In a judgment delivered on 23 July 2026, the High Court dismissed possession proceedings brought by Everyday Finance DAC, trading as Link Financial, and a receiver appointed by it, on the ground that the proceedings ought to have been brought in the Circuit Court. Ms Justice Marguerite Bolger held that section 3 of the Land and Conveyancing Law Reform Act 2013 contains two separate requirements, that the mortgage was created before 1 December 2009 and that the land is the mortgagor’s principal private residence, and that the second of those requirements is tested at the date on which the proceedings are instituted rather than the date on which the mortgage was executed.1 Robert Emmet Bourke & Co. acted for the first named defendant, with William Hugh Dunne BL as counsel.
The decision settles a question that the Court of Appeal had expressly left open in 2021, and it has immediate consequences for lenders, receivers and borrowers alike. A mortgagee who issues possession proceedings in the High Court on the strength of what the property was when the loan was drawn down, rather than what it is when the summons issues, risks seeing the proceedings dismissed in their entirety, with costs. This article sets out the background to the case, the statutory framework, the arguments on each side and the Court’s reasoning, before turning to the Court’s treatment of the Code of Conduct on Mortgage Arrears and of the undue influence defence, and to the practical lessons that follow.
Background
The proceedings arose from a loan facility advanced by IIB Homeloans Limited in December 2005 to the second named defendant. The plaintiffs relied on a guarantee given in January 2006 by the first named defendant, who is the son of the borrower, together with a charge executed on the same day over an apartment in Dublin 6 of which the first named defendant is the registered owner. Everyday Finance DAC claimed to be the successor in title to IIB Homeloans in respect of the facility and the security, and the second named plaintiff was the receiver it had appointed over the property.2
By special summons dated 27 May 2024 the plaintiffs sought possession of the property and injunctive relief under section 62(7) of the Registration of Title Act 1964 and Order 3 of the Rules of the Superior Courts.3 Their grounding affidavit averred that the property was not a family home, that the first named defendant did not reside there and that it was not his principal private residence within the meaning of section 3 of the 2013 Act. The receiver exhibited the results of three occupation inspections, carried out in October 2022, March 2023 and November 2023, each of which had found a tenant in residence.
The first named defendant swore that he had been living in the property since January 2024, some four months before the summons issued, and that it was his family home and principal private residence. The plaintiffs did not challenge that evidence. Their position was that the property had not been his principal private residence when the guarantee and charge were executed in 2006, and that a mortgagor could not, by moving into a property long after the creation of the security, convert it into a principal private residence for the purposes of section 3 and thereby deprive the High Court of jurisdiction. The plaintiffs themselves framed the question in those terms in their supplemental affidavit.4
The statutory framework
Section 3(1) of the Land and Conveyancing Law Reform Act 2013 provides that the section applies to land which is the principal private residence of the mortgagor, or of a person without whose consent a conveyance of the land would be void under the Family Home Protection Act 1976 or the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, and the mortgage concerned was created prior to 1 December 2009. Where the section applies, proceedings relating to the mortgage must be brought in the Circuit Court.5 The heading to the section reads “Proceedings relating to certain mortgages to be brought in the Circuit Court”, and the long title describes the Act as one to provide that certain statutory provisions apply to mortgages of a particular class notwithstanding their repeal by the Land and Conveyancing Law Reform Act 2009.6
The point of construction was therefore a narrow one. Both the plaintiffs and the first named defendant accepted that the mortgage had been created before 1 December 2009. The dispute was whether the words “land which is the principal private residence of the mortgagor” describe the land at the time the proceedings are brought, or whether, read with the long title, they describe a class of mortgage fixed by reference to the character of the property when the security was created.
