Fines (Payment and Recovery) Act 2014: conveyancing implications
The Fines (Payment and Recovery) Act 2014 came into operation on 11 January 2016 by virtue of SI no 6 of 2016.
The Act provides that a court that has imposed a fine of not less than €500 can appoint a receiver (‘receiver’ means a sheriff or an approved person appointed under section 8(1)(a)) to recover fines. The power of a receiver so appointed includes the power to seize real property and exceeds those powers already vested in sheriffs for enforcement of tax warrants and court orders. As a result, it will now be necessary to carry out a search in the receiver/sheriff’s office prior to closing a sale or a mortgage against all property, both leasehold and freehold.
The search should be done against the name of the vendor/mortgagor in the office of the receiver of fines where the property is located. In the counties and cities of Dublin and Cork respectively, the receiver of fines is the existing sheriff. In all other counties, the receiver of fines is the revenue sheriff.
Points of note include:
Section 7 of the act provides that recovery orders for fines over €500 may be made by the court, Section 8 provides for the appointment of a receiver in default of payment of the fine to recover the unpaid fine, together with the fees and expenses of the receiver, or seize and sell property belonging to the fined person and recover from the proceeds of sale a sum equal to the amount of the unpaid fine and the fees and expenses of the receiver, Section 8(16) defines ‘property’ as land and personal property, On reading the act, it would appear that the property does not vest in the receiver until he takes possession of same. Where a sheriff receiver is appointed and a contract for sale has already passed on the beneficial interest in the property to a purchaser, it is the view of the committee that the receiver can only follow the proceeds of the sale. Practitioners should also familiarise themselves with the powers of the receiver under section 8(3)(f) and section 8(3)(7) of the Act.
In respect of contents passing in such a sale, the position is as in the preceding paragraph, in that, if they have sold to a third party, then the receiver’s interest transfers to the proceeds of sale.
The practice of searching in the county registrar’s office outside of the cities and counties of Dublin and Cork should also continue in respect of leasehold commercial property.
It is anticipated that the profession will first encounter recovery orders in practice in or around late 2016, and it remains to be seen how the new legislation will work out in practice. The committee will keep the matter under review and would appreciate feedback from practitioners on any difficulties they encounter in practice.
The identity of sheriffs or revenue sheriffs is listed in the Law Society’s Law Directory.
You should satisfy yourself that your law searchers are carrying out the searches you require by establishing with them what offices they search in when asked to carry out specified searches.