Concurrent wrongdoers and debt recovery

Concurrent wrongdoers and debt recovery

A concurrent wrongdoer in Ireland is defined in s. 11 of the Civil Liability Act 1961 as “one of two or more people responsible to a plaintiff for the same damage” (“Concurrent Wrongdoer/s”).  Concurrent Wrongdoers are jointly and severally liable for the damage sustained by a plaintiff[1].

A recent Court of Appeal decision[2] has clarified that in terms of a debt secured by a mortgage over a property, a valuer who produced a negligent valuation and a borrower who was contractually obliged to repay the debt are NOT Concurrent Wrongdoers for the purposes of the Civil Liability Act 1961 (the “Act”).

The significance of the foregoing lies in the way in which a Court is required to ascertain the extent of the liability of one Concurrent Wrongdoer when a plaintiff has reached a settlement agreement with another pursuant to s. 17 (2) of the Act.

The decision will be of particular interest to lenders and professional valuers.

The Law

S. 17 (2) of the Act provides that where a plaintiff (“P”) has reached an accord or agreement with one Concurrent Wrongdoer (CW1) to release him/ her from liability, unless the agreement/ accord expressly or by implication releases the other Concurrent Wrongdoer/s (CW2) from liability, the liability of the other Concurrent Wrongdoer/s (CW2) will be released by the greater of :-

  • The amount of the settlement between P and CW1; or
  • Any amount stipulated in the settlement agreement between P and CW1; or
  • The extent by which it can be said that CW1 was liable to contribute to CW2 if CW2 had paid the entire claim.

S. 35 (1) (h) and s. 17 (2) of the Act also require, (in the case of an agreement reached between P and CW1 WITHOUT the intention to release CW2) a plaintiff to “identify” with CW1 in any proceedings it issues against CW2. Identification is a legal term, and in this case is employed here so that P does not recover on the double and enjoy a windfall from CW2. Identification provides that in the foregoing instance P be deemed to be responsible for any acts of CW1 in those proceedings by way of contributory negligence.

Executive Summary

In the case in question, the borrowers (ie CW2) alleged[3] that the valuer (ie CW2 due to allegedly negligent provision of a property valuation), as Concurrent Wrongdoer with them, would have been required to contribute to them some or all of the loan outstanding and that consequently the borrowers’ liability to the bank should be reduced or set at nought pursuant to s. 17 (2) of the Act.

The borrowers’ argument was ultimately rejected by the Court of Appeal on the basis that a borrower and a valuer that provided a negligent valuation of property that induced a bank to lend to the borrower, were not Concurrent Wrongdoers. The Court held that any windfall to the bank by reason of its claims against both the valuer (for damage caused by an alleged negligently drafted report) and the borrowers (for the amount of the loan unpaid), was to the detriment of the valuer only and not the borrowers.  Therefore, the Court held that the borrowers could not rely on any settlement reached by the bank with the valuer to relieve the borrowers of having to repay the full amount of the unpaid loan.

The Case and Background/ Facts

The appellants in this case, Ulster Bank Ireland Limited & Others, Plaintiffs/ Respondents -v- Brian McDonagh & Others, Defendants/ Appellants, IEHC 2022 87, were three brothers (the “Borrowers”) who borrowed €21.5 million from Ulster Bank Ireland Limited (“the Bank”) to part fund the acquisition of a site at Kilpedder, Co. Wicklow in 2008.  The Borrowers secured planning permission for a data centre, but the development did not go ahead and the Borrowers were not able to repay the loan.  The Bank and the Borrowers entered into a Compromise Agreement and the Borrowers had to disclose all their respective assets in a Statement of Affairs. The Borrowers were alleged to have breached the Compromise Agreement and the Bank looked for summary judgment for €21.5m against the Borrowers. The Bank issued professional negligence proceedings against its valuer, CBRE for allegedly failing to properly value the Kilpedder lands. This claim was settled for €5 million which, (at the election of the Bank) was applied against the Borrowers’ loan in reduction of the debt. As set out in the decision of the Court of Appeal, there was no apparent legal basis for the Bank to reduce the Borrowers’ liability by the amount paid by CBRE.