The arguments
Both sides approached the question through the “words in context” method of statutory interpretation endorsed by the Supreme Court in Heather Hill Management Company v An Bord Pleanála.7 The plaintiffs contended that the long title anchored the statutory regime not in the current status of the land but in the character of the mortgage itself and the class of mortgages to which the Act applies. They drew an analogy with the protection afforded to a spouse under the Family Home Protection Act 1976, which, as the Supreme Court held in National Irish Bank v Graham, attaches to the conveyance of a property that was a family home at the time of the conveyance and not to one that might later become a family home.8 They also relied on Fennell v Creedon in the High Court and Tyrrell v Wright in the Court of Appeal, in each of which a mortgagor who had moved into a commercially mortgaged property some years after executing the mortgage was refused the benefit of the Code of Conduct on Mortgage Arrears.9
The first named defendant answered that the question was not one of a liberal reading of section 3 but of a literal one. The section speaks first of the land, in the present tense, and only then of the class of mortgage concerned. He pointed to the judgment of Costello J in Charleton v Coates, where the Court of Appeal, while holding that section 3 was not engaged by a receiver’s application for injunctive relief against trespass, had reversed a finding that a property occupied by the mortgagor after the creation of commercial security could not be his principal private residence, and had expressly left for another case the question whether such a property could be a principal private residence for the purposes of section 3.10
The Court’s reasoning on section 3
Bolger J rejected the plaintiffs’ analysis. The wording of section 3 was, in her view, not so ambiguous as to support it. The long title identified the legislative intention to confer jurisdiction on the Circuit Court by reference to the land which is the principal private residence of the mortgagor at the time the proceedings were instituted, and the reference to mortgages of a particular class did no more than confine the section to mortgages created before 1 December 2009. That reading was consistent with the heading to the section. Section 3(1) sets out the Circuit Court’s mandatory jurisdiction by reference to the land before it turns to the mortgages covered, and subsections (2) and (3) locate that jurisdiction in the land, in the present tense, rather than in the mortgage or in any class of mortgage.11
The analogy with the Family Home Protection Act did not assist the plaintiffs. The spouse’s protection considered in National Irish Bank v Graham is limited to the conveyance of a property that was a family home at the time of the conveyance, but what was in issue under section 3 was not a liberal reading of the section but a literal one, and the section refers to the land before it refers to the mortgage. The Court also noted that the 2009 Act had created a particular defined class of mortgage, and that the Oireachtas had declined to adopt that language in the 2013 Act, which supported the conclusion that the only class of mortgage identified by section 3 is the class created before 1 December 2009.12
Fennell v Creedon and Tyrrell v Wright were distinguished. Both decisions were concerned with the characterisation of contracts and loans for the purposes of the Code of Conduct on Mortgage Arrears, and with the proposition that a mortgagor could not override the terms of a commercial mortgage by moving into the property with his family. Neither decision addressed the interpretation or application of section 3(1).13 Charleton v Coates, on the other hand, showed that the Court of Appeal regarded the point as open. It now fell to be determined, and the Court determined it. The timing of the execution of the mortgage and of the guarantee is irrelevant to section 3(1). What brings the subsection into play is the timing of proceedings relating to a mortgage created before 1 December 2009, which must be brought in the Circuit Court where the land is, at the time of the proceedings, the principal private residence of the mortgagor or of a person within section 3(1)(b).14
On the evidence, the Court found that the property had been the principal private residence of the first named defendant and his wife since January 2024, four months before the summons issued. The plaintiffs’ last inspection, in November 2023, may well have been accurate in finding a tenant in residence, but there was no evidence to contradict the first named defendant’s averment as to his occupation from January 2024. The plaintiffs were therefore required by section 3(1) to institute the proceedings in the Circuit Court, and that requirement applied whether or not the property had been his principal private residence when he provided the guarantee and executed the charge.15
The Court addressed two practical objections raised by the plaintiffs. The first was that the interpretation would force High Court proceedings concerning a commercial property to relocate midstream to the Circuit Court, or to be abandoned. It would not, because section 3 governs the court in which proceedings are to be brought, and once proceedings are properly commenced the court seised of them has jurisdiction. The second was that a mortgagee would have to track a borrower’s residence continually. It would not. The section requires the mortgagee to establish the status of the property when proceedings are being issued, which could be done by an occupation inspection of the kind the plaintiffs had arranged, provided that it is carried out at the time of the institution of the proceedings and not months beforehand.16
The Court accordingly held that section 3(1) applies where the mortgaged property is the mortgagor’s principal private residence at the time of the institution of proceedings, whether or not it was so when the mortgage was executed. Whether the terms of a mortgage contract could expressly oust that jurisdiction was left for a future case. The proceedings had been wrongly brought in the High Court, which had no jurisdiction to determine the issues raised, and they were dismissed.17 An attempt by the plaintiffs, after the hearing, to rely on a further inspection carried out in June 2026 was of no assistance, since the question was the status of the property when the proceedings were instituted and a subsequent change in occupation could not confer jurisdiction on the High Court.18 The Court’s indicative view was that the first named defendant was entitled to his costs.
The Code of Conduct on Mortgage Arrears
The first named defendant had also argued that the plaintiffs’ failure to comply with the Code of Conduct on Mortgage Arrears, in breach of section 117 of the Central Bank Act 1989, deprived the Court of jurisdiction. In case she was wrong on section 3, Bolger J went on to consider that argument and rejected it. Unlike section 3, the Code looks to the status of the property when the mortgage loan was executed. Drawing on the observation of Murphy J in Fennell v Creedon that the Code is specified to apply to a mortgage loan which is secured by the borrower’s primary residence, cited with approval by Whelan J in the Court of Appeal, the Court held that the Code applies only where the secured property was the borrower’s primary residence at the time the mortgage agreement was executed. It cannot become applicable because the property later becomes the mortgagor’s primary residence.19
The judgment therefore draws a clear line between the two regimes. Section 3 of the 2013 Act is concerned with the land as it stands when proceedings are issued. The Code is concerned with the loan as it stood when it was made. A borrower who takes up residence in a mortgaged property after the loan was drawn down may bring himself within the first without bringing himself within the second.
