Privacy law may delay Nama property sales

A RECENT ADMISSION by the chairman and chief executive of Nama that they are precluded from giving information, to interested parties, on assets acquired could seriously delay the sale of distressed property loans, say senior property industry figures.

The disclosure is likely to come as a surprise to some Government ministers who are anxious to see Nama speed up its disposal programme. To date the State asset management company has spent €30.5 billion on buying loans from participating banks with a nominal value of €73.4 billion. Under current legislation, the National Asset Management Agency can only release details of property loans it has bought if the borrower gives consent to it or where a receiver has been appointed.

Both the chairman and chief executive of the Nama, Frank Daly and Brendan McDonagh, told a meeting in Cork last week that under Sections 99 and 202 of the Nama Act, as well as the Data Protection Acts, they could not provide prospective buyers with information about the underlying property assets in any particular property portfolio.

The admission was greeted with surprise and dismay by property managers who question how anyone can purchase a loan book or a bundle of properties without knowing what exactly they are buying. A leading property manager said it was like trying to sell your house and not being able to tell prospective buyers what the address was, how many bedrooms it had or what price was expected.

“No one will buy a pig in a poke. This is legislative madness which needs to be changed,” he said.

The unusual restriction will clearly put Nama at a significant disadvantage to non-Nama banks which can offer loan books and property assets for sale on the open market.

Mr Daly and Mr McDonagh told the Cork meeting that given hardly a week goes by without some comment or other being made about the alleged secretiveness of Nama they thought “it may be appropriate to talk briefly about the whole area of openness and transparency as it relates to Nama and to set out the current legal constraints under which we operate”.

In their address, they said members of the Nama board and Nama officers were prohibited under Section 202 of the act from disclosing confidential information.

Confidential information was specifically defined to include information relating to debtors. Furthermore, Section 99 of the act provided that, on acquisition of a loan, Nama took over the obligations of the participating institution under the loan, one of which was the contractual duty of confidentiality which the debtor enjoyed while still a customer of the participating institution.

For these reasons they considered they could not disclose details about debtors because to do so would leave them open to litigation. Information about individual debtors or guarantors was protected against disclosure by the Data Protection Acts which Nama must comply with as a data controller.

The Nama executives said a change in the law would be required to enable Nama to disclose information about a debtor. “However, even if the law were to be changed, there is still no certainty that the amended legislation would survive constitutional challenge if a debtor initiated proceedings to protect what he would perceive to be his right to confidentiality and to privacy.”

The two executives said they were not in a position to have discussions with potential investors, or others, about assets which were under the control of debtors who were meeting their repayment obligations or who were still negotiating with Nama on their business plans.

This was no different from the reasonable expectation that any of us might have that our bank would not enter into negotiations with a third party about the sale of our property unless we were in serious default. “That is not to say that we cannot facilitate buyers and debtors who share a common commercial objective. I should add that many of the disclosure constraints that apply to property assets under the control of debtors do not apply to property assets that are controlled by receivers engaged directly or indirectly by Nama.”

Property managers will be sceptical about the danger of introducing a minor amendment to the law that would enable Nama to provide full information on distressed property assets for sale. One property manager said it was “laughable” that a Government threatening to outlaw existing legal agreements on upwards-only rent reviews would hesitate about making a simple change in the Nama law to allow it to recover billions of badly needed euro spent on distressed property assets.