High Court decision

Two broad issues were contested before the High Court. The first centred on whether or not the Borrowers/ defendants had breached the Compromise Agreement and secondly, whether CBRE was a Concurrent Wrongdoer with the Borrowers/defendants and thus whether or not the Bank was precluded from pursuing the Borrowers/defendants for the debt under section 17(2) of the Act in full or in part.

Mr. Justice Twomey delivered two judgments on behalf of the High Court. The first judgment[4]  was delivered on 6 April 2020 and determined that the Borrowers/defendants were jointly and severally liable to the Bank for the full amount of the outstanding debt. It was determined that the Borrowers had breached the Compromise Agreement and the Bank was entitled to pursue its claim for monies against the Borrowers/defendants.

With respect to the Act, the Court determined in its second judgment[5] that if some defendants in an action are alleged to be in breach of a contract for failing to pay a debt, and there were others responsible for that same debt on the basis of their wrongful conduct, then they were Concurrent Wrongdoers and s. 17 (2) of the Act applies.

However, the High Court concluded in its second judgment[6] that as no evidence was available to the Court to establish that the valuer was negligent in relation to the issue of its valuation report and that the report was the cause of the non-repayment of the loan by the Borrowers the Borrowers were found to be liable for the full amount of the debt outstanding in the amount of c. €22m. The Borrowers/ defendants appealed the case to the Court of Appeal.

The decision of the Court of Appeal relating to the Act

The Court of Appeal comprising the Honourable Mr Justice Brian Murray, Mr Justice Maurice Collins and Ms Justice Teresa Pilkington, delivered its judgment on the 6th of April 2022 and held that the Act is concerned with apportioning responsibility between wrongdoers facing legal proceedings for the recovery of “damages”[7]. The Court concluded that a claim for the recovery of a debt is not an action for the recovery of damages but for the enforcement of a primary contractual right. Even if a claim for a debt could be construed as a claim for “damages” as defined by the Act, the Court of Appeal held that a claim for damages for professional negligence and a claim for repayment of a debt were not actions for the “same damage”, as required by the Act[8]. The Court went on to say that a debtor would be liable for the entire debt, whereas the maximum amount for which the valuer could be held liable was a figure representing the amount of the loan which the lender could not recover from the debtor. Therefore, it was held that the liability of the debtor and valuer were not concurrent as required by s. 17 (2) of the Act.

Ultimately, the Court dismissed the Borrowers’ case on the matter of the application of the Act to proceedings for the recovery of debt and found the Borrowers liable for the full amount of the debt outstanding.  The Court of Appeal found absolutely no basis on which it could be suggested that the valuer, CBRE, could have any liability to contribute to the debt of the defendants, as required by s. 17 (2) of the Act. The Bank was not obliged to have deducted the €5m received from CBRE on foot of the settlement from the debtors’/Borrowers’ liability but as it had elected to do so, the Borrowers’ liability was reduced in that amount.  Therefore, the Borrowers were found to be liable for the full amount of the loan (€27m) less the settlement sum received from CBRE and applied to their loan account (€5m) with interest thereon. The effect of the second judgment of the High Court was upheld and the judgment of c. €22.9m against the Borrowers on a joint and several basis remained.

Further, the Court held that proofs critical to establish negligence – including a professional report confirming that the valuer failed in meeting its standard of care by adhering to general accepted and approved practice – were not present and the Borrowers’ argument was bound to fail for that reason, even if the Court held that the valuer/CBRE and the Borrowers were Concurrent Wrongdoers (which, as above, was not the case).

