NEWS & PUBLICATIONS

RE-MORTGAGING: THE BENEFITS AND PROCESS

With the future departure of Ulster Bank and KBC from the Irish Retail Banking sector in mind, and the questions many customers find themselves asking about the need to switch banks and what will happen to their mortgages, customers and non-customers alike ought to consider the possible benefits of switching their mortgage to another bank.

While much has been written about the departure of Ulster Bank and KBC from the Irish market, borrowers can be assured that there is still competition out there owing to new entries to the market, to include Avant Money and Finance Ireland. These new entrants together with the various products on offer from the main pillar banks provide borrowers with a number of options to meet their specific needs.

Re-mortgaging (also known as switching) can offer borrowers the chance to: –

    • Shorten the term of their mortgage;
    • Obtain a more competitive interest rate;
    • Obtain a fixed interest rate for a number of years; or
    • Raise finance for improvements/alterations to your home.

The process of re-mortgaging your home would generally be as follows: –

    1. Find the right product for your requirements. This may be done either by carrying out your own due diligence with a number of banks to see who can best suit your needs or instructing your mortgage broker to do so. Many of the banks are offering varying incentives with each product, to include payment of legal fees, cash back offers, and low interest rates for certain loan to value ratios.
    1. Once you have found the right product, instruct your solicitor that you are re-mortgaging to enable them take the next steps in the process on your behalf.
    1. Your solicitor will carry out the legal due diligence to certify the title to the new bank. Once all requirements are met to enable drawdown of the new mortgage, your solicitor will obtain funds to clear the existing mortgage. Thereafter your solicitor will deal with post drawdown requirements. From this point forward, you will pay your mortgage to your new lender.

J.W. O’Donovan LLP has a very experienced property team who are confident that they will be able to assist you in the re-mortgaging of your property. Should you have any queries, please contact Colm Tobin, Associate Solicitor, by email at ctobin@jwod.ie or by phone at 021-7300200.

DEADLINE LOOMING FOR REGISTRATION OF CERTAIN INFORMAL RIGHTS OVER LANDS

The Land & Conveyancing Law Reform Act, 2009 (“the 2009 Act”) introduced significant changes to the way certain informal rights over lands can be acquired through long use (referred to legally as being acquired by prescription) as opposed to by way of formal Grant, Deed, Statute or otherwise.

Many properties rely on rights in, under or over another’s property, e.g., right to cross over a laneway to access your property or the right for water to run through pipes under a neighbour’s land to service your own.  In many cases, such rights are formally granted and referred to in your Title Deeds but others are acquired by long use over the years.

TYPES OF RIGHTS AFFECTED

    • An “easement” is a right which an owner of land has over neighbouring land, e.g., right of way to access the land or a wayleave for the running of services, e.g., water, drainage etc. from the public services to the land or a right to support or light. Such rights exist for the benefit of the land and usually pass with the land on a sale or other disposal.
    • A “profit a prendre” is a right to take something from another’s land, e.g., to cut timber or turf, fish, extract water etc.

The use of the easement or profit at all times must be open, without permission (oral or written), without force or secrecy.

This note will focus on easements which are relied on more regularly than profits.

CURRENT POSITION

Up to 30th November next, 2021,  applications for registration of easements can be made to the Land Registry where there is consent from the neighbouring landowner, or at least no objection.  Otherwise, the application has to be made to the Circuit Court.  The application must be based on the following use periods:

    • 20 years (except over the foreshore)
    • 40 years in the case of an easement over the foreshore.

The use does not have to continue up to the date of the application, i.e., there can be some interruption in the use over the years.

Prior to the 2009 Act, it was not necessary to register an easement.  For conveyancing purposes, a Statutory Declaration as to long use setting out details of the user was accepted by purchasers and lending institutions as evidence of the right and entitlement.

NEW RULES

The 2009 Act provides that it is necessary to register prescriptive easements (and profits a prendre).  With effect from the 1st December 2021, applications for registration will be based on the new rules which provide for the following use periods:

    • 12 years (except over lands owned by the State including the foreshore)
    • 30 years in the case of lands owned by the State (other than the foreshore)
    • 60 years in the case of rights over the foreshore.

Importantly, the 2009 Act excludes any period of use prior to it coming in to force on 1st December 2009 and, in addition, the use must be up to the date that the application is made.

SIGNIFICANCE OF CHANGES

The 2009 Act provides for automatic extinguishment generally of prescriptive easements after 12 years continuous non-use. While use preserves the right, registration gives absolute protection.

