Keeping People in their Homes Bill 2017 (the Bill) is a private members bill and was presented to the Dail last Thursday by a member of the Independent Alliance. The purpose of the Bill is to provide the Irish Courts with a statutory base to allow for a proportionate assessment of a person's circumstances when considering a repossession order.
The Bill proposes to amend provisions of the Land and Conveyancing Law Reform Act 2009 which provide a mortgagee with the ability to take possession of a mortgaged property.
The Bill provides that where an order for repossession of a mortgaged property, where the mortgagor ordinarily resides, is before a court, the court must assess:
whether the order is proportionate to the legitimate aim being pursued; factors to consider here include the amount of principal/interest paid in relation to the total amount owed, the suitability or otherwise of a lifetime mortgage or a Personal Insolvency Arrangement, adherence to the Code of Conduct on Mortgage Arrears;
the likely impact of such an order on the human rights of the mortgagor and other household members; factors to consider here include the availability of suitable and affordable alternative accommodation, older persons/persons with disabilities in the household; circumstances surrounding the execution of the mortgage contract, information provided and vulnerability of the consumer; the extent and availability of State support to the enforcing entity and the cost of providing emergency accommodation.
Where the enforcing entity is not the original lender to the mortgagor, additional factors must also be taken into consideration such as the amount that the enforcing entity paid for the loan, whether the loan was also offered for sale to the mortgagor, and the availability of tax relief in respect of the non-performing loan(s).
Currently, the requirement to obtain a court order prior to repossession only applies to a "housing loan mortgage" (a mortgage which has been provided to secure a loan to a borrower for the purpose of acquiring/refinancing an interest in a property to be used as the principal residence of that borrower or his dependents). Surprisingly, the Bill proposes to extend the scope of the repossession provisions by requiring a court order for any repossession of a mortgaged property and not just housing loan mortgages. This represents a significant change to current practice and we expect that there may well be lobbying/amendments to this provision.
While the Bill is a private members bill, it has already proceeded to second stage. We will keep you informed of the Bill's progress.