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34 2009

National Asset Management Agency Act 2009

Chapter 2

General Powers of NAMA in Relation to Assets

Interpretation (Chapter 2).

138 .— For the purposes of this Chapter, a reference in this Chapter to NAMA shall be construed, in relation to a bank asset that has been acquired by a NAMA group entity, as a reference to either NAMA or the NAMA group entity unless the contrary intention appears.

NAMA’s powers to dispose of bank assets.

139 .— NAMA may validly transfer, assign, convey, sell on or otherwise dispose of an acquired bank asset to any person notwithstanding—

(a) any restrictions on such a disposal at law or in equity,

(b) any contractual requirement, or any requirement under any enactment, for the consent of, for notice to, or for a document from, any person to such a disposal, or

(c) any provision of any enactment that would otherwise prohibit or restrict such a disposal.

Power to discharge prior charge.

140 .— Where an acquired bank asset is secured by a charge (including a charge that is a collateral security), but the charge is a second or subsequent charge, NAMA may redeem or discharge any one (or more) of the prior charges in accordance with its terms.

Power of entry to protect value or condition of land or buildings.

141 .— (1) Where an acquired bank asset is secured by a charge over land (including a charge that is a collateral security), and any one or more of the following paragraphs applies:

(a) the land or any building or structure on it has been abandoned;

(b) the land is or has become overgrown;

(c) the land or any building or structure on it is or has become infested with vermin;

(d) any building or structure on the land has fallen, or there is a serious risk of the building or structure falling, into disrepair;

(e) the land or any building or structure on it is at risk from trespassers or vandalism;

then NAMA may apply to a judge of the District Court for the time being assigned to the District Court district in which any part of the land concerned is situated, on notice to the owner and any occupier of the land, for an order (in this section referred to as an “ entry and maintenance order ”) authorising it to enter (by force, if the order so provides) upon the land or any building or structure on it for any one or more of the following purposes:

(i) to fence or otherwise secure the boundary of the land;

(ii) to clear the land of overgrown vegetation;

(iii) to clear or treat the land or any building or structure on it in a manner designed to remove vermin;

(iv) to repair or make secure any building or structure on the land.

(2) NAMA shall serve a copy of an application under subsection (1) on every person it knows to have an interest in the relevant land.

(3) The District Court may make an order in accordance with an application under subsection (1) and if it does so shall specify the period, being not greater than 6 months beginning on the date of the order, for which the order shall have effect.

(4) NAMA shall give each owner and, where the relevant land is occupied, each occupier of the relevant land at least 24 hours’ notice of its intention to enter on the land or any building or structure on it under the authority of an entry and maintenance order.

(5) An entry and maintenance order does not authorise forcible entry on the land, building or structure concerned unless the order expressly so provides.

(6) If NAMA enters on land or a building or structure under the authority of an entry and maintenance order, NAMA shall not be taken to be a mortgagee in possession of the land or any building or structure on it.

(7) Any cost, expense or liability that NAMA incurs pursuant to this section—

(a) is a debt due under the bank asset concerned, and

(b) is recoverable from the debtor, associated debtor, guarantor or surety concerned,

and the repayment of any such cost, expense or liability stands secured against the land.

Certain instruments by NAMA to be taken to be deeds.

142 .— (1) In relation to any land in which NAMA has an interest, whether legal or beneficial, an instrument under seal of NAMA or the common seal of the NAMA group entity concerned that is expressed to convey that interest or any part of that interest in the land concerned to another person shall be taken for all purposes to be a deed of conveyance of the land executed under seal by the owner of the interest in the land concerned.

(2) An instrument referred to in subsection (1) extinguishes the interest of any other chargee or mortgagee in the land concerned other than a charge that has priority to the interest of NAMA concerned and has not been redeemed or discharged under section 140 .

(3) Where the interest of a chargee or mortgagee in land is extinguished by the operation of this section the interest attaches to the proceeds of the sale concerned.

(4) Where the interests of more than one chargee or mortgagee are extinguished by the operation of this section the interests so extinguished attach to the proceeds of the sale concerned in the same order of priority as those interests had before the extinguishment.

Overreaching for protection of purchasers.

143 .— (1) Subject to subsection (2), a conveyance by NAMA (including a conveyance by way of an instrument referred to in section 142 ) to a purchaser of a legal estate or legal interest in land overreaches any equitable interest in the land so that the equitable interest ceases to affect that estate or interest, whether or not the purchaser has notice of the equitable interest.

(2) Subsection (1) does not apply to an equitable interest—

(a) to which the conveyance is expressly made subject,

(b) that arises by virtue of an equitable mortgage related to the land concerned,

(c) that, before the conveyance, is registered against the land in the Registry of Deeds or the Land Registry, or

(d) that—

(i) in the case of an interest in registered land, is a burden of a kind referred to in section 72(1)(j) of the Registration of Title Act 1964 , or

(ii) in the case of an interest in unregistered land, would take effect as such a burden if the land were registered land.

(3) Where an equitable interest is overreached under this section it attaches to the proceeds arising from the conveyance, and effect shall be given to it accordingly.

(4) NAMA shall discharge any obligations under subsection (3) as soon as is practicable.

(5) For the avoidance of doubt, overreaching in accordance with subsections (1) and (2) has effect in relation to land that is or includes a person’s principal private residence.

(6) In this section “ equitable mortgage ” means a mortgage created by—

(a) the deposit of documents of title relating to the legal estate or legal interest in the land concerned, or

(b) an undertaking by a solicitor to hold the documents of title relating to the legal estate or legal interest in the land concerned in trust for a credit institution and which undertaking, where applicable, has been registered as a charge under section 99 or 111 of the Companies Act 1963 .

Effect of certain assurances of land.

144 .— An assurance of charged land or a right or interest in charged land before the acquisition by, or vesting in, NAMA of the relevant charge (whether or not the land was charged at the date of the assurance) shall be taken to have created, for the benefit of the charged land, any easement or profit prendre over any land retained by the grantor of the assurance that it is reasonable to assume, in the circumstances of the case, was within the contemplation of the parties at the date of the assurance as being included in it, or would have been within that contemplation at that time if they had adverted to the matter.

Certain receivers not obliged to sell property, etc.

145 .— (1) A receiver of the rents and profits of property appointed by NAMA pursuant to its powers as a chargee of the property is not obliged to sell the property at any particular time or at all, but is accountable for all profits and other monetary benefits arising directly from possession of the property.

(2) A receiver appointed to the property of a company by NAMA in its capacity as a creditor of the company is not obliged to sell any property of the company at any particular time or at all, but is accountable for all profits and other monetary benefits arising directly from possession of the property of the company.

Powers of NAMA to enforce securities, etc.

146 .— The enforcement of a security by NAMA is not subject to the restrictions in the Conveyancing Act 1881 or the Land and Conveyancing Law Reform Act 2009 .