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Receivers

  • 13-04-2010 12:27pm
    #1
    Tester46
    Registered Users, Registered Users 2 Posts: 557 ✭✭✭


    If there are two charges over a leasehold folio, and the holders of the second registered charge appoint a receiver, can the holder of the first registered charge insist on appointing its own receiver and "trump" the second charge holder's receiver?

    There is no agreement between the 2 chargeholders


Comments

  • #2
    Tester46
    Registered Users, Registered Users 2 Posts: 557 ✭✭✭Tester46


    Tester46 wrote: »
    If there are two charges over a leasehold folio, and the holders of the second registered charge appoint a receiver, can the holder of the first registered charge insist on appointing its own receiver and "trump" the second charge holder's receiver?

    There is no agreement between the 2 chargeholders

    Anyone got any ideas? This is a real, live issue which is coming up.

    In essence the questions are

    1. if the holder of the second ranking charge has already appointed a receiver over the asset, can the holder of the first ranking charge appoint a second receiver over the same asset?

    2. If the answer to 1. is yes, then how do the two receivers interact? Do they both act concurrently over the same asset, or does the receiver appointed by the holder of the first ranking charge "trump" the other receiver?

    3. Is the answer - go to court for directions?


  • #3
    Tom Young
    Legal Moderators, Society & Culture Moderators Posts: 4,338 Mod ✭✭✭✭Tom Young


    It's very difficult to answer this without asking what types of charges are in place, so that's why I've not bothered to come back and address the question. You can appoint a receiver over whatever you like, I will say though that depending on the nature of the charge and priority of appointment that would/will be the determining factor/factors in any transaction. It should not be necessary to go to Court for clarification.

    If you are a solicitor go to Counsel if you're not, got to a solicitor. This is quite a technical area.


  • #4
    Tester46
    Registered Users, Registered Users 2 Posts: 557 ✭✭✭Tester46


    Tom Young wrote: »
    It's very difficult to answer this without asking what types of charges are in place, so that's why I've not bothered to come back and address the question. You can appoint a receiver over whatever you like, I will say though that depending on the nature of the charge and priority of appointment that would/will be the determining factor/factors in any transaction. It should not be necessary to go to Court for clarification.

    If you are a solicitor go to Counsel if you're not, got to a solicitor. This is quite a technical area.


    Noted, thanks. But I should have said that both charges are the same. They are both legal mortgages, and they both purport to give a first legal charge (as the 2009 Act calls all legal mortgages "charges" now) over the same asset. The "second ranking" charge was simply registered after the first one and so lost priority to it.

    Under both charges, the right to appoint a receiver over the asset either arises under the Land and Conveyancing Law Reform Act 2009, or under the specific terms of the charge document itself.

    As a live legal issue, it doesn't affect me and so I won't be incurring costs on this one, but as a legal concept, I think it is interesting. Plus, I suspect it will arise a lot more given that NAMA seems to be discovering that banks have lost priority in a lot of cases due to delays in registering charges and so the issue of multiple chargeholders all trying to appoint their own receiver may arise.


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