High Court: Injunction granted against husband and wife who re-entered repossessed house

About this case:

• Citation:
  [2021] IEHC 691
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Nuala Butler

In defending the motion, the defendants had claimed that the eviction was invalid because the execution order grounding the eviction had lapsed. It was also said that the plaintiff had failed to properly serve the second defendant and that the plaintiff had consented to the continued occupation of the property. The court did not uphold any of these points.

Background

The defendants were husband and wife who had taken out a mortgage with the plaintiff on their family home in 2006. The loan was for €400,000 and the fell into difficulty with the repayments at an early point. Arrears were accumulated in 2007 and the plaintiff issued proceedings seeking possession.

In 2008, the High Court granted an order for possession. This caused the defendants to begin making regular repayments but by 2012, the payments had stopped again. Since that point, only four payments totalling €5,000 were made on the loan, which was accumulating interest.

In 2018, the plaintiff brought an application seeking leave to issue execution against the defendants, which was granted. The High Court later issued an order of possession on foot of the execution order in July 2019.

The defendants were evicted in March 2020, with the defendants being given a letter outlining the basis on which the plaintiff was taking possession. However, 30 minutes after leaving the property, the defendants re-entered the house.

The plaintiffs engaged in solicitors correspondence with the defendants and eventually proceedings issued in September 2020 seeking to remove the defendants as trespassers from the property.

The husband did not take part in the proceedings, but the court was assured that the defendants had split up and that he had left the property.

As such, the wife was the main defendant in the case. She opposed the injunction on three bases. First, it was claimed that an execution order could only be in force for one year under the Superior Court Rules. As such, it was said that the 2018 execution order had lapsed by the time of the eviction in March 2020. It was also submitted that the application to recover possession was out of time because 12 years had lapsed since the original order for possession.

Second, it was argued by the wife that the plaintiff had failed to serve her with the proceedings and that she was unaware of the order for possession. It was claimed that her husband had been domineering and did not let her open post which was jointly addressed to them. It was also said that the plaintiff should have communicated the mortgage arrears to the wife in the informal conversations with the plaintiff over the years.

Finally, it was said that the plaintiff acquiesced and consented to the defendants remaining in the property. The wife claimed that her husband had been told by the eviction team that they could re-enter the premises ten minutes after the eviction had taken place. It was also claimed that the eviction team had left the discarded lock and key on the pathway, which had been picked up by the husband. Further, the wife claimed that a plaintiff’s employee told her that she could take legal proceedings against the plaintiff since she “did not know anything about what was happening”.

High Court

Delivering judgment in the case, Ms Justice Nuala Butler held that the plaintiff was entitled to the injunction. The court began by considering whether the execution order was valid. The court noted that there was some confusion between an order for possession and an order of possession. The court outlined that an order for possession does not permit a party to take possession of lands. If possession needs to be forcibly taken, then an application for leave to seek execution must be brought. Once an execution order is granted, a party may obtain an order of possession to remove a person from lands.

It was held that the 2018 order “categorically does not authorise the seizure or sale of property, the putting of the plaintiff into possession of the property or the delivery to the plaintiff of the property”. As such, the court was not satisfied that the 2018 order could be classified as an “execution order” which had to be acted on within one year.

Further, it was noted that the plaintiff had obtained an order of possession in July 2019 on foot of the 2018 order. As such, at that point, the 2018 order was “effectively spent”. The court said that the wife “sought to link the lifespan of the execution order to the unexpired residue of the spent order granting leave to issue execution” but that she had provided no authority for this proposition. The court noted that Carlisle Mortgages Ltd v. Canty [2013] 12 JIC 0302 was not relevant as it did not deal with execution orders under Order 42 Rule 24.

The court also held that the 2019 order of possession was clearly an execution order and therefore had a one-year lifespan which could be acted upon by the plaintiff. On the issue of the statute of limitations, the court held that the plaintiff had taken possession in March 2020 and was now seeking to remove trespassers. Accordingly, there was no breach of the 12-year limit as the cause of action only accrued in March 2020.

The court held that the plaintiff was seeking prohibitory relief in the case and therefore held that the lower threshold applied for the injunction to be granted.

It was held that the wife had been served by the plaintiff at all times and that the only way she could have been unaware of the proceedings was from a “a wilful determination to ignore them”. It was also pointed out that the wife was vague and inconsistent about her separation from her husband, so the wife could not rely on the marriage breakdown to say that the plaintiff owed additional responsibilities to her.

Finally, the court held that both the plaintiff and the wife’s evidence about the re-entry to the premises was based on hearsay. However, the court held that the wife’s version of events was “fanciful”. Any belief that they could stay in the property was “manifestly inconsistent” with correspondence provided to the defendants.

Conclusion

The court held that the balance of convenience weighed in favour of granting the injunction. Accordingly, the court acceded to the plaintiff’s motion.