Prior to the enactment of the 2009 Act, a Judgment Mortgage in respect of registered land created a charge only in the land, whereas a judgment mortgage in respect of unregistered land gave the creditor an interest in the debtor’s land. The latter providing the creditor with a type of ownership in the Property.
This distinction created a huge difficulty for creditors to enforce security over registered land. wherein instances where the creditor held only the interests of one co-owner in a property, that property couldn’t be sold by the creditor.
However, any Judgment Mortgages registered since the enactment of the 2009 Act are now treated the same regardless of whether the title is registered or unregistered and the law now allows for the enforcement of Judgment Mortgages against jointly owned land in both the Land Registry and Registry of Deeds.
To enforce the Judgement Mortgage an accurate description of the property should be obtained, and a detailed investigation of the title should be undertaken prior to proceeding to register the Judgment Mortgage in the Registry of Deeds or the Land Registry. Particular attention should be paid to ensure that there is adequate access to the property in question.
Upon successful registration of a Judgment Mortgage in the Registry of Deeds and the Land Registry a Judgement creditor can then apply to Court to enforce the Judgment pursuant to S.117 or S.31 the 2009 Act. S.117 essentially allows a creditor, to apply for a Well Charging Order and to apply to the Court to sell the property.
It’s important to note that the old law applies to any Judgments registered prior to the 2009 Act and a cautious approach should be taken when considering same.