The Battle of Gorse Hill - (yet) again

serfboard

Brian O'Donnell has finally won a case - this time in the Court of Appeal.

RTE wrote:

Dr Mary Patricia O'Donnell, wife of retired solicitor Brian O'Donnell, is entitled to argue she has a right of residence at Gorse Hill in Killiney, Co Dublin, which the family was ordered to vacate last year, the Court of Appeal has ruled.

Mr Justice Donal O'Donnell, on behalf of a three-judge appeal court, said Dr O'Donnell was entitled to contest an injunction preventing the couple from trespassing on Gorse Hill or interfering with a receiver's right to dispose of the property to help meet the O'Donnell's €71m debt to Bank of Ireland.

She was entitled to do so on the basis of an argument put forward on her behalf by her husband, who represented both of them in the case, that she had a right of residence in the house, he said.

This arose out of the couple's claim that under the Family Home Protection Act, guaranteeing property entitlements to spouses.

It was claimed Dr O'Donnell had not received separate legal advice from her husband when their right of residence in Gorse Hill, subject to two years notice of termination, was agreed in October 2000 as part of a trust vesting the beneficial interest in the property to their children.

As a result, it was claimed, this had the effect of invalidating a mortgage and security related to the property by an Isle of Man registered company, Vico Ltd, to Bank of Ireland.
...
Mr Justice O'Donnell said given the Family Home Protection Act, which he said is an unusual provision designed to provide protection to spouses, it cannot be said this is a property right which vests (in the bankruptcy official) on adjudication of bankrutpcy.

"It is not, at least in its own terms, something which is convertible into money, which would benefit the estate of the bankrupt", he said.

A right of residence, which he described as a uniquely Irish concept, is "on its own terms both personal and non-assignable", he said.

He affirmed the decision of the High Court in dismissing claims in relation to invalidity of the original judgment against the O'Donnells and their claims for fraud, deceit and misrepresentation because the right to argue them only belongs to the bankruptcy official.

However, he was excepting from that the claim in relation to right of residence and the Family Home Protection Act.

The O'Donnells may now proceed with those claims in the High Court, he said.

As I said in the previous thread (now closed), I cannot see how the "Family Home Protection Act" can be applied since this is not a Family Home - it is a property owned by an Isle Of Man registered company, and the Act should not, you would think, apply.

Pro Hoc Vice

serfboard wrote: »

Brian O'Donnell has finally won a case - this time in the Court of Appeal.

As I said in the previous thread (now closed), I cannot see how the "Family Home Protection Act" can be applied since this is not a Family Home - it is a property owned by an Isle Of Man registered company, and the Act should not, you would think, apply.

In what way do you say the Act does not apply. The Act defines Family Hone http://www.irishstatutebook.ie/eli/1976/act/27/section/2/enacted/en/html#sec2

serfboard

Pro Hoc Vice wrote: »

In what way do you say the Act does not apply. The Act defines Family Hone http://www.irishstatutebook.ie/eli/1976/act/27/section/2/enacted/en/html#sec2

You're right. I would have thought that a property owned by an offshore trust would not constitute a family home, but funnily enough, the act doesn't say anything about that. It simply says a:

“family home” means, primarily, a dwelling in which a married couple ordinarily reside

That being said, however, AFAIK there is some doubt, in this case, as to whether they did actually ordinarily reside there.

Pro Hoc Vice

serfboard wrote: »

You're right. I would have thought that a property owned by an offshore trust would not constitute a family home, but funnily enough, the act doesn't say anything about that. It simply says a:
That being said, however, AFAIK there is some doubt, in this case, as to whether they did actually ordinarily reside there.

It was to the best of my knowledge the house they had raised a family in and I assume bought some time before 2000. The important document seems to be one signed in 2000 so I assume the question was the spouse aware of the effect of that agreement when it must have been the house they resided in. If here consent was not correctly obtained then any dealing thereafter in the propert it seems was on shaky ground.

serfboard

Pro Hoc Vice wrote: »

If her consent was not correctly obtained then any dealing thereafter in the propert it seems was on shaky ground.

