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Maher v Dublin City Council (Approved)
Factual and Procedural Background
The Plaintiff/Respondent agreed on 27 June 2014 to purchase a leasehold property in The City from Company A, which was selling as mortgagee to realise its 2007 security. Before completion, the purchaser was told that the property was subject to an unregistered statutory charge securing an unpaid derelict-sites levy of €50,153.42 under the Derelict Sites Act 1990 (“DSA”). On 30 September 2014 the property was conveyed by Company A “in exercise of the statutory power of sale” under the Conveyancing Act 1881.
The purchaser subsequently sought confirmation from the Defendant/Appellant local authority that the charge had been overreached. When the authority insisted that the charge persisted, the purchaser paid the levy under protest on 8 August 2019 to allow a resale and issued proceedings to recover it.
The Circuit Court (Judge O’Connor, 27 July 2022) held the charge remained. On appeal, Judge Simons in the High Court ([2023] IEHC 408) reversed that decision, declaring the charge overreached and ordering repayment. The Supreme Court granted leave ([2023] IESCDET 121) and, by the present judgment, determines the local authority’s further appeal.
Legal Issues Presented
- Whether, on a sale by a mortgagee exercising the statutory power of sale under the Conveyancing Act 1881 (now s.104 Land and Conveyancing Law Reform Act 2009), the purchaser takes free from a derelict-sites levy charge created by s.24 DSA.
- Whether the words in s.24 DSA that the levy “shall remain until payment thereof” impliedly displace the overreaching regime of s.21 1881 Act.
- Whether the DSA charge enjoys a special or “super-priority” status notwithstanding registration statutes and ordinary rules of priorities.
Arguments of the Parties
Appellant’s Arguments
- The phrase “shall remain until payment” in s.24 DSA is clear and unambiguous; it precludes overreaching and allows the charge to persist against any purchaser.
- The charge is sui generis, supports an important public policy of combating dereliction, and therefore cannot be vacated save by payment or compulsory acquisition.
- The High Court failed to give proper weight to the statutory text and purpose, and wrongly relied on presumptions against implied repeal.
Plaintiff/Respondent’s Arguments
- The ordinary principles of property law and overreaching remain applicable; the DSA does not expressly disapply them.
- The levy is recoverable only from an “owner” as defined, which expressly excludes a mortgagee not in possession.
- Displacing prior mortgagee rights without clear language, notice, or compensation would be constitutionally suspect and inconsistent with registration law.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pepper Finance v Cannon [2020] IESC 2; [2022] 1 I.R. 128 | Leave to appeal criteria | Referenced in granting Supreme Court leave |
| Heather Hill Management v An Bord Pleanála [2022] IESC 43 | Strict construction when legislation affects vested rights | Supports High Court’s approach; affirmed |
| Promontoria (Oyster) v Fox [2023] IECA 76 | Statutory interpretation affecting creditors/debtors | Cited with approval |
| Dunnes Stores v Revenue [2019] IESC 50 | Primacy of statutory text | Considered but distinguished |
| Goulding Chemicals v Bolger [1977] I.R. 211 | All words in a statute have meaning | Applied in analysis of s.24 DSA |
| DPP v Gilligan [1993] 1 I.R. 92 | Implied repeal principles | Supports reluctance to infer repeal |
| McLoughlin v Minister for Public Service [1985] I.R. 631 | Later statute may prevail but needs clarity | Discussed |
| DPP v Grey [1986] I.R. 317 | Generalia specialibus non derogant | Key rationale: DSA general, 1881 Act special |
| West Ham v Fourth City Mutual BS [1892] 1 QB 654 | Test for implied repeal | Applied |
| The Vera Cruz (1884) 10 App Cas 59 | General words do not override special provisions | Adopted |
| DPP v Flanagan [1979] I.R. 265 | Need for clear, unambiguous language | Reinforces court’s strict approach |
| Barker v Edger [1898] AC 748 | Presumption against implied amendment | Cited |
| McGonagle v McGonagle [1951] I.R. 123 | Later general enactment not to displace earlier special | Supports mortgagee’s position |
| S.E. Railway Co v Jortin (1857) 10 E.R. 1360 | Sale by mortgagee defeats subsequent incumbrances | Historical illustration of overreaching |
| Re Lowe [2020] IEHC 104 | Concept of positive equity | Background discussion |
| Tanager DAC v Kane [2019] 1 I.R. 385 | Registration requirements for charges | Used to refute “super-priority” argument |
| Langan v PRA [2023] IEHC 276; [2024] IECA 59 | Nature of receiver and overreaching | Cited in contract-for-sale comments |
Court's Reasoning and Analysis
Judge Baker (for a unanimous court) affirmed the High Court, deploying a two-strand analysis:
- Statutory interpretation & implied repeal. Section 21 1881 Act (overreaching) is a specific provision; s.24 DSA is general. Applying generalia specialibus non derogant, the later general statute cannot impliedly repeal the earlier special one absent clear language. The DSA contains no express wording abrogating overreaching, nor is the 1881 Act listed for repeal.
- Nature of the charge. The levy becomes a charge only against the “owner” (mortgagee not in possession excluded) and, for registered land, must be registered to bind. Granting it “super-priority” would undermine the registration system and constitutional property protections, especially as the Act provides no notice, representation or compensation mechanisms for prior mortgagees.
The Court rejected the Appellant’s reliance on the “shall remain until payment” phrase, holding it merely defines how an owner may vacate the charge and does not speak to third-party purchasers from a mortgagee. Overreaching is intrinsic to the mortgagee’s power of sale, both at common-law and under statute; only explicit, precise legislation could displace it.
Holding and Implications
APPEAL DISMISSED. The statutory power of sale exercised by Company A overreached the derelict-sites charge; the Plaintiff acquired the property free of that charge and is entitled to repayment of the levy.
Implications: The decision confirms that statutory charges under the DSA do not override the long-standing overreaching regime protecting purchasers from mortgagees. Local authorities remain secured only against the “owner” and must register charges and respect existing priorities. No new precedent is set beyond clarifying the interaction between s.24 DSA and conveyancing law.
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