Affordable Housing Act 2021
Realisation of affordable dwelling equity by housing authority
19. (1) Where, following the service of a realisation notice, in the reasonable opinion of the housing authority, the affordable dwelling has been abandoned by the homeowner and is at risk of destruction or damage or its use or condition constitutes a risk to the health or safety of any person, the housing authority shall be entitled to enter upon, secure and take possession of the affordable dwelling pending the realisation or redemption in its entirety of the affordable dwelling equity and in such case the housing authority shall not be liable to the homeowner for any loss save for any damage caused to the affordable dwelling by the housing authority in the course of effecting such entry or during such possession.
(2) Where a housing authority takes possession of an affordable dwelling under subsection (1) it may return possession of the dwelling to the homeowner if it is satisfied that the risks have abated.
(3) Upon the expiration of the period specified in the realisation notice, or such further period as may be specified in writing by the housing authority—
(a) subject to the provisions of this subsection, the housing authority shall be entitled to sell, or concur with any other person in selling, the affordable dwelling and shall have all powers reasonably necessary to effect such sale, including the powers set out in subsection (4),
(b) for the purpose of effecting such sale, the housing authority shall be entitled to demand and take possession of the affordable dwelling, giving not less than one month’s notice (save in exceptional circumstances where delay would prejudice the housing authority’s ability to realise the affordable dwelling equity),
(c) unless possession has been yielded up by the homeowner, the housing authority may—
(i) peaceably enter and take possession of the affordable dwelling, or
(ii) apply to the Circuit Court for the county in which the affordable dwelling is situate in a summary manner to be prescribed by rules of court for an order for possession of the affordable dwelling,
(d) on the hearing of an application for possession, the Circuit Court shall, on proof that a valid realisation notice has been served and that the affordable dwelling equity has not been redeemed in its entirety, order that possession be granted to the housing authority subject to such stay on execution, not exceeding 6 months, as it thinks fit,
(e) upon taking possession of the affordable dwelling, the housing authority shall, within a reasonable period, take steps to exercise the power of sale and to sell the dwelling at the best price reasonably obtainable within that period,
(f) the housing authority may demand and recover from any person, other than a person having in the affordable dwelling an estate or interest in priority to the affordable dwelling equity, all deeds and documents relating to the affordable dwelling, or its title, which a purchaser under the power of sale would be entitled to demand and recover, and
(g) the housing authority shall not be answerable for any involuntary loss resulting from the exercise or execution of the power of sale, of any trust connected with it, or of any power or provision contained in the affordable dwelling purchase arrangement.
(4) Incidental to the power of sale in subsection (3)(a) are the powers to—
(a) sell the affordable dwelling—
(i) subject to prior charges or not,
(ii) by public auction, tender or private contract,
(iii) subject to such conditions respecting title, evidence of title, or other matter as the housing authority or other person selling thinks fit,
(b) rescind any contract for sale and resell the affordable dwelling.
(5) Subject to the terms of any agreement referred to in section 13(3) nothing in this section shall prejudice the rights of any mortgagee of the affordable dwelling and, for the avoidance of doubt, a housing authority that has taken possession of an affordable dwelling pursuant to this section may hand over the possession of the affordable dwelling to any such mortgagee having an entitlement to such possession on demand therefor by the mortgagee, and, without prejudice to the right of the housing authority to resume such possession by agreement with such mortgagee, such mortgagee may proceed to sell the affordable dwelling and where it does so section 17(11) will apply.
(6) At any time after the service of a realisation notice, the housing authority may—
(a) demand and obtain from any mortgagee whose mortgage ranks in priority to the affordable dwelling equity particulars of the moneys secured on such mortgage and any ancillary information reasonably necessary to exercising its powers under this section, and
(b) exercise the powers referred to in subsection (3)(f) notwithstanding any priority of such mortgage.