The effect of the changes is most obvious in the case of easements over State lands.  Because the 2009 Act excludes periods of use prior to the 1st December 2009, if you have not registered an easement over State land by 30th November 2021 then it cannot be acquired over foreshore until at least December 2069 and in the case of other State lands, December 2039, notwithstanding you may have had a right to register under the old rules.

While there is a 12 year period between the commencement of the 2009 Act and the change in rules, there are also potential difficulties with regard to all easements if there are any breaks or gaps in the use period.

This is of particular concern in the case of rights of way to access property or wayleaves for essential services, as lending institutions will require that appropriate easements for access to and services for a property be in place before they will lend on the security of a property and accordingly, the risk is that not only could failure to register under the old rules result in an easement being lost, but also that both the value of and ability to sell a property would be seriously impaired.

CONCLUSION

The time to consider the impact and to act, if necessary, is now.  Anyone relying on either a prescriptive easement or profit a prendre should consult with their legal advisor to consider whether, in their particular circumstances, it is necessary or desirable that the registration be effected prior to 30th November next.  It is not clear from the 2009 Act whether the old rules will continue to apply in the case of applications made but not completed prior to 1st December 2021 and accordingly, it is recommended that anyone who may be affected would act as soon as possible.

For further information on this issue, please contact Pat Bradley, Niamh O’Connor or Kim Walley in our property department.

Professional Wellbeing Charter

J.W. O`Donovan LLP is proud to announce that we have become a signatory to the Law Society of Ireland Professional Well Being Charter. The Charter is aimed at improving the mental health and wellbeing of employees by eliminating unnecessary workplace stress through improved working practices.

The focus on mental health has increased in the workplace over the past few years and as the Covid- 19 pandemic continues to take its toll, employees are facing greater mental health challenges. Employees have had to adapt to working from home, video conferencing and similar technology instead of face-to-face contact. While use of these tools has allowed employees to maintain productivity and engagement levels, remote working for some may have resulted in longer working hours and an inability for employees to “switch off”.

As signatories to the Charter, we are committed to ensure that policies, procedures and processes are in place that safeguard employee mental health and work to reduce stigma associated with mental health in the workplace. We are also committed to raising awareness of the challenges and championing behaviours, skills and practices which promote and enable professional well-being at all levels and across all roles, in our workplace.

For more information, the Professional Well Being Charter may be viewed on the Law Society of Ireland website.

https://www.lawsociety.ie/globalassets/documents/wellbeing/professional-wellbeing-charter-el-2021.pdf

Social Media and Internet Usage Policies: Are Your Employees Putting You and Your Company at Risk?

The current covid-19 crisis has led to a significant increase in the number of employees working from home, using electronic devices and communicating virtually with colleagues, clients and competitors.

This increased reliance on such technologies substantially increases the risk for employers and company officers being held vicariously liable for acts committed by their employees while communicating online or via electronic devices. Furthermore, the Government has recently enacted the Harassment and Harmful Communications and Related Offences Act 2020 (“the Act”) which has a particular focus on prohibiting certain electronic communications and specifically provides that employers and company officers can be held criminally liable for acts committed by its employees.

Employers may be ordered to pay significant damages to third parties and can also be criminally prosecuted for their employees’ actions where such actions are found to be in breach of the following:

    1. Equal Status Acts 2000-2018 – prohibits discrimination on nine grounds including gender, age, race, marital status, religion and disability;
    2. Data Protection Act 2018 – governs the use of personal data;
    3. Defamation Act 2009 – prohibits the publication of defamatory statements;
    4. Intellectual Property Laws – protects Intellectual Property Rights such as copyright and trademarks;
    5. Harassment and Harmful Communications and Related Offences Act 2020 – prohibits the distribution, publication or sending of threatening or grossly offensive communications.

Just as employers can be liable for physical or verbal acts committed by its employees which are in breach of the above provisions, this liability also applies to acts committed electronically or virtually by employees and includes:

    1. Publications by an employee on the company social media accounts such as Facebook, Twitter, LinkedIn;
    2. Publication by an employee on their own personal social media accounts
    3. Emails sent by an employee from a company email address;
    4. Communications sent by an employee from work devices such as mobile phones and laptops.
    5. Messages, videos and links sent via WhatsApp or other messaging apps while in the workplace or for purposes connected to the employment.

