Judgement Mortgages
General
Any person who obtains court judgment for a fixed sum may create a judgment mortgage on the debtor’s property in the manner prescribed. The registration of a judgment mortgage creates a statutory mortgage over the interest of the judgment debtor in the lands concerned.
A judgment mortgage is created and registered by lodging an affidavit in the requisite form in the Land Registry or Registry of Deeds, depending on whether the land to be affected has registered unregistered title, respectively.
The Circuit Court (Registration of Judgments) Act 1937 allowed judgments of the Circuit Court to be registered as judgment mortgages under the older legislation. Similarly, decrees of the District Court may be registered as judgment mortgages under the Courts Act of 1981.
A joint and several judgment against two or more persons may be registered against the separate property of any one of them. This may be done in single judgment mortgage affidavit.
The general presumption is that a creditor does not, by agreeing to payment in instalments or agreeing to accept a smaller sum,  preclude himself from registering a judgment mortgage for the smaller sum where appropriate, without taking proceedings to enforce the amount due in the event of failure to pay an instalment. The position will be determined by the terms of the agreement.
A judgment may be registered against any real property (land/land and buildings) Â in which the judgment debtor has a legal or beneficial interest or has any power of disposition, which he may exercise for his benefit.
2009 Reforms
It had been recommended many years ago, that the judgment mortgage be replaced by a charging order application to the court. In England and Wales, a further court application and order is required for a court order for money due to be registered against the defendant’s property. The courts have an element of discretion as to whether to grant a charging order.
The 2009 law reforms preserve the principle of a judgment mortgage while modernising and removing some anomalies. They preserve the principle that a court application is not necessary and that there is, therefore, a right to register against a defendant’s land and buildings. The legislation confirms that the creditor who registers a judgment mortgage obtains rights equivalent to a mortgage by the debtor for the amount of the judgment debt.
The 2009 Reforms simplify the formalities for registration of a judgment mortgage. A judgment mortgage will have to be registered in the Companies Registration Office within  21 days. A judgment mortgage will be subject to a claim under the Family Home Protection Act, judicial separation or divorce legislation.
Registration of the judgment mortgage will not sever a joint tenancy. On the death of a joint owner subject to a judgment mortgage, the judgment mortgage will terminate.
The former right of the sheriff to seize leasehold land was abolished by the 2009 reforms, except for land used for business purposes.
Deemed Mortgage
The registration of a judgment mortgage is deemed to be a mortgage by the defendant owner to the judgment creditor over the property concerned. The judgment mortgage is deemed to be a mortgage for the amount due. As it is equivalent to a mortgage, the issues in relation to the priority arise in the same way as in relation to mortgages voluntarily created by the owner.
A judgment mortgage is weaker than a normal mortgage in certain respects. A judgment mortgage given within three months of bankruptcy is invalid if the debtor becomes bankrupt within three month
s. A judgment mortgage given after a contract for sale is entered, does not attach to the property. There are certain weaknesses with judgment mortgages against jointly owned property. In addition, because of the technicality of the older law, judgment mortgages are very vulnerable to challenge if there is any flaw in their creation.
Pre-2009 Act Requirements
The rules as to registration are technical and in some cases require details such as the 19th-century Civil Parish and Barony, descriptions and occupation of the defendant and addresses. If there is any defect in the judgment mortgage, the judgment mortgage will not be validated by the courts. The courts do not have the discretion to correct the details.
The requirements of the older 1850 legislation, in particular with reference to unregistered title land, gave rise to a good deal of litigation on the occasion of enforcement.  The requirements for registration were interpreted strictly and an affidavit might be deemed invalid and ineffective if it did not contain the precise requisite details. Not surprisingly, judgment debtors sought to rely on any apparent failures of compliance in order prevent the grant of a well charging order and order for sale. There was no jurisdiction in those proceedings, to rectify errors in the affidavit.
The pre-2009 legislation required details of the title of the action, the last known place of abode of the parties, title, trade or profession of the parties, the location of the land to be mortgaged, giving the county or barony or town and part (or Land Registry folio) number, amount of the debt or damages, date, a statement that the person against whom judgment is sought had an interest, the power of disposition over the lands in question. The omission of any of the requirements was fatal to the validity of the judgment mortgage.
In unregistered title cases (Registry of Deeds), the old civil parish or barony was required to be set out. The Baronies were ancient divisions of counties, most of which have fallen into disuse. The parish refers to the historical established Church (Church of Ireland)Â Â parish. An improperly registered judgment mortgage was void against subsequent mortgagees and other registered judgments.
A pre-2009 Act affidavit was required to state the title, trade or profession of the party. A misdescription of a person, trade or business was sufficient to invalidate the judgment mortgage. Where the debtor did not have a definite trade or profession, the description gentlemen, gentlewomen or widow might be used. If a person had a trade or profession, a description with reference to marital status did not suffice. In such cases, it was sometimes e possible to rectify the matter by an amending memorandum of registration.
The judgment mortgage must set out the amount of the debt and costs. Third parties are entitled to know the highest amount charged.  The particulars must identify the identify the parties including, in particular, the judgment debtor concerned. It should enable him and others clearly distinguish himself from other persons of the same or similar names.
As accurate a description as possible of the lands concerned was and is required. The registration was not invalidated by addition of unnecessary or even erroneous descriptive details nor by a marginal inaccuracy in the amount of lands referred to. The omission of the county, barony or parish same where required, invalidated the affidavit. Reference to a non-existing parish or barony invalidated the affidavit.  In case of the registered land, a reference to the folio number suffices.
2009 Act Requirements
The 2009 Reforms simplify the requirements and the technical pitfalls in registration.A model form of affidavit to create a judgment mortgage has been prescribed under the 2009 Act. Broadly speaking, its requirements are less onerous.
The affidavit must be sworn by the judgment creditor or certain persons who have been authorised. It must be sworn by an authorised agent in the case of a corporate judgment creditor.
Registration operates to mortgage or charge the debtor’s beneficial ownership in the land concerned. In the case of registered title, there is deemed to be a charge of the land. The judgment mortgage is registered in the Registry of Deeds in the case of unregistered title and in the Land Registry in the case of registered title. The mortgage or charge only applies to whatever interest is owned by the judgment debtor in the property at the date of registration.
A judgment mortgage registered against land takes effect, subject to rights to which the owner of the land is subject. This includes rights of third parties such as squatter ’s rights and an easement in the course of acquisition. A judgment mortgage does not have priority over equitable rights, which are not registered.
Mortgage Issues
A judgment mortgage can be registered against a family home. The spouse’s consent is not required. However, the court has a discretion not to order the sale.
As with other mortgages, judgment mortgages have the power to marshal. See the chapter on marshalling consolidation and equivalent issues.
In the case of a judgment mortgage against a company, the details must be sent to the company within 21 days (not the companies registration office). The company itself is then obliged within three days to register the charge in the Companies Registration Office.
Failure to do so makes the company, its directors, etc., liable to a fine. However, failure to register does not invalidate the judgment mortgage (unlike the case with non-registration of other mortgages and charges). The 2009 Reforms change this position.