Charging Orders under the Housing and Planning and Development Acts

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  1. Section 5(5) of the Housing (Miscellaneous Provisions) Act 1992
  2. Section 99(3A) of the Planning and Development Act 2000
  3. Section 9(3A) of the Housing (Miscellaneous Provisions) Act 2002
  4. Section 26(1) of the Housing Act 2014

General:

A “Charging Order” in this context means an Order by a Housing or Planning Authority charging a property pursuant to its statutory powers under the following:

  1. Section 5(5) of the Housing (Miscellaneous Provisions) Act 1992.
  2. Section 99(3A) of the Planning and Development Act 2000.
  3. Section 9(3A) of the Housing (Miscellaneous Provisions) Act 2002:
  4. Section 26(1) of the Housing Act 2014.

1. SECTION 5 OF THE HOUSING (MISCELLANEOUS PROVISIONS) ACT 1992:

Section 5(1) of the Housing (Miscellaneous Provisions) Act 1992 provides that a Housing Authority may with the consent of the owner carry out or arrange to have carried out, inter alia, works of improvement to a house.

Where the Housing Authority has carried out such works and has entered into a Section 4(4) agreement relating to expenses incurred in respect of the house, it may make an order under Section 5(5) charging the house with the amount of the expenses to be recovered.

Registration of Section 5(5) Charging Orders:
Where the amount of the charge is not provided in the Order or where the charge is payable by periodic payments, the registration to be effected as follows:

Charge for such sums as may become payable under the terms of Instrument No…………..

[Local Authority] is owner of this charge.

Where the charge is for a specific amount, the registration to be effected is as follows:

Charge for €………… payable as specified in Instrument No……………

[Local Authority] is owner of this charge.

2. SECTION 99 OF THE PLANNING AND DEVELOPMENT ACT 2000:

Section 96 of the Planning and Development Act 2000 provides for the transfer of land to a Planning Authority for the provision of houses. The Planning Authority may, inter alia, (a) provide or arrange for the provision of houses (b) make land or sites available to certain persons for the development of houses by them for their own occupation or (c) make land or sites available to approved bodies for the provision of houses.

Section 99 provides that the sale or lease of such houses or sites shall be subject to any such conditions as may be specified by the Planning Authority including a charge (Section 99(3) refers) which will become payable in the event of the re-sale of the house within 20 years from the date of the initial sale. In this regard, Section 99(3A) of the Planning and Development Act 2000, as inserted by Section 2 of the Housing (Miscellaneous Provisions) Act 2004 provides that, where a house or land is sold, the Planning Authority shall make an order charging the house or land with payment of the aforementioned charge.

Registration of Section 99(3A) Charging Orders:

The registration to be effected in respect of Section 99(3A) Charging Orders is as follows:

Contingent charge for such sums as may become payable under the terms of Instrument No…………..

[Planning Authority] is owner of this charge.

3. SECTION 9(3A) OF THE HOUSING (MISCELLANEOUS PROVISIONS) ACT 2002:

Section 9 of the Housing (Miscellaneous Provisions) Act 2002 provides that, where an affordable house, being a house sold for less than market value, is sold, the sale shall be subject to any such terms and conditions as specified by the Housing Authority including a charge (Section 9(3) refers) which will become payable in the event of the re-sale of the house within 20 years from the date of the initial sale by the Housing Authority. In this regard, Section 9(3A) of the Housing (Miscellaneous Provisions) Act 2002 as inserted by Section 1 of the Housing (Miscellaneous Provisions) Act 2004 provides that the Housing Authority shall make an order charging the house with payment of the aforementioned charge.

Registration of Section 9(3A) Charging Orders:

The registration to be effected in respect of Section 99(3A) Charging Orders is as follows:

Contingent charge for such sums as may become payable under the terms of Instrument No…………..

[Local Authority] is owner of this charge.

4. SECTION 26(1) OF THE HOUSING ACT 2014:

Section 25(1) of the Housing Act 2014 provides that a Housing Authority may sell a house (which generally does not include self-contained flats) to a tenant who has let a house under the Housing Acts 1966 – 2014. The sale is effected by means of a Transfer Order, in the prescribed form.

In addition, Section 26(1) requires the Housing Authority to make a Charging Order, in the prescribed form, which covers the discount by which the purchase price of the house was reduced for the purposes of calculating the purchase money payable by the purchaser (see further the Practice Direction on Transfer Orders under the Housing Acts 1966 – 2014).

The combined prescribed form of the Transfer Order and Charging Order is to be found in Schedule 1 of the Sale of Local Authority Houses) Regulations 2015 (S.I. 484 of 2015 refers).

Registration of Section 26 Charging Orders:

Section 26 Charging Order as to be registered as follows:

Charge for such sums as may become payable under the terms of Instrument No…………..

[Local Authority] is owner of this charge.

Miscellaneous:

Consent under Section 3 of the Family Home Protection Act 1976 or Section 28(1) of Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 does not arise as the Charging Order is by the Housing Authority and not by the owner of the property.

An assent to the registration of the Charging Order as a burden is not required as the Order is created under Statute (Rule 96(1)(d)(i) of the Land Registration Rules 2012 refers).

Charging Order pursuant to the Planning and Development Act 2000 and Housing (Miscellaneous Provisions) Act 2002, as aforesaid, are to be registered notwithstanding that the person named in the Order may not be the registered owner of the Folio.

Where a charge in favour of a financial institution is lodged at the same time as the Charging Order, the financial institution charge should be registered first where the consent of the Housing Authority to such course has been furnished. Such consent may be included in the body of the Charging Order or provided by way of a covering letter from the Housing Authority.

John Murphy

Deputy Registrar

10 March 2016