OK. That's interesting. So, in the news report it says:

RTE wrote:

It was claimed Dr O'Donnell had not received separate legal advice from her husband when their right of residence in Gorse Hill, subject to two years notice of termination, was agreed in October 2000 as part of a trust vesting the beneficial interest in the property to their children.

As a result, it was claimed, this had the effect of invalidating a mortgage and security related to the property by an Isle of Man registered company, Vico Ltd, to Bank of Ireland.

So, it seems that because she didn't get separate legal advice (and of course, why would she), she can now say that, on that basis, that she "is entitled to argue [that] she has a right of residence".

From a legal perspective, this seems like a clever play.

From a non-legal perspective, of course, it's bollocks, but it's being aired in a court of law, not in a court of common sense.

Pro Hoc Vice

serfboard wrote: »

OK. That's interesting. So, in the news report it says:

So, it seems that because she didn't get separate legal advice (and of course, why would she), she can now say that, on that basis, that she "is entitled to argue [that] she has a right of residence".

From a legal perspective, this seems like a clever play.

From a non-legal perspective, of course, it's bollocks, but it's being aired in a court of law, not in a court of common sense.

So say a husband and wife buy a house 30 years ago. They raise a family and say 10 years ago one of them says I want to invest in a new business so I'll ask the bank. The banks says yes but we want a charge on your property so guy goes home does not explain it to wife she signs it fast forward a few years business gone bank want to get house. Well the wife can claim her consent was not valid as she was not properly advised. Any other reading of that situation would not give the act any effect.

In this case the husband trying to protect the house set up a trust only giving the parents limited rights. The trust borrows money and now bank wants property. If the wife not advised of her rights under act and that the home is at risk, again how would such a situation give the act any effect if a spouses rights can be ignored.

serfboard

Pro Hoc Vice wrote: »

So say a husband and wife buy a house 30 years ago. They raise a family and say 10 years ago one of them says I want to invest in a new business so I'll ask the bank. The banks says yes but we want a charge on your property so guy goes home does not explain it to wife she signs it fast forward a few years business gone bank want to get house. Well the wife can claim her consent was not valid as she was not properly advised. Any other reading of that situation would not give the act any effect.

In this case the husband trying to protect the house set up a trust only giving the parents limited rights. The trust borrows money and now bank wants property. If the wife not advised of her rights under act and that the home is at risk, again how would such a situation give the act any effect if a spouses rights can be ignored.

Thanks for your reply.

The reason I'm saying it's bollocks in the court of common sense is as follows: the husband, who is a (seemingly successful) solicitor, says to the wife, this is the best thing to do. The law is often concerned with what a reasonable person would do or say. A reasonable person would say - that's grand, I trust you, and I trust your advice that that's the right thing to do, and am happy to sign any consents. The only fly in the ointment is that would she not have had to waiver her right to separate legal advice/representation in signing the document? This can be the case in such matters.

She now comes along, many years after the fact, claiming not to have had separate legal advice. Is there any evidence that she sought it at the time? If she had signed a document waiving her right to separate legal advice, she's screwed, but if she didn't I think I understand the judgement a bit better.

Pro Hoc Vice

serfboard wrote: »

Thanks for your reply.

The reason I'm saying it's bollocks in the court of common sense is as follows: the husband, who is a (seemingly successful) solicitor, says to the wife, this is the best thing to do. The law is often concerned with what a reasonable person would do or say. A reasonable person would say - that's grand, I trust you, and I trust your advice that that's the right thing to do, and am happy to sign any consents. The only fly in the ointment is that would she not have had to waiver her right to separate legal advice/representation in signing the document? This can be the case in such matters.

She now comes along, many years after the fact, claiming not to have had separate legal advice. Is there any evidence that she sought it at the time? If she had signed a document waiving her right to separate legal advice, she's screwed, but if she didn't I think I understand the judgement a bit better.

