In considering whether to grant relief as applied for, a court is to have regard to whether the remedy that the chargee proposes to exercise is reasonably necessary to prevent any further reduction in the value of the charged land or to reverse any such reduction as has already occurred if the charged land consists of agricultural land or commercial premises, and the remedy proposed is to appoint a receiver, or to take possession of or lease the land or a part thereof.
Where the charged land consists of or includes, a dwelling- house, and the remedy proposed is to appoint a receiver, or take possession or lease the dwelling house or a part of it, the court considers the effect that the appointment of a receiver or the taking of possession or leasing the whole or a part of the dwelling house would have on the occupation of the dwelling house by the chargor and dependants and if the effect would be to impose undue disturbance on those owners, the court must be satisfied that:
- The chargee has made all reasonable efforts, including the use of other available remedies available, to induce the chargor to comply with the obligations under the charge.
- The chargor has persistently been in default of the obligations under the charge.
- If the sale is of land held for a customary land, the chargee has had regard to the age, means, and circumstance including the health and number of dependants of the chargor, and in particular whether—
- The chargor will be rendered landless or homeless.
- The chargor will have any alternative means of providing for the chargor and dependants.
- It is necessary to sell the charged land in order to enable the chargee to recover the money owing under the charge.
- In all the circumstances, it is reasonable to approve, or as the case may be, to make the order to sell the charged land.
A court may refuse to authorize an order or may grant any relief against the operation of a remedy that the circumstances of the case require and without limiting the generality of those powers, may—
- Cancel, vary, suspend or postpone the order for any period which the court thinks reasonable;
- Extend the period of time for compliance by the chargor with a notice served under the remedies of a chargee.
- Substitute a different remedy or the one applied for or proposed by the chargee or a different time for taking or desisting form taking any action specified by the lessor in a notice served under section 90;
- Authorise or approve the remedy applied for or proposed by the chargee, notwithstanding that some procedural errors took place during the making of any notices served in connection with that remedy if the court is satisfied that—
If under the terms of a charge, the chargor is entitled or is to be permitted to pay the principal sum secured by the charge by installments or otherwise to defer payment of it in whole or in part but provision is also made in the charge instrument or any collateral agreement for earlier payment of the whole sum in the event of any default by the chargor or of a demand by the chargee or otherwise, then the court may treat as due under the charge in respect of the principal sum secured and of interest on it only the amounts that the chargor would have expected to be required to pay if there had been no such provision for earlier payment.
A court must refuse to authorize or approve a remedy if it appears to the court that—
- The default in issue has been remedied.
- The threat to the security has been removed.
- The chargor has taken the steps that the charger was required to take by the notice served under section 90 of the Land Act, 2012.
- The chargee has taken or attempted to take some action against the chargor in contravention of section 90 (4) of the Land Act, 2012.
Power of the Court to Re-Open Certain Charges and Revise Terms
A court may reopen a charge of whatever amount secured on a matrimonial home, in the interests of doing justice between the parties.
Exercise of Powers to Re-open Certain Charges
A court may exercise its powers on an application made to it by either the chargor or the chargee to enforce the charge or to commence an action for the remedies of a chargee. It may also on an application by the chargor for relief against the exercise by the chargee of any remedy in connection with a default by the chargor under a charge or on an application by the Registrar in respect of charges provided by one or more specific chargees where there is prima facie evidence of a pattern of unfair dealing and practices by that chargee or those chargees.
In reopening the charge, the court may—
- Direct that the charge is to have effect subject to modifications that the court orders.
- Require the chargee to repay the whole or part of any sum paid under the charge or any related or collateral agreement by the chargor or any guarantor or other person who assumed an obligation under the charge whether it was paid to the chargee or any other person.
- Require the chargee to pay any compensation to the chargor which the court thinks fit.
- Direct the chargee, being a corporate body to cease acting in a discriminatory manner with respect to the granting of charges
In considering whether to exercise the powers to reopen certain charges the court considers the following:
- The age, gender, experience, understanding of commercial transaction and health of the chargor at the time when the charge was created, if the chargor is an individual.
- The financial standing and resources of the chargor relative to those of the chargee at the time of the creation of the charge.
- The degree to which, at the time of the creation of the charge, the chargor was under financial pressure and the nature of that pressure.
- The interest rates prevailing at the time of the creation of the charge and during the continuation of the charge and the relationship of those interest rates to the interest rate applying from time to time in the charge.
- The degree of risk accepted by the chargee, having regard to the value of the charged land and the financial standing and other resources of the chargor.
- The importance of not undermining the confidence of reputable chargees in the market for charges.
- Any other factors that the court considers relevant.
Land Act, 2012