Undue influence
The first named defendant’s substantive defence was that he had executed the guarantee and charge in 2006 under the undue influence of his father, at a time when he was a twenty-two year old student living in the family home and working in his father’s business, and that the lender had not ensured that he took independent legal advice. He relied on M’Mackin v Hibernian Bank, in which a presumption of undue influence was found where a child was living with or under the control of a parent.20
Although the point did not arise given the finding on jurisdiction, the Court expressed a clear view on it. What may have applied in 1905 does not necessarily apply over a century later, not least because the current accommodation crisis, of which the Court took judicial notice, has obliged many adult children to continue to live in their parents’ homes. To treat such now normalised living arrangements as giving rise in themselves to a rebuttable presumption of undue influence was, in the Court’s words, unrealistic and artificial. The fact that an adult of twenty-two was still living at home did not create a presumption of undue influence, nor did it remove the obligation that rests on any adult who signs legal documents to inform himself of what he is signing. The circumstances did not oblige the lender to question the first named defendant’s capacity to make decisions about his own property or to require him to take independent advice, and the claim of undue influence was, in the Court’s assessment, no more than the kind of bald assertion that the Court of Appeal had held insufficient to resist summary judgment in Bank of Ireland v Curran.21 Had the Court had jurisdiction, the plaintiffs would have been entitled to an order for possession under section 62(7) of the Registration of Title Act 1964 and Order 3, rule 22.22
What the decision means in practice
For lenders, loan purchasers and receivers, the lesson is procedural but costly if ignored. The choice of court for proceedings on a pre-December 2009 mortgage depends on the status of the property at the date the summons issues. An occupation inspection carried out eighteen months, or even six months, before issue will not establish that status. The inspection must be contemporaneous with the institution of the proceedings, and where there is any real prospect that the mortgagor or a protected spouse or civil partner is in residence, the proceedings belong in the Circuit Court. Proceedings issued in the wrong court are not transferred; they are dismissed, and the mortgagee must begin again having borne the costs of the first attempt.
For borrowers and guarantors facing enforcement, the decision confirms that section 3 is a genuine jurisdictional bar and not a matter of discretion, and that the relevant question is where the mortgagor lives when the proceedings are brought. It is equally important to appreciate the limits of the decision. Section 3 governs forum, not outcome. A mortgagor who succeeds on jurisdiction may face fresh proceedings in the Circuit Court, where the merits will be decided. The Code of Conduct on Mortgage Arrears will not be available to a borrower whose property was not his primary residence when the loan was made, and an allegation of undue influence will require evidence of the influence itself rather than of the family relationship in which the security was given.
Two questions remain open. The Court did not decide whether the terms of a mortgage contract could validly oust the Circuit Court’s jurisdiction under section 3, and it did not need to consider the position of a mortgagor whose residence in the property is itself alleged to be a breach of the mortgage conditions. Both may arise in a future case. For the present, Everyday Finance v O’Donoghue is the first decision to resolve the question flagged in Charleton v Coates, and it resolves it in favour of a plain reading of the section.
Robert Emmet Bourke & Co. acted for the first named defendant, with William Hugh Dunne BL appearing as counsel. Edward Murray BL appeared for the plaintiffs.
This article is for general information only and does not constitute legal advice. Anyone facing possession proceedings, or considering issuing them, should take advice on the facts of their own case.
Notes
- Everyday Finance DAC t/a Link Financial and Declan Taite v Paul O’Donoghue and Edward O’Donoghue, High Court, Record No. 2024/79 SP, judgment of Bolger J delivered 23 July 2026, [2026] IEHC [number] ↩
- Judgment, paragraph 2. ↩
- Registration of Title Act 1964, section 62(7); Rules of the Superior Courts, Order 3. ↩
- Judgment, paragraphs 3 and 7. ↩
- Land and Conveyancing Law Reform Act 2013, section 3. ↩
- Land and Conveyancing Law Reform Act 2013, long title; judgment, paragraph 6. ↩
- Heather Hill Management Company CLG v An Bord Pleanála [2024] 2 IR 222; judgment, paragraph 8. ↩
- National Irish Bank v Graham, Supreme Court, 4 May 1994; judgment, paragraph 11. ↩
- Fennell v Creedon [2015] IEHC 711; Tyrrell v Wright [2018] IECA 295; judgment, paragraph 13. ↩
- Charleton v Coates [2021] IECA 58, per Costello J at paragraph 33; judgment, paragraph 14. ↩
- Judgment, paragraphs 9 and 10. ↩
- Judgment, paragraphs 11 and 12. ↩
- Judgment, paragraph 13. ↩
- Judgment, paragraph 15. ↩
- Judgment, paragraphs 16 and 17. ↩
- Judgment, paragraph 18. ↩
- Judgment, paragraphs 19 and 20. ↩
- Judgment, paragraph 21. ↩
- Central Bank Act 1989, section 117; judgment, paragraphs 23 and 24, citing Fennell v Creedon [2015] IEHC 711 at paragraph 62 and Tyrrell v Wright [2018] IECA 295 at paragraph 71. ↩
- M’Mackin v Hibernian Bank [1905] 1 IR 296; judgment, paragraph 25. ↩
- Bank of Ireland v Curran [2016] IECA 399; judgment, paragraphs 25 to 28. ↩
- Judgment, paragraph 29. ↩