(7) Neither the power of sale nor the right to possession nor any other right or power of the housing authority shall be postponed by the service of any notice to make a redemption payment or for consent to sell the affordable dwelling or any procedures arising therefrom, provided that the housing authority shall be entitled to grant such extensions of time as it considers appropriate to facilitate any such notices or procedures.
(8) If, upon entry by the housing authority into possession of the affordable dwelling, there is any furniture or there are any other goods of the homeowner in or about the affordable dwelling, the housing authority shall be entitled to serve notice on the homeowner to remove the same and any furniture or goods not removed within a period of 21 days beginning on the date on which the notice is served may be removed and stored, sold, destroyed or otherwise disposed of as the housing authority deems appropriate, by the housing authority as agent for the homeowner, and at the expense of the homeowner, and any moneys realised on any sale of the furniture or goods shall be held as part of the residue of the proceeds of sale referred to in subsection (17).
(9) A housing authority exercising the power of sale conferred by this section, or an express power of sale in the affordable dwelling purchase arrangement, shall have the power to convey the affordable dwelling—
(a) freed from all estates, interests and rights in respect of which the affordable dwelling purchase arrangement has priority,
(b) unless discharged by the housing authority, subject to all estates, interests and rights which have priority over the affordable dwelling purchase arrangement.
(10) Subject to subsection (11), a conveyance by the housing authority—
(a) vests the entire estate or interest of the homeowner and the housing authority in the affordable dwelling in the purchaser freed and discharged from the affordable dwelling equity,
(b) vests any fixtures included in the affordable dwelling and the sale in the purchaser.
(12) Where a conveyance is made in professed exercise of the power of sale conferred by this section, the title of the purchaser is not impeachable on the ground—
(a) that no realisation event had occurred to authorise service of the realisation notice,
(b) of any actual or alleged irregularity in the realisation notice or in the service thereof, or
(c) that the power of sale was otherwise improperly exercised,
and a purchaser is not, either before or on conveyance, required to see or inquire whether the power of sale was properly exercised.
(13) Any person who suffers loss as a consequence of an unauthorised or improper exercise of the power of sale has a remedy in damages against the housing authority exercising the power.
(14) The receipt in writing of a housing authority exercising the power of sale conferred by this section is a conclusive discharge for any money arising under the said power of sale and a person paying or transferring the same to the housing authority is not required to inquire whether any money remains due to the housing authority pursuant to this Part.
(15) Following the completion of the sale, the monetary value of the affordable dwelling equity shall be determined in accordance with the valuation mechanism in accordance with the following formula:
X% x (€Y - €Z)
(a) X% is the affordable dwelling equity as stated in the affordable dwelling purchase arrangement unless redemption payments have previously been made, in which case it shall be the affordable dwelling equity as revised pursuant to the last previous redemption payment made,
(b) €Y is the market value of the affordable dwelling provided that for the purpose of such determination, the price referred to in section 14(1), to be adjusted (if relevant) by reference to the matters referred to in paragraphs (a) and (b) of section 14(1), shall be the actual sale price, and
(c) €Z is the amount of the vouched charges, costs and expenses properly incurred by the housing authority as incident to the sale.
(16) Money received by the housing authority that arises from the sale of the affordable dwelling shall be applied in the following order—
(a) in discharge of prior incumbrances, if any, to which the sale was not made subject or payment into court of a sum to meet any such prior incumbrances,
(b) in payment of all charges, costs and expenses properly incurred by the housing authority as incident to the sale or any attempted sale or otherwise,
(c) in discharge of the affordable housing equity and any costs and expenses properly incurred by the housing authority in any proceedings necessary to recover possession of the affordable dwelling.
(17) Any residue of the money received by the housing authority after the discharge of the amount due under subsection (16)(c) shall be held by the housing authority upon the trusts provided for in section 107(3) of the Conveyancing Act and distributed accordingly.
(18) If the proceeds held are insufficient to discharge the amount due to the housing authority under subsection (16)(c), the balance due to the housing authority shall be recoverable by the housing authority from the homeowner as a simple contract debt.