The Court of Appeal made clear[9] that the case is not concerned with the manner in which liability as between joint debtors or debtors and guarantors should be determined. In its decision, the Court emphasised that its findings do not in any sense have the consequence that in either of these situations a creditor is entitled to effect double recovery nor does it mean that a compromise with one debtor in these circumstances has no implications for another party liable on the debt. Instead, the relevant common law rules and applicable equitable principles (in particular of recoupment and contribution) continue to operate, the court held.  In the case of joint debtors this means that the release of one co-debtor in an agreement which did not expressly or impliedly reserve the creditors’ rights against the others will wholly extinguish the creditor’s rights. In the case of the relationship between guarantors and debtors issues as to whether and if so at what point of time in the context of a particular guarantee the guarantor has a right to indemnity or contribution from the principal debtor, those rights, the guarantor’s rights to subrogation, and indeed its rights against co-sureties fall to be determined in accordance with those equitable principles developed ‘to ensure that the person primarily liable should bear the whole burden in relief of others’ (Re Eylewood Ltd. [2011] 1 ILRM 5 at para. 35 per Finlay Geoghegan J.)[10].


The decision, insofar as it relates to the application of the Act to cases where it appears more than one person is or may be responsible for loss sustained by a plaintiff, is an important one as it clarifies the fundamental steps to take when examining the relationship between two parties to ascertain if they are Concurrent Wrongdoers.  The decision will be welcomed by banks and lending institutions as it makes it clear that the full amount of a loan remains outstanding even in situations where the lender was induced to lend on foot of an allegedly negligently prepared valuation report.

Further reading – see “The Blame Game”, by John Kennedy SC in the Law Society Gazette, 01 July 2022 and for wider background Appeals court upholds €22m judgment against brothers over data centre lands”  Anthea McTeirnan of the Irish Times dated 06 April 2022.

[1] S. 12 of the Act

[2] Ulster Bank Ireland Limited, Paul McCann and Patrick Dillon, Plaintiffs/ Respondents -v- Brian McDonagh, Kenneth McDonaghj and Maurice McDonagh, Defendants/ Appellants. 2022 IECA 87

[3] amongst other arguments that will not be addressed in this article

[4] Ulster Bank Ireland Limited & Others, Plaintiffs -v- Brian McDonagh & Others, Defendants, 2020 IEHC 185

[5] Ulster Bank Ireland Limited & Others, Plaintiffs -v- Brian McDonagh & Others, Defendants 2020 IEHC 311 delivered on 20 June 2020

[6]  Ulster Bank Ireland Limited & Others, Plaintiffs -v- Brian McDonagh & Others, Defendants 2020 IEHC 311 delivered on 20 June 2020

[7] As defined in s. 2 of the Act

[8] S. 17 (2) of the Act

[9] Para 104,pg 63 & 64 of the Court of Appeal judgment

[10] These principles, the Court found were summarised before in Breslin and Corcoran, Banking Law (4th Ed 2019) at paras. 14-19 – 14-27.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.

For further information and advice in relation to “Concurrent Wrongdoers and Debt Recovery ”, please contact Deirdre Farrell, Partner, Amorys Solicitors, telephone 01 213 5940 or your usual contact at Amorys.

Builders, Developers and Landowners: Residential Zoned Land Tax – What You Need to Know

Residential Zoned Land Tax – What You Need to Know

Residential Zoned Land Tax (“RZLT”) was introduced by way of the Finance Act 2021 and will be payable from 2024. The RZLT is an annual tax calculated at 3% of the market value of land which is suitable for residential development and is serviced. The aim of the RZLT is to mobilise lands on which housing can be developed in order to increase the much-needed housing supply by incentivising property developers to develop the land.

The first payments under RZLT will be due on or before 23 May 2024, and annually on 23 May thereafter. Payment will be made to the Revenue Commissioners who are responsible for the management of the tax. Given the time period between introduction of the tax and the first payment due date, any site upon which development has commenced before 1 February 2024 will be exempt from payment of RZLT.

Relevant Lands

In order to fall within the scope for the RZLT, the lands must, on 1 January 2022 (and 1 February after 2024), be;

  1. Suitable for residential development;
  2. Serviced, including public infrastructure for which there is sufficient capacity for housing to be developed;
  3. Included on the Local Authority’s map (see below), which will be updated annually; and
  4. Not included in the exclusions (listed below).