To combat this increasing risk to employers the introduction of Social Media and Internet Usage Policies which clearly set out the company’s policies in relation to the use of social media accounts, both connected to the company and personal accounts as well as communication via electronic devices such as laptops and phones provided by the company or used in the workplace can offer significant peace of mind to employers and company officers. A Social Media and Internet Usage policy which is effectively communicated to employees can act as an invaluable defence to employers and company officers who find themselves being pursued by injured parties in a civil claim or by the state for criminal proceedings for acts committed by their employees in the workplace or using company devices or accounts. These policies will also provide increased protection for a company’s reputation, which can be negatively impacted by adverse acts committed by its employees, if it can be shown that the company expressly condemned such acts through the introduction of various policies.

Furthermore, in many cases these policies can be relied upon by employers to justify dismissal of an employee where the employee acts in contravention of these policies, which have been expressly communicated to them and form part of their contract of employment.

Every company is different and all policies can be tailored to the specific requirements and preference of each company in consultation with the employer and employees, where this is preferred. We have extensive experience advising clients from large multi-nationals to indigenous enterprises in relation to workplace policies and can offer assistance to any employer or company officer seeking for advice in relation to any of the above.

For more information on this topic please contact David Pearson, Partner and Head of Employment Law at J.W. O’Donovan LLP, by email at dpearson@jwod.ie or Michelle Cross, Trainee Solicitor by email at mcross@jwod.ie.

Fair Procedures & Employment Injunctions

The Court of Appeal in Ireland this week delivered a seminal judgment that will make the obtaining of injunctions restraining the dismissal of employees more difficult for employees.

The Court determined that if an employer has a contractual right to dismiss an employee on notice without giving any reason a Court cannot imply a term into the contract that the dismissal can only take place if fair procedures have been afforded to the employee, except where the employee is dismissed for misconduct.

The extensive written Court of Appeal decision in O’Donovan V Over-C Technology allowed an appeal against an earlier order of the High Court granting an injunction restraining the employer from dismissing an employee on probation, for performance issues where the dismissal was on notice and summary and without fair procedures having been applied.

The effect of the decision in O’Donovan V Over-C Technology is that the principles of natural justice or fair procedures apply to cases involving dismissal for misconduct but not to termination on other grounds. There is no legal basis to argue that the principles applicable under the Unfair Dismissals Acts should be imported into the common law.

It is important to note this judgment relates solely to injunctions seeking to prevent dismissals of employees.

The separate statutory rights of qualifying employees not to be unfairly dismissed under the Unfair Dismissals Acts continue. An employer remains obliged to implement the principles of fair procedures under the statutory code or face orders of reinstatement, reengagement or compensation for employees who are dismissed.

For more information on this topic please contact David Pearson, Partner and Head of Employment Law at J.W. O’Donovan LLP, by email at dpearson@jwod.ie

LANDMARK HIGH COURT DECISION IN FBD COVID-19 CLOSURES CASE

Today, the High Court has ruled that four pub owners are entitled to be compensated by their Insurer, FBD, for the disruption their businesses suffered due to the Covid-19 pandemic.

Mr. Justice Denis McDonald found that a policy sold by FDB covered losses that the pubs sustained by having to close due to the global health crisis.  The actions were taken by three Dublin bars, namely; Sinnotts, The Leopardstown Inn and Lemon & Duke, as well as Sean’s Bar in Athlone.

The Publicans claimed that they were entitled to have their losses, which were caused by Covid-19, covered under their insurance policies. However, the argument FBD put forward these bar closures were not caused as a result of the outbreak of a disease at the premises or within 25 miles of them.  FBD submitted that the closure was caused by nationwide outbreaks of the disease and such was not covered under the policy.

Although Judgment was due to be delivered in January, the decision of Mr. Justice McDonald was deferred to allow the parties make submissions to the court arising out of the recent Supreme Court of England and Wales Judgment where similar issues were raised.

Under the terms of the pub owners’ policies of insurance, each claimed the following :-

  1. Under the terms of their insurance policies taken out with FBD, they were entitled to have their consequential losses covered by what they claimed is an insurable risk.
  2. By failing to pay out on the policy, the Insurer was in breach of contract.
  3. The policies taken out with FBD contain a clause which states the pubs will be indemnified if their premises were closed by order of the government or local authorities if there are “outbreaks of contagious and infectious diseases on the premises or within 25 miles of same.”

Lawyers for FBD advised the Court that it has never provided cover for a pandemic and no one in Ireland had asked for it.

