Solicitor, Gerald Kean was brought to court by EBS over an accountable trust receipt (ATR) that was given by him to EBS in 2008 in order to obtain the title deeds of his client’s three properties, which were held by EBS as security for the mortgage that was taken out against them.

Mr. Kean gave an undertaking to return the title deeds on demand or else discharge all the loans secured by those title deeds. The title deeds were in turn given to Permanent TSB in order to refinance the EBS loans. Mr Kean’s client, Ms. Corcoran, did not discharge one of her loans and thereafter, EBS sought return of the title deeds.

Ms Corcoran had taken out four loans from EBS which were secured by her three properties. However, when it came to refinancing Ms Corcoran’s loans with Permanent TSB, only three out of the four loans were refinanced, the remaining loan being secured by the mortgages over two of Ms Corcoran’s properties.

During the refinancing, as standard conveyancing practice, Mr Kean gave Permanent TSB an undertaking, giving them a first legal charge over two of the properties thereby giving both Permanent TSB and EBS the impression that they had a first legal charge over the properties. By way of defence, Mr Kean stated that he was unaware of the fact that the two properties acted as security for the remaining loan and therefore, he believed that he had complied with and discharged the undertaking given to EBS.

Outcome:

On 9th May 2017, Mr. Justice Michael Twomey found that Mr Kean was not entitled to give the title deeds to Permanent TSB due to the fact that EBS had a first legal charge and it deprived EBS of the opportunity to enforce its security. The judge stressed the importance of appreciating the significance of searches concerning properties prior to giving an undertaking. After a 10 day trial, it was ultimately ordered that Mr Kean retrieve the title deeds and return them to EBS.

Philip O’Leary is the Managing Partner of FitzGerald Solicitors who are located at 6 Lapps Quay, Cork.

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