IRELAND Law and Practice Contributed by: Diarmuid Mawe, Craig Kenny, Katelin Toomey and William Fogarty, Maples Group
There is a general requirement that Irish compa - nies derive benefit from transactions they enter into. 3.6 Formalities When a Borrower Is in Default Appointing a Receiver A receiver is typically appointed by a secured creditor under contractual powers granted by the debtor under the security document. The receiver’s function is to take possession of the secured assets (including any real estate) and discharge any unpaid indebtedness from the realisation proceeds. The CA provides that a receiver of the property of a company can do all things necessary or convenient to achieve the objectives for which they were appointed. The CA specifies powers that a receiver may exercise (in addition to the powers conferred on them by the order or instru - ment pursuant to which they were appointed, or any other law). It is also possible to apply to the High Court to have a receiver appointed over assets – for example, if a trigger event set out in the secu - rity document for the appointment of a receiver has not occurred, but the secured assets are in jeopardy. Registering Security Interests Before certain security interests created by a company can be valid and have priority over subsequent security interests, they must be registered in the CRO within strict time periods, or the charge may be rendered void against the liquidator and any creditor of the company, and priority will be lost. Where a certificate of charge has been issued by the Registrar, it is conclusive evidence that the charge has been registered. The priority of charges runs from the date of
filing, and not from the date of creation of the charge. Priority of Charges The rules on the priority of charges take effect subject to the rules on priority contained in any other enactment governing the priority of such charges. Consequently, the priority of charges created by companies over real estate will be determined in accordance with the order in which they are registered in the Land Registry or the Registry of Deeds, as the case may be. Enforcement and Realisation of Security The timeframe for the successful enforcement and realisation of security on property in Ireland can vary greatly. If the borrower is co-operative, the enforcement process can proceed smoothly, especially where possession is voluntarily sur - rendered. If the borrower is not co-operative, however, the process can take time and may involve court applications, particularly if the validity of the security is challenged or if posses - sion is not voluntarily surrendered. If a receiver is appointed over the assets of a company, cer - tain statutory filing and advertising requirements must be adhered to. The situation can be more complex where secu - rity is over a principal private residence, and certain conditions set out in the 2009 Act will have to be complied with when enforcing the security. Where the consent of the borrower is not forthcoming, a court order will be required prior to a lender possessing or selling a property. These requirements can cause delays in a lender enforcing its security. An Irish company (or its directors, creditors and shareholders holding at least 10% of the com - pany’s paid-up voting share capital) may peti - tion the High Court to appoint an examiner in
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