However, Mr. Justice McDonald was of the view that it was essential to keep in mind that the FBD policies were designed specifically for the pub trade and the nature of that trade is therefore a key aspect of the context against which the policy is to be construed.  Furthermore, Mr. Justice McDonald stated “In the years since section 3 of the FBD policy was devised, a number of significant outbreaks of infectious diseases have occurred.  For example, there was a Swine Flu pandemic in 2009.  We have also witnessed the emergence of SARS in 2003, albeit that it was largely confined, at that time, to the Far East”.

Mr. Justice McDonald disagreed with FDB’s interpretation of its policy. He held that cover was not lost where the closure was caused by nationwide outbreaks of disease, provided there is an outbreak within 25-mile radius and that outbreak was one of the causes of the closure. He stated such outbreaks were a cause of the closure of the pubs announced by the Government on the 15th March last year.

The Judge ruled that while the issue of quantifying the losses suffered by the publicans will be dealt with at a later date, he would not be awarding aggravated damages to the Plaintiff.

The case will be back before the Court on the 17th February and it is clear that this decision will cause FBD considerable difficulty as it would appear that they had issued a large number of similar policies. It is noted that FBD has made a substantial reserve in its account to cover this risk.

This decision has been welcomed by publicans all across the country given the disastrous impact of the pandemic on the pub trade, however, it has yet to be seen whether an appeal will be lodged by FBD Insurance.

A copy of the full Judgment can be viewed by clicking on the following link: https://www.courts.ie/acc/alfresco/8bfaa5dd-3ea3-4580-979f-0dfb2d8243be/2021_IEHC_78.pdf/pdf#view=fitH

If your business has been adversely affected by the Covid-19 Pandemic and you would like further information in relation to any of the above please contact Ciara Lehane, Associate Solicitor by email to clehane@jwod.ie or call 021-7300200.

This article will be updated further once issues on quantum have been decided.

Remote Working & Right to Disconnect: A Possible Future Entitlement?

The Government has published a new strategy to facilitate employees requesting remote working arrangements in parallel a right to disconnect. It is intended to introduce legislation in September 2021.

Under the strategy employees will be entitled to apply to their employer for remote working arrangements.  While an employee will not automatically be entitled to remote working arrangements the employer will be obliged to provide reasons as to why the request cannot be facilitated.  A dissatisfied employee will have the right to appeal any refusal for remote working arrangements to the Workplace Relations Commission.

The Government in parallel will introduce protections for employees to “disconnect” from emails and phones during switch-off time.  The right to disconnect will be underpinned by a legally enforcement Statutory Code of Conduct that employers will be required to follow.

The Government strategy seeks to facilitate increased levels of remote working while mitigating any negative impacts.

The Government is now engaging with all stakeholders prior to introducing the legislation and is separately reviewing the treatment of remote working for tax purposes.

For more on this topic, please contact David Pearson, Partner and Head of Employment Law at J.W. O’Donovan LLP by email at dpearson@jwod.ie.

15 January 2021

Focus Ireland Shine a Light Campaign

We wish to extend our warmest thanks to our clients, colleagues, staff and friends who contributed so generously to the recent sleep-out by our partners Jerome O’Sullivan, David Pearson and John Fuller as part of the Focus Ireland Shine a Light Campaign. Having set a target to raise €5,000 we were simply overwhelmed by the flood of donations which has yielded in excess of €18,000. This is a testament to your appreciation of the tremendous work being done by Focus Ireland to combat homelessness in Ireland.

We also wish to sincerely thank Christine Moloney and her team at St. Peter’s Church for allowing us to do the sleep-out on the grounds of St. Peter’s.

Focus Ireland Shine a Light Night 2020

On Friday 16th October, Jerome O’Sullivan, David Pearson and John Fuller (Team JWOD) will be leaving the comfort of our beds for one night to sleep-out in the grounds of St Peter’s Church, North Main Street, Cork on Shine a Light Night to support people experiencing homelessness and raise vital funds for Focus Ireland. Whilst you are tucked up in bed, we will be sleeping on cardboard battling Ireland’s cold and possibly wet weather with just a sleeping bag and a cup of soup. We greatly appreciate the generosity of the team at St Peters Church in facilitating us on their grounds

The Covid-19 pandemic has been a huge challenge for us all, and it has been particularly challenging for the many men, women, families and children who are homelessness or at risk of homelessness. Focus Ireland relies heavily on support from business leaders on Shine a Light Night to raise vital funds for their work, and we need to support them now more than ever.