Not trying to be dismissive, don't you think the appeal court would have looked at those issues. This is a complex case because the couple in 2000 set up a trust the husband was a solicitor he prob had very clever trust solicitors and barristers setting this whole thing up all their advice would prob be you and wife are well protected. But here is where independent advice comes in if the wife was sepertaly advised she might have had to risks explained she might have been told if anything goes wrong yes ye both end up with nothing including the home. The Act is to protect all spouses to make sure if the family home is at risk they make informed consent to any loan or disposal.

I assume the judgement will be on line in a few days then you can see all the courts reasoning.

Little CuChulainn

Pro Hoc Vice wrote: »

So say a husband and wife buy a house 30 years ago. They raise a family and say 10 years ago one of them says I want to invest in a new business so I'll ask the bank. The banks says yes but we want a charge on your property so guy goes home does not explain it to wife she signs it fast forward a few years business gone bank want to get house. Well the wife can claim her consent was not valid as she was not properly advised. Any other reading of that situation would not give the act any effect.

Surely that's her own fault though. Get advice before you agree to something.

Pro Hoc Vice

Little CuChulainn wrote: »

Surely that's her own fault though. Get advice before you agree to something.

Yes! But that's not how the act works. By having a strict interpretation of the act it puts the requirement on any lending institution to make sure both parties who are protected by the Act are advised and under stand the risk. Any lender or buyer is well aware of the act and its effects so should always make sure when anything even hints of a family home get a proper waiver signed.

Marcusm

I assume hat these are the self drafted trust documents which appeared from a safe sometime after proceedings began, trust documents which I recall the bank being surprised by as they understood that they were dealing with Vico Ltd as principal. Understandable that they might not have thought to seek a family home declaration in such circumstances, if my recollections of the reports of the years long cases is accurate.

plodder

Marcusm wrote: »

I assume hat these are the self drafted trust documents which appeared from a safe sometime after proceedings began, trust documents which I recall the bank being surprised by as they understood that they were dealing with Vico Ltd as principal. Understandable that they might not have thought to seek a family home declaration in such circumstances, if my recollections of the reports of the years long cases is accurate.

How can that work? Surely, you can't just produce a trust like that, which a bank has no knowledge of and which possibly impacts on their security for the loan?

jimmycrackcorm

serfboard wrote:

You're right. I would have thought that a property owned by an offshore trust would not constitute a family home, but funnily enough, the act doesn't say anything about that. It simply says a:

Does that mean that a married couple renting a house can claim it as their family home and ignore the landlord asking for rent to be paid?

Pro Hoc Vice

jimmycrackcorm wrote: »

Does that mean that a married couple renting a house can claim it as their family home and ignore the landlord asking for rent to be paid?

No. The act only deals with an action as follows

"Where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, "

foggy_lad

Pro Hoc Vice wrote: »

No. The act only deals with an action as follows

"Where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, "

The requirement is on the lending institution to ensure that both spouses or civil partners have sought advice where one of them wants to convey interest to another person or entity,

but what about where the lending institution is unaware that the premises is a family home as they are led to believe it to be an asset of a company?

Pro Hoc Vice

foggy_lad wrote: »

The requirement is on the lending institution to ensure that both spouses or civil partners have sought advice where one of them wants to convey interest to another person or entity,

but what about where the lending institution is unaware that the premises is a family home as they are led to believe it to be an asset of a company?

Should find the answer to any question here http://courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/15d0cc0c8ce001c980257ffe00352199?OpenDocument

Marcusm

Reading the decision makes it clear that the substantive issue of whether a right of residence exists has not been determined. All that has been determined if that if such a right exists, and one was not asserted by the O'Donnells when they made their compromise with Bank of Ireland in 2011, it is for M-P O'Donnell to exercise it, ie it did not become part of the bankruptcy estate.

That being said, it seems that the house was held absolutely by Vico Ltd whose shares were in turn held in trust. It is not for the trustees of which trust to grant a right of residence, that is for the corporate officers/directors of Vico Ltd. I suspect that this is merely a continuing saga whose purpose is to frustrate the legitimate recovery by the bank and which has no other purpose or effect.

serfboard

After numerous court cases Gorse Hill is finally up for sale by Bank Of Ireland - for €8.5 million.

Mod deletion; Whatever we may think of this saga, a family is concerned. We should leave it at that