Fund entitled to possession of Dublin city property where couple have lived for 20 years, High Court rules
A fund-appointed receiver is entitled to orders requiring a couple to surrender vacant possession of three floors of a property in Dublin city centre where they have lived for 20 years, the High Court has ruled.
The orders were sought by Tom Kavanagh, a receiver appointed by Feniton Property Finance, against Eddie and Dorothy Kenny, with an address c/o Cobalt Cafe, 16 North Great Georges Street, Dublin.
Today, Ms Justice Caroline Costello ruled Mr Kavanagh was entitled to orders for vacant possession of three floors of that property. The orders do not apply to the basement, owned and occupied by the couple’s son Jamie.
The judge adjourned the making of formal orders, and any issue of a stay on those, until next month.
The receiver’s application arose after Feniton acquired various loans and guarantees made by Bank of Scotland Ireland on dates from 2005.
The loans included a 10-year €720,000 term loan to the couple in 2005 and other loans, made on dates from 2005 to 2008, to Mr Kenny and another man, Fergal Herbert, who also gave an address at 16, North Great Georges Street.
The loans were guaranteed and secured on the property which the couple declared in 1994 was not a family home within the meaning of the Family Home Protection Act.
In 1996, they moved into the first and second floors and have lived there since.
The judge said it is unclear what title, if any, that Mr Herbert may have had in the property and, in this case, no one had asserted he had any interest at all in it.
The couple and Mr Herbert fell into arrears and the couple accepted no repayment was made from October 2013 to date, she said.
In February 2016, the fund demanded repayment of €700,612 from the couple and repayment of some €5.9m from Mr Kenny and Mr Herbert.
When no repayment was made, the fund appointed Mr Kavanagh in March 2016 as receiver over the property and he took proceedings in January 2017 after attempts to reach an agreement with the couple failed.
The fund rejected an open offer by the couple to purchase the property for €480,000, excluding the basement.
In various arguments resisting possession, the couple asserted the first and second floors were their family home and the bank knew that at all times and had treated the matter as a home loan.
Ms Justice Costello said, as a matter of law, the property cannot be regarded as a family home and she agreed with the fund the loans were commercial loans.
The fund had made a strong case the loans and mortgage were assigned and transferred to it, the receiver was validly appointed and a total sum of more than €6m is due on foot of the loans, she said.
The Cobalt Cafe business was operated from the ground floor by a member of the couple’s family and the couple are either getting rent, or profits, from that, she said. Another son apparently lived in an apartment on the third floor and, if he was paying any rent, that should be paid to the fund.
While Ms Kenny argued she did not benefit from any of the loans and it would be unconscionable to rely on a guarantee provided by her, that “mere assertion” by her ignored the fact, under her joint borrowings with her husband, she owes some €700,000 to the fund, the judge added.
Damages would not be an adequate remedy if injunctions were refused and the balance of convenience required the injunctions be granted, she also held.
The couple had made no loan repayments since 2013, have effectively occupied the property rent-free for five years at Feniton's expense and the receiver has been unable to carry out his functions, she said.
