relation to bulk transfers of charges.
8.2 Release of a Judgment Mortgage by the transferee from the Judgment creditor.
i. Where the transferee from the judgment creditor wishes to cancel/release the judgment mortgage there is no requirement to register the new ownership of the judgment mortgage on an S folio prior to registering the cancellation of the judgment mortgage. The following should be lodged
a. Form 17
b. Fees of €40 per judgment mortgage
c. Transfer as per paragraph 8.1 (iv)(d) above
d. Affidavit of Discovery [or indeed amended Form 1 as per paragraph 8.1 (iv)(c ) above.
e. Application in Form 63 [by the transferee] of the LR Rules 2012
ii. Where the transferee has been registered as owner of the Judgment Mortgage on an S folio the following should be lodged
a. Form 17
b. Fees of €40 per judgment mortgage
c. Form 63
8.3 Applications where the interest of the plaintiff in the original judgment is subject to an Order under Order 17 Rule 4 of the Rules of the Superior Courts or Order 22 Rule 4 of the Circuit Court Rules or Order 43 Rule 30 of the District Court Rules [i.e. where the interest of the original plaintiff has passed to another party]. Some specific issues can arise
i. Upon application to register a judgment mortgage by the party replacing the original plaintiff the following should be lodged
a. Form 17
b. Fees of €175
c. Form 60 of the LR Rules by the judgment creditor [the party replacing the original plaintiff] with Paragraph 2 amended to refer to the details of the original judgment and the Order under the Superior Court or Circuit Court or District Court Rules.
d. The entry on the folio will be in Form 61 amended as follows
A judgment mortgage in respect of a judgment obtained by X (original plaintiff) against Y (Defendant) on (insert date of original Judgment ) in the High (or Circuit) Court Record No xxxx in a cause or matter of X ( original Plaintiff ) v Y (Defendant) on the interest of Y (Defendant/judgment debtor ) in the property. On (inset date Order No. 17 Rule 4 or Order 22 Rule 4 or Order 43 Rule 30) pursuant to Order No 17 Rule 4 Supreme Court Rules (or Order 22 Rule 4 of the Circuit Court Rules or Order 43 Rule 30 of the District Court Rules) the title of the plaintiff’s title in the said proceedings was amended to Z (the party replacing the original plaintiff).
ii. Upon application to cancel a judgment mortgage by the party replacing the original plaintiff [original judgment creditor] where the Judgment Mortgage is registered as a burden on a folio with details of the original plaintiff [original judgment creditor] only.
a. Form 17
b. Fees of €40
c. Certified copy of the Order under Order 17 Rule 4 of the Rules of the Superior Courts or Order 22 Rule 4 of the Circuit Court Rules or Order 43 Rule 30 of the District Court Rules with the relevant judgment clearly and unambiguously identified. If relevant, all personal data relating to third parties should be redacted in the certified copy supplied.
d. Form 63 by the judgment creditor (i.e. the party replacing the original plaintiff / judgment creditor).
9. Postponement of Judgment Mortgage to a Charge in certain cases
See Practice Directions entitled Burdens – Registration of Burdens, para.2.4
10. Judgment Mortgages and Cautions
It occasionally happens that a solicitor will apply for a caution as a temporary protection for a judgement, pending its conversion to a judgement mortgage. A judgment for liquidated sums of itself does not create any right in, to or over lands. It is not until registration of the judgment mortgage, which is a process of enforcement of the judgment, that any interest in lands is created. Therefore, there are no grounds, within the meaning of section 97(1) of the Registration of Title Act, 1964 [No. 16 of 1964] to support a caution. Any such application for a caution should be rejected.
Practice Direction – Cautions and Inhibitions refers.
11. Bankruptcy
Section 51 of the Bankruptcy Act, 1988 [No.27 of 1988] provides, in effect, that registration of a judgment mortgage does not grant any priority to the judgment creditor over unsecured creditors, unless that judgment mortgage is registered at least three months before adjudication of bankruptcy.
If an inhibition has been entered on a folio, pursuant to section 103 of Registration of Title Act, 1964 [No. 16 of 1964], and an application to register a judgment mortgage is lodged within the 3 month restriction period, proceed with registration of the judgment mortgage as of the date of lodgement. As stated previously, the Registry’s function is ministerial in the registration of judgment mortgages and priorities in these cases will be dealt with by the Court. However, in addition to notifying the registered owner/judgment debtor in LR Form 62, the notice of registration of the judgment mortgage, in LR Form 62 suitably adapted, should be served on the Examiner of the High Court (Bankruptcy), quoting the Court references that appear on the bankruptcy notice filed on the section 103 Instrument.
12. Family Home Protection Act 1976 [as amended]
Registration of a judgment mortgage is a process of execution. The judgment creditor’s interest is created by operation of law and not by disposition of the owner/judgment debtor. Therefore, the provisions of Family Home Protection Act 1976, requiring the consent of the non-owning spouse to a disposition of the family home by the owner spouse, do not apply.
See Containercare (Ireland) Ltd. v Wycherly [1982] IR 143 and Murray v Diamond [1982] ILRM 113, which are discussed in Chapter 5 of Law Reform Consultation Paper on Judgment Mortgages LRC CP 30-2004.
See also Practice Direction – Family Home and Family Law Acts.
13. Cancelled Entries
Where a Judgment Mortgage has been cancelled on a folio the registered owner may seek to have the cancelled entry removed from the folio or he may seek to have a note entered opposite it stating that it was registered in error. Such an entry cannot be removed from the folio and such a note cannot be entered on the folio without an Order of the Court because no mistake in registration as such has been made and an entry of that sort is not authorised by the Act or Rules.
A revision of the folio will satisfy most registered owners. In the exceptional case where such revision is not acceptable a Court order in substantive proceedings is necessary. Such an Order may declare for example that the Judgment, which was registered as a Judgment Mortgage, was not obtained against the registered owner and that it was registered on his lands as a Judgment Mortgage in error and directing that a note to that effect be entered on the folio.
Mercantile Credit Co of Ireland Limited v Buckley (unreported Circuit Court 1985)
- ROD Form 16: Application to register a judgment mortgage (Registry of Deeds)
- LR Form 60: Application to register a judgment mortgage (Land Registry)
- LR Form 62: Notice of the registration in the registry of a judgment as a judgment mortgage (Rule 112)
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Frank Treacy
Deputy Registrar,
1st December 2009
Updated 11th August 2015
Updated 8th November 2017
Updated 20th November 2017