THE DEPARTMENT of Justice and the Attorney General are still consulting on how to close a loophole in repossession legislation identified in a High Court judgment, the department has said.
Legislation is likely to be required to fill the gap in current law identified by Ms Justice Elizabeth Dunne in July.
Her judgment has left hundreds of repossession cases in limbo.
The Chancery summonses court, which deals with repossessions, is due to sit for its first session of the new term today. Some 73 cases are listed and it is likely that cases taken after December 2009 will be adjourned.
In July, Ms Justice Dunne found the Land and Conveyancing Law Reform Act 2009 contained a “lacuna” and may have had “unintended consequences”.
In four test cases involving lenders Start Mortgages Ltd, Secured Property Loans Ltd and GE Capital Woodchester Home-loans Ltd, the judge said the legislation only applied to mortgages created after its commencement on December 1st, 2009.
The legislation repealed older conveyancing legislation. But it failed to save elements of the Registration of Title Act 1964 that would have allowed lenders to repossess properties on registered land with mortgages taken out before December 2009 that went into arrears after that date.
Ms Justice Dunne ruled that borrowers who went into arrears before December 1st, 2009, and received demand letters from lenders before that date, could still be repossessed under the old legislation.
However, borrowers who took out mortgages before the December date and who went into arrears after it could not be repossessed under the old or new law.
Lenders have said they will challenge the judge’s ruling and may also challenge the constitutionality of the 2009 Act, but no date has yet been set for Supreme Court hearings on the issues.
David Hall, co-founder of lobby group New Beginning, said yesterday a significant number of homeowners were in “limbo-land” in relation to their repossession cases. He said a number of today’s cases were likely to be adjourned.
Mr Hall said New Beginning, set up to help people in danger of losing their homes, would bring more legal challenges against lenders attempting repossessions. He added any political moves to “re-insert” section 62 (7) of the Registration of Title Act, to close the loophole, would be despicable.