There are certain types of land which are excluded from the scope of RZLT as follows;

  1. Existing residential property including gardens/yards under 0.4047 hectares (1 acre). Where lands over 0.4047 hectares (1 acre) otherwise fall in-scope, owners must register for RZLT but are NOT liable to pay the tax;
  2. Land which is zoned for residential use but is permitted for use as a business to serve people in the locality;
  3. Land which is zoned for a mix of uses including residential where the land is integral to the operation of a business on or beside it;
  4. Derelict sites to which the Derelict Sites Levy applies;
  5. Land which is unsuitable for development for reason of contamination, presence of archaeological artifacts etc.

Local Authority Maps

The Local Authorities will issue maps on an annual basis which will indicate the lands within that Local Authority’s area which will be within scope for RZLT. This map will be published on the website of each of Local Authority every year. Draft maps will first be published in November 2022, supplemental maps in May 2023 and a final map in December 2023. Following the initial mapping process, maps will be updated annually and be available by 31 January each year.

Builders, developers and landowners will have a right of appeal as to their inclusion in the in-scope lands on the maps published.

Our Clients

We have identified particular scenarios in which builders, property developers and landowners including our own clients may find themselves following the introduction of the RZLT;

  1. Builders, developers and landowners intending to retain lands subject to RZLT

If included as in scope for RZLT, a valuation of the lands must be carried out. RZLT is a self-assessed tax and therefore the owner/developer is responsible for valuing the lands accurately. A professional valuer may be engaged for such valuation but it is not a requirement. The property value must be ascertained for 1 February 2024 and can be used for the following three years. The valuation must then be revised every three years. 3% of the value will be the amount of tax payable. Documentation/records must be kept should Revenue seek to enquire further about the valuation provided.

Returns and Payment of Liability
Where lands fall in-scope of RZLT, the owner/developer of the relevant site is obliged to file returns and make payment. Returns and payment of RZLT will be due on 23 May annually for those landowners/developers who are in-scope on 1 February of that same year.

Penalties will apply to late payments and will be charged at 8% per annum. Surcharges for late filings may also apply at a rate of up to 30% of the liability for the year. In addition, undervaluing the lands can result in surcharges of up to 30% of the value of the lands. If sums remain unpaid, a charge will be placed over the lands by the Revenue Commissioners thus restricting a sale of the lands.

Where there is more than one owner of the site (e.g., the property is held jointly or in a property development partnership), only one return will be required per site which can be completed by the designated person. If there is no designated person, Revenue will appoint one.

  1. Builders, developers and landowners of lands subject to RZLT intending to sell or transfer ownership

Landowners or developers who wish to sell their land have certain obligations in respect of RZLT. These obligations also apply where ownership is transferring by way of gift, inheritance or long lease (35 years or more).

The landowner/developer, prior to the sale of the lands, must;

  • File a RZLT return;
  • Provide certain details of the site, the current landowner and purchaser;
  • Pay all outstanding tax and interest due. The seller must also pay or seek to make and agree with Revenue the amount of any penalties outstanding;
  • Submit all returns prior to completion of the sale;

Once these matters have been addressed, Revenue will confirm the tax position relative to the site at the date of the sale and will state whether there is a nil balance payable or if unpaid taxes are outstanding.

Outstanding liabilities will become a charge on the property if not properly dealt with, resulting in the inability to complete the sale.

  1. Builders, developers and landowners developing their property (Residential and Mixed-Use)

Where residential development commences on a site on which RZLT is payable, the payment of the tax may be deferred. In order to defer RZLT for the duration of the development; i) planning permission must be granted, ii) the site must be used wholly or partially for residential development and iii) a Commencement Notice must be lodged with the local authority. RZLT returns must continue to be filed throughout the period. A deferral will remain in place until a certificate of compliance on completion in respect of the development has been issued.

Where only a portion of a site which is liable for RZLT meets the criteria for deferral, RZLT remains payable on the other portion of the site. The site essentially becomes two relevant sites: one which meets the deferral requirements and one for which RZLT remains chargeable.