People experiencing homelessness are among the most vulnerable in society and Focus Ireland have seen a 49% increase in the demand for their services throughout the pandemic. People experiencing homelessness are more likely to have an underlying health issue and are unable to follow basic COVID-19 recommendations to stay at home and keep socially distant from other people.

We were shocked to realise that there are over 8,728 people homeless in Ireland and over 2,650 are children. We have signed up to host a virtual sleep-out so we as individuals and J W O’Donovan can play our part in helping Focus Ireland provide vital prevention services and change people’s lives. Focus Ireland believe that homelessness can be ended and work to break the cycle of homelessness by giving people access to information, housing, childcare and a range of education services throughout Dublin, Cork, Kilkenny, Limerick, Sligo, Waterford, Clare and Wexford.

As a valued client we are now asking for your help. You can help to end and prevent homelessness in Ireland by sponsoring me to take part in the virtual sleep-out. We have committed to raise €15,000 by 16th October, so please demonstrate your solidarity by sponsoring Team JWOD today.

To sponsor us, go to our fundraising page or send a cheque to us made payable to ‘Focus Ireland.’

Please give what you can as every donation is greatly appreciated; together we can help to change the homeless landscape across Ireland and be a part of the difference in people’s lives.

Kind Regards

JW O’Donovan LLP

 

CODE OF CONDUCT FOR LANDLORDS AND TENANTS OF COMMERCIAL PROPERTIES

The Government has published a Code of Conduct between Landlords and Tenants for Commercial Rents as a response to the impact of COVID-19 on the economy and the resulting difficulties experienced by many businesses in meeting their lease obligations in rented property.  This Code of Conduct appears to be very similar to the Code of Practice for Commercial Property Relationships during the COVID-19 Pandemic published by the UK Government in June.

Why have a Code of Conduct and what will it achieve?

The stated intention of the Code is to “promote and reinforce good practice in landlord and tenant relationships as they deal with income shocks caused by the pandemic”.  It is important to note that it is a voluntary code with no statutory basis.  Landlords and tenants both remain obliged to comply with the contractual obligations in the relevant leases and the underlying principles of Landlord and Tenant law.  In theory therefore, both parties can choose to ignore the Code, and landlords in particular are not prevented from pursuing debt recovery, ejectment and other proceedings where tenants have not complied in full with lease obligations.  It is likely however that when any such proceedings come before the courts, regard may be had to the extent to which either or both parties acted in accordance with the Code.  For example, a landlord seeking an ejectment order against a tenant may find that the court allows the tenant some leniency in the form of additional time to meet its obligations in circumstances where the landlord has not engaged with the tenant as envisaged by the Code.

What is in the Code?

In many respects, the principles outlined in the Code could be considered to reflect a “common sense” approach to negotiations between landlords and tenants.  Commercial landlords recognise that it is not to their benefit that the business of their tenants should fail, so there is a mutual interest in agreeing revised terms that work for both parties.

Some of the principles outlined in the Code are as follows:

    • Tenants who are in a position to pay in full should do so.
    • Landlords should provide assistance to a tenant where reasonably possible having regard to their own financial responsibilities.
    • It is recognised that landlords may be constrained by their own financial obligations, and any concessions to tenants would require the consent of lenders.
    • Both parties should act reasonably swiftly, transparently and in good faith in order to identify and implement mutually beneficial solutions.
    • Alternative dispute resolution mechanisms should be used if necessary.

The Code suggests a number of possible arrangements that might be availed of and many of these, such as rent-free periods, rent deferrals, rent variations and turnover rents, are already being implemented in many landlord and tenant arrangements.

The Code recognises that service and insurance charges arrangements are not profit-making, and such charges need to be paid in full, although landlords are encouraged to take measures to reduce such charges wherever possible, and also to vary payment arrangements if possible to aid tenant cashflow.

Will the Code have any effect?

It remains to be seen whether the publication of this Code will have any material impact on dealings between landlords and tenants.  Most landlords have already recognised that many of their tenants need assistance to survive and it is likely that that this commercial reality will continue to be the greater influencing factor.

Link to the Code: https://dbei.gov.ie/en/Publications/Code-of-Conduct-between-Landlords-and-Tenants-for-Commercial-Rents.html

For further information on this topic, please contact Jerome O’Sullivan (josullivan@jwod.ie) or Ciara McDonnell (cmcdonnell@jwod.ie)