Some definitions relating to property

just do it

I'm looking for 2 legal definitions relating to property:
1st Residential property
2nd Investment property

Farcear

In what context?

Victor

It will very much depend on the context. Some properties will be both residential and investment properties and many will be neither. The definition used for taxation may vary from those used for planning purposes.

Generally, residential property is that which is used for domestic purposes, used for the majority of the year, i.e. excluding commercial or public uses and holiday homes. there may be some over-laps.

Investment properties are ones where people hope to make a profit, whether from eventual sale or by receiving a rent or similar payment.

just do it

I was purposefully minimalist with my post. Definition stands alone and gives the context. How a property is classified is then based on the context.

I've looked at the consumer credit act 1995 and the residential tenancies act 2004 but neither provide these definitions. The residential tenancies act provides a definition of a dwelling. The code of conduct on mortgage arrears gives a definition of a primary residence.

I was hoping such legal definitions were available.

Tom Young

In the absence of formal legal definitions the Courts would look to the purpose.

Primary dwelling - Usually as that means, family home normally, etc.

Investment Property - same.

L&CLR Act 2009: http://www.irishstatutebook.ie/2009/en/act/pub/0027/sec0003.html#sec3

Property: “ property ” means any real or personal property or any part or combination of such property.

just do it

Farcear wrote: »

In what context?

Victor wrote: »

It will very much depend on the context.

After reading some legislation today I appreciate the need for context now. The area of legislation I am used to dealing with gives prescriptive definitions which hold true across abroad range of EU directives, council and commission regulations and associated Irish legislation. Where as looking at a number of Acts relating to property the following is typical "In this Act “residential property” means...."

Victor wrote: »

Some properties will be both residential and investment properties and many will be neither.

This pretty much is what I wanted to hear.

Tom Young

Hire a lawyer

just do it

A rented dwelling (typical 4bd semi-det house) is the subject of debate between the owner and the mortgage provider. The owner is of the opinion the dwelling is covered by the code of conduct on mortgage arrears as under this code it fits the following definition of a primary residence:

"(ii) a residential property in this State which is the only residential property owned by the borrower."

The property is the only residential property owned by the borrower and was originally bought as the borrowers primary principle residence. After a number of years the borrower's circumstances changed and the dwelling is now rented out and the borrower is living in a separate rental property. At the point of leasing the dwelling the borrower declared it as an investment property and refinanced it as such.

The lender is of the opinion that because the property is an investment property, therefore the property does not fall within the definition of a primary residence within the 'Code of Conduct on Mortgage Arrears'. This point is reiterated by the lender: "the property is rented out to tenants therefore the property is not a residential property and does not comply with the definition of a primary residence within the 'Code of Conduct on Mortgage Arrears'."

The contention is the property is all three, i.e. a primary residence, a residential property, and an investment property. Just because it is an investment property it does not mean that it isn't a primary residence as defined by the Code, nor does it mean it is not a residential property.

Views on this are most welcome.

just do it

Tom Young wrote: »

Hire a lawyer

Fair point and the borrower has one. No harm getting views on it as well though.

just do it

just do it wrote: »

...............

The contention is the property is all three, i.e. a primary residence, a residential property, and an investment property. Just because it is an investment property it does not mean that it isn't a primary residence as defined by the Code, nor does it mean it is not a residential property.

Views on this are most welcome.

If it's rented out it can't be the owner's primary residence.

blueythebear

MARPS states the following definition for Primary Residence:

"Primary Residence: means a property which is:
(i) the residential property which the borrower occupies as his/her primary residence in this State, or
(ii) a residential property in this State which is the only residential property owned by the borrower."

The key word is "or" which means that there is an argument to be made that a house being rented out is still a Primary Residence despite not being occupied by the Owner. It's really something for your solicitor to consider in terms of defending any cause of action from the Bank.

I presume proceedings have not issued and if they have, the MARPS issue is a tactical issue that your solicitor should be advising you on. If proceedings have not issued, it is likely that the person telling you that MARPS doesn't apply is not a lawyer, but is rather some Bank Official.

Victor

Tom Young wrote: »

Property: “ property ” means any real or personal property or any part or combination of such property.

What happens if someone is living in a card board box? There have been case in the USA of them being treated as private residences for search warrant purposes.

Victor

Possibly some poor wording in the Code of Conduct on Mortgage Arrears.

http://www.centralbank.ie/regulation/processes/consumer-protection-code/documents/code%20of%20conduct%20on%20mortgage%20arrears%20%201%20january%202011.pdf

CHAPTER 1
SCOPE

...

This Code applies to the mortgage loan of a borrower which is secured by their primary residence.

In addition, lenders must apply the protections of the Code to borrowers in the following circumstances:
(i) Borrowers in arrears and in pre-arrears; and
(ii) In the case of joint borrowers, who notify the lender in writing that they have separated or divorced, the lender should treat each borrower as a single borrower under this Code.

Presumably, you want to claim under point (i)

You do need to lawyer up, if nothing else it shows that you aren't willing to be ridden roughshod over.