If the relevant site is zoned for a mix of uses, RZLT is only liable on the portion of the lands that are suitable for residential development. This will be deemed the ”qualifying part of the site” and must be valued for the purpose of RZLT.

  1. Out-of-Scope Landowners/Developers

Lands that are deemed out of scope as per the criteria set out above are subject to RZLT. However, for existing residential properties which are zoned residential on the local authority map and which comprise an area in excess of 0.4047 hectares (1 acre) in size, the landowner/developer must file a return in respect of RZLT and provide certain information in respect of the property.

If a property comes within scope, tax will be payable three years after it comes within scope.

If you would like any further information and legal in relation to residential or commercial property development then please contact Deirdre Farrell at, telephone 01 213 5940 or your usual contact at Amorys.

Urban Development & Building Heights in Strategic Development Zones

Since the issue of the Urban Development and Building Heights Guidelines by the Minister for Housing, Planning and Local Government in December 2018 (the “Guidelines”), land owners and developers are understandably anxious to know how these guidelines will apply to proposed developments of land, the subject of planning applications. The below case note sets out when a planning authority is required to apply the Guidelines and offers a solution for developers of sites for residential use in SDZs where the Guidelines have not yet been implemented.

The High Court case of Spencer Place Development Limited –v- Dublin City Council [2019   IEHC 384] concerned the interpretation of the statutory Guidelines. Judgment was handed down by Justice Garrett Simons in May 2019 and dealt with the central issue in the case regarding the interaction between the Guidelines and existing planning schemes adopted in strategic development zones (SDZs).

The main contention in the case concerned Dublin City Council’s interpretation of a particular provision of the Guidelines known as specific planning policy requirement 3 (A) or “SPPR3 (A)” in the context of the consideration of planning applications already submitted to it. The Guidelines were issued by the Minister pursuant to s. 28 of the Planning & Development Act 2000 (“Section 28”). A planning authority is required, under Section 28 to have regard to ministerial guidelines and to comply with specific planning policy requirements. The question was whether SPPR 3(A) applied to plan schemes where it stated it applied to ‘development plans’ only. A Briefing Note on the Guidelines prepared by Dublin City Planning Officer stated that SPPR 3(A) did not apply to the development proposed for a planning scheme area.


The plaintiff developer had two pending planning applications before Dublin City Council where the height of the development would exceed the maximum building height under the applicable planning scheme. The developer argued that the Guidelines permitted the planning authority to legally grant the planning permission despite the height restrictions of the North Lotts planning scheme. The court was asked to make a declaration firstly that the Briefing Note of 21 January 2019 was ultra vires or outside the powers of Dublin City Council Planning Authority and secondly, that the Council was obliged to apply SPPR 3 (A) of the Guidelines from the date of their publication in December 2018 and prior to undertaking any review of the North Lotts and Grand Canal Planning Scheme.

SPPR3 provides as follows:-

“It is a specific planning policy requirement that where;


  1. an applicant for planning permission sets out how a development proposal complies with the criteria above; and
  2. the assessment of the planning authority concurs, taking account of the wider strategic and national policy parameters set out in the National Planning Framework and these guidelines; then the planning authority may approve such development, even where specific objectives of the relevant development plan or local area plan may indicate otherwise.


In the case of an adopted planning scheme, the Development Agency in conjunction with the relevant planning authority (where different) shall,  upon the coming into force of these guidelines, undertake a review of the planning scheme, utilising the relevant mechanisms as set out in the Planning and Development Act 2000 (as amended) to ensure that the criteria above are fully reflected in the planning scheme. In particular, the Government policy that building heights be generally increased in appropriate urban locations shall be articulated in any amendment(s) to the planning scheme


In respect of planning schemes approved after the coming into force of these guidelines, these are not required to be reviewed.”

