Bank entitled to possession of Dublin 4 apartment, High Court rules

A bank is entitled to an order for possession of an apartment at Pembroke Road, Dublin 4, the High Court has ruled.

Mr Justice Garrett Simons said AIB plc was entitled to a possession order against Richard Finbarr Fitzgerald, with an address at South Mall, Cork, arising from a 1995 mortgage and the terms of loan facilities accepted by Mr Fitzgerald in September 2015.

A 2003 lease agreement granted by Mr Fitzgerald under which Ms Eileen Daly has lived in the apartment at Baruva House, Pembroke Road, is not valid against the bank because the bank’s consent was not sought for the lease, he held.

Subject to submissions on the precise form of order, he proposed to put a six-month stay on the possession order to allow Ms Daly an opportunity to find alternative accommodation, he said.

The normal stay is three months but, in light of the practical difficulties posed by the coronavirus pandemic and the fact Ms Daly has been residing in the premises for almost two decades, he was proposing a six-month stay.

Final orders will be made later arising from the judgment delivered electronically on Monday.

The judge noted Mr Fitzgerald was granted a mortgage over the apartment in 1995 and the bank sought to enforce that under a debt alleged to be outstanding under loan facilities advanced in September 2015 to restructure existing debt owed by Mr Fitzgerald to AIB.

It was intended Mr Fitzgerald would dispose of certain lands, including the apartment and, if the sale proceeds met certain asset disposal targets, the outstanding balance was to be written off.

AIB, represented by Roland Rowan BL, claimed Mr Fitzgerald had failed to sell the apartment within the required 18 month period.

The judge said it appeared a lease was entered into between Mr Fitzgerald and Ms Daly and an agreement dated 2002 indicated the term of the lease was to be 35 years, commencing in April 2002 with rent payable of €800 a month, to be paid by a set-off of a sum of €800,000 said to be due by Mr Fitzgerald to Ms Daly.

The judge said Mr Fitzgerald was declared bankrupt in January 2020 and the Official Assignee in bankruptcy had not objected to the possession order as sought by AIB as a creditor of Mr Fitzgerald.

Mr Fitzgerald was not represented at the High Court hearing last month and did not attend it, he said. Notice of the proceedings had been served on Mr Fitzgerald and the occupant of the apartment.

AIB had exhibited statements of account indicating the outstanding balance on the 2015 loan facilities was some €4.2 million under one facility and €85,329 on a second. The bank also said the apartment had not been sold as Mr Fitzgerald was required to do under the second facility.

The uncontested evidence before the court was the principal monies secured on the mortgage are due for payment and, under the facility letter, the 2015 loans are payable on demand by the bank at any time at its absolute discretion, he said. In any event, the principal monies were to have been paid by specified dates which have passed without repayment.

Mr Fitzgerald has also failed to dispose of the apartment as required and the power of sale would be ineffective without vacant possession of the premises.

He was satisfied the bank was entitled to possession. There was also nothing in the papers before the court to suggest the bank had consented to the lease in favour of Ms Daly and that lease was therefore void against the bank, he held.