Repossessions Update: Relying on the Rateable Valuation of a property in proceedings in the Circuit Court
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On 12 December 2017, the Chief Justice, Mr. Justice Frank Clarke delivered a long awaited unanimous decision of the Supreme Court in the case of Permanent TSB plc –v- David Langan and the Attorney General. The decision will arguably have a significant impact on hundreds of repossession cases in particular before the Circuit Court, as it gives some much needed clarity on the jurisdiction of that Court to deal with proceedings1 involving properties which either have a rateable valuation not exceeding €253.95 or are no longer rateable under the Valuation Act 2001 (“the 2001 Act”).
The case involved an appeal by PTSB of the decision of Mr. Justice Hogan of the Court of Appeal in July 2016. Of note is the fact that the Attorney General sought and obtained from the Supreme Court leave to intervene in the appeal on the basis that the issues raised were both of public importance and “had the potential to affect other similar questions concerning statutory jurisdiction”. In substance, Mr. Justice Clarke allowed the appeal to the extent that he suggested different answers to the questions raised by the High Court in the case stated to the Court of Appeal.
Supreme Court decision
In delivering the judgment, the Chief Justice gave a detailed analysis of the distinction between whether a property was “rateable” (having regard to the technical meaning of that term in the 2001 Act) or whether a property had a “rateable valuation”. He concluded that the relevant jurisdiction of the Circuit Court is not excluded due to the fact that a property is not rateable under the provisions of the 2001 Act or that it does not have a rateable valuation. Further, it was held that the Circuit Court does have jurisdiction in all relevant cases, provided that the rateable valuation of the property (to include a deemed rateable valuation under section 67 of the 2001 Act) does not exceed €253.95. Importantly, the Chief Justice stated that the burden of proof is on the plaintiff in repossession actions of the type which was the subject of the appeal to establish that the Circuit Court has jurisdiction, either by the production of a certificate of rateable valuation stating that the valuation of the property is below €253.95 or by producing admissible evidence that the property concerned does not in fact have a rateable valuation.
Effect of the decision on repossession proceedings currently before the Circuit Court relying on rateable valuation for jurisdiction
The decision means that delays on the jurisdiction point should become less problematic for lending institutions in Circuit Court cases where:
- The property is not the borrower’s PPR;
- The mortgage is a pre-1 December 2009 mortgage; and
- The property was built on or after the commencement of the 2001 Act and is therefore not rateable; or
- The property was built prior to the 2001 Act and a certificate of rateable valuation is available.
The decision will have no impact on repossession cases which have yet to be issued where the Land and Conveyancing Law Reform Act, 2009 or the Land and Conveyancing Law Reform Act, 2013 cannot be relied upon, given that since the coming into effect of the relevant provisions of the Courts Act, 2016 (“the 2016 Act”) the Circuit Court’s jurisdiction in property matters is now based on the market value of the property rather than its rateable valuation. While the decision is certainly significant, arguably its impact in practice will be limited, in circumstances where the 2016 Act stated (and the courts have largely not demurred to date) that a section 67 certificate was admissible proof of the rateable valuation of a property.