The defendant Dublin City Council argued that the judicial review proceedings brought by the developer were premature as while both planning application decisions were pending there was, therefore, no ‘decision’ or ‘act’ that could be the subject of judicial review and that the ordinary meaning must be given to the word ‘development plan’ in SPPR3(A) above. Arising from the application of the ‘ordinary meaning’ test for interpretation, and after having considered the full text of SPPR3, DCC argued that all the guidelines required it to do, was undertake a review of the planning scheme in accordance with SPPR3 (B): SPPR3 did not necessarily require a Planning Authority to amend the planning scheme to incorporate increased building heights, DCC argued.  The developer contended that the Briefing Note issued by the City Council Planning Officer regarding his interpretation of the building height guidelines was ‘justiciable’.


Justice Simons refused to grant Spencer Place Development Limited its three declarations and held in favour of DCC.


This judgment is of interest to developers as it highlights the following:-

  1. Where an amendment to a planning scheme is pending, a planning application will be decided upon by reference to the existing planning scheme.
  2. The building height restrictions of an existing planning scheme within an SDZ cannot be circumvented by reference to the Guidelines.
  3. It clarifies that a planning authority is required to apply the Guidelines when assessing planning applications outside an SDZ. This means that one possible solution for a developer, when faced with a refusal of planning permission in an SDZ on grounds of building heights, might be to apply for permission for the same development under the fast-track Strategic Housing Development process. This is because the relevant legislation[1] does not differentiate between property located in a development plan, a local area plan or a planning scheme. However, the proposed development would need to consist of at least 100 residential units or 200 student units or a combination of both.
  4. Developers are also reminded that there is no right to appeal a decision to refuse planning permission in an SDZ on grounds that an extant planning scheme did not incorporate subsequently issued SPPRs.
  5. Whilst the subject of costs formed a separate judgment of Simons J. this case also demonstrates the requirement for a plaintiff developer to await a decision from the planning authority prior to issuing judicial review proceedings. It was held by Simons J. in a further judgment delivered in the costs application that the developer was unable to make the argument that both parties should bear their own costs pursuant to s. 50B of the Planning & Development Act 2000 by reason of the finding (amongst others) that the Briefing Note did not amount to a ‘decision’ capable of forming judicial review under that section. Simons J made an order directing the plaintiff to discharge DCC’s costs under the ordinary rule set out in Order 99 of the Rules of the Superior Courts that costs follow the event/ the winner at the absolute discretion of the Court.

The Irish Times has reported that the developer has appealed the substantive decision of Judge Simons to the Court of Appeal.  The appeal could also affect the costs order. In addition, DCC has proposed an amendment to the planning scheme which would increase building height restrictions in the North Lotts and Grand Canal SDZ. We will update this note as soon as the decision in the appeal has been published.

[1] See the definition of ‘Strategic Housing Development’ in s. 3 of the Planning and Development (Housing) and Residential Tenancies Act 2014

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Urban Development & Building Heights in Strategic Development Zones”, please contact Deirdre Farrell, partner, Amorys Solicitors or Daragh Burke, telephone 01 213 5940 or your usual contact at Amorys.

Reducing Stamp Duty on a Business Asset Sale and Purchase in Ireland

Reducing Stamp Duty on a Business Asset Sale and Purchase in Ireland

It is generally understood that a buyer’s stamp duty liability will be 7.5%1 of the market value consideration paid for all assets passing under a Business Asset Sale and Purchase Agreement executed in Ireland2 but this is not necessarily the case. Below are a few mechanisms by which stamp duty on a business asset sale may be reduced.

