Order to sell couple’s Dartry home to cover legal costs deferred until after their deaths

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The Supreme Court has made orders deferring the sale of the Dartry home of an elderly couple, for the purpose of meeting legal costs judgments of some €663,000 against the husband, until after their deaths.

The Supreme Court ordered, as a condition of a stay on the sale of their Dartry home, that James and Patricia Kenny must put their Co Donegal holiday home up for sale within six months to go towards paying off the 2010 judgments.

The judgments were obtained by Trinity College, Dublin, against Mr Kenny following his protracted litigation, in which he represented himself, over the building of student accommodation near their Dartry home.

Mrs Kenny is not a party to the judgment debt.

Unanimous judgment

Ms Justice Marie Baker on Monday gave the five judge court’s unanimous judgment dismissing the couple’s appeal against a 2010 High Court order permitting sale of the Dartry home.

The High Court had declared three judgment mortgages registered by Trinity against Mr Kenny’s interests in the Dartry and Donegal properties were well charged on those interests. The judgment mortgages were registered after TCD got judgment for costs, which stood in 2010 at €663,239, against Mr Kenny in his long-running unsuccessful litigation over the Trinity Hall student accommodation.

The High Court was satisfied the value of the Dartry house was such that Mrs Kenny, the co-owning non-debtor spouse, would have sufficient funds after sale and discharge of a prior legal mortgage, for which she was jointly liable, to buy alternative accommodation and that sale of Dartry would not deprive the couple of a home.

In her judgment on the Kenny’s appeals, Ms Justice Baker noted the case pre-dated the Land and Conveyancing Law Reform Act 2009 which Act gave the court discretion in a judgment mortgage case to make such orders as it considered just and equitable in the circumstances of the case.

Donegal property

The Dartry premises was valued in 2008 about €1.5 million, with a legal mortgage of €480,000, and the Donegal property was valued between €200,000 and €250,000, she noted.

The judge said she was dealing with the appeal on the basis both properties still have broadly the same valuations but two material facts which differed since 2010 are that the Kennys are now in advanced old age and the Dartry legal mortgage is some €800,000.

Having considered the facts and the law, she found the consequences of an order for immediate sale of the Dartry property would be oppressive given the couple’s ages, the fact they have lived in their home and the Dartry area for 25 years, and have support services, friends and family nearby. They could not be expected to vacate their home now at the suit of Trinity, she said.

Beneficial interest

She must also have regard to the fact the couple had taken no steps to sell the Donegal property in the ten years since the High Court decision and the interest on the judgment mortgage continued to accrue “at an alarming rate”.

The judge concluded the court should affirm the High Court order for sale of the Dartry property, thus protecting the interest of Trinity, but the sale order should be stayed on conditions which protect the Kennys’ interests. The Donegal property must be put up for sale within six months as a condition for deferring sale of the Dartry property until after both Kennys have died.

Mrs Kenny’s beneficial interest in the Donegal property must be attached to the Dartry property instead and the couple must sever their joint tenancy in the Donegal property which their adult children may purchase, if they wish, at a price agreed between the sides, the judge also ordered.



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