The High Court case ADM Mersey PLC v Bergin and Another [2020] IEHC 3, addressed the effect of a judgment mortgage on a property held as a joint tenancy and where the judgment mortgage is only registered against the interest of one the joint tenant’s and not both.
It was held that a judgment mortgage does not sever the joint tenancy, and crucially it is does not affect the right of the joint tenant to sever the joint tenancy.
It was confirmed that even if a judgment mortgage is registered against one owner of a property that is held in a joint tenancy, the joint tenancy can still be severed and converted to a tenancy in common.
This allows the non-debt owing joint tenant to put his/her interest in the property beyond the reach of the creditor who has the judgment mortgage registered on the property against the other joint tenant.
This is an important decision as if the registration of judgement mortgage prevented a joint tenant from severing the joint tenancy, then in that event, the non-debt owning joint tenant would not be able to protect his/her interest in the property and survivorship rights would continue to apply.
Survivorship means that on the death of one of the parties, the remaining surviving tenant automatically becomes entitled to the Deceased’s interest in the property.
However, where property is held by parties as tenants in common, there is no right of survivorship and on the death of one of the tenants in common, the other tenant in common does not automatically become entitled to the Deceased’s interest in the property, but rather his/her interest passes under the terms of his/her will or on Intestacy.
The decision means that the non-debt owing joint tenant can intentionally move his interest in the property out of the reach of the judgment creditor and protect his/her interest in the property.
It is important that joint tenants who have a judgment mortgage registered against their property speak to us so you can be advised on the position and the various options that may be available to you to protect your interest in the property.