  1. Any document executed in connection with the sale of intellectual property is exempt from stamp duty3. This is an important provision as it includes trademarks, copyright, patent and know-how and goodwill attaching to same4.
  2. It is possible, in some cases, to avoid stamp duty on the sale of plant and machinery, goods, wares and merchandise5. In order to do so, a buyer will need to agree in the Business Asset Sale and Purchase Agreement for ownership to these items to pass ‘by delivery’ and must not require a formal instrument evidencing the transfer of ownership on closing6.
  3. Similarly, it may be possible to avoid stamp duty on the acquisition of a debt (deemed consideration for stamp duty purposes), if the buyer agreed the debt would transfer ‘on delivery’. This could be effected by the production of a bearer instrument7 to the buyer on completion. Alternatively, the debt may be transferred by a novation agreement which, unlike an assignment8, would not classify the debt as a ‘conveyance on sale’ for stamp duty purposes9.
  4. The transfer of loan capital of a company or body corporate is exempt from stamp duty10 provided certain conditions are met. Broadly, the loan capital must not carry a right of conversion into shares of an Irish company, must not carry rights similar to rights attaching to shares (e.g. voting rights, right to profits etc), must not be issued for a price which is less than 90% of its nominal value and must not carry a right to interest which is related to movements in an index.
  5. Any instrument executed in connection with the sale of foreign property is exempt from stamp duty11. This can be extremely useful in circumstances where the seller is non-resident as movable property (including potentially the seller’s debts) could be deemed to be situated in the Seller’s country of residence, rather than in Ireland.
  6. Instruments executed in connection with the sale of residential property attract stamp duty of 1% of the market value of the consideration paid12. Residential property includes mobile and other holiday homes. This is a useful and valuable provision for buyers looking to acquire a residential property portfolio.
  7. Many instruments relating to the financial services industry such as debt-factoring agreements13, financial futures and contracts for difference are exempt from stamp duty14.
1 Stamp duty on non-residential property is typically charged as a ‘conveyance on sale’ at this rate – see Schedule 1, Stamp Duties Consolidation Act, 1999 (“SDCA ‘99”) as amended by section 57 of the Finance Act 2019.
2 The charge to stamp duty liability arises under s. 2 SDCA ’99 in relation to instruments executed “in Ireland”
4 Goodwill will be exempt only to the extent that it is directly attributable to the intellectual property in question. Where there is business goodwill and goodwill that is attributable to the intellectual property, the consideration must be apportioned between the two on a just and reasonable basis.
5 See section 31 Stamp Duties Consolidation Act, 1999 which provides that contracts for the sale of these movables are exempt from stamp duty
6 Circumstances of the transaction will dictate if this is advisable. Careful drafting of the relevant clause is required so as not to render the contract stamp-able as a ‘conveyance on sale’ under schedule 1, SDCA ’99.
7bearer instrument, or bearer bond, is a type of fixed-income security in which no ownership information is recorded and the security is issued in physical form to the purchaser. The holder is presumed to be the owner, and whoever is in possession of the physical bond is entitled to the coupon payments.
8 An assignment is considered a “conveyance or transfer on sale of any property other than stocks or marketable securities or a policy of insurance of a policy of life insurance” (commonly known as “Conveyance on Sale”) under schedule 1 SDCA ’99.
9 A novation agreement would involve the execution of a tripartite agreement by the original lender, the borrower and the party acquiring the debt. The suitability of this option will depend on the facts of the transaction, for example, it would not normally be an appropriate means of transferring a large portfolio of debts as it would require execution by each individual debtor
11 S.2 SDCA ’99 (charge to stamp duty) and see section 31 of the SDCA which provides for the exemption of contracts for sale of foreign property (as opposed to ‘conveyances’)
13 The exemption does not apply if the instruments relate to shares in Irish companies or land or buildings in Ireland s. 90 SDCA ‘99

An ‘asset sale’ has many advantages over a ‘share sale’ for both the buyer and the seller. For example, a seller may be in a position to crystallise a tax loss to offset a gain and a buyer has the potential to avoid uncrystallised gains in its accounts after completion.  Consequently, a purchaser should not summarily dismiss structuring a transaction as an ‘asset sale’ as the tax cost may be less than what it may seem at first instance.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Reducing Stamp Duty on a Business Asset Sale and Purchase in Ireland”, please contact Deirdre Farrell, partner, Amorys Solicitors, telephone 01 213 5940 or your usual contact at Amorys.


  1. There are no restrictions on foreign nationals buying property in Ireland. This means that both EU/ EEA and non-EU/ non-EEA nationals can purchase property here without limitation.
  2. Owning residential property in Ireland does not entitle the owner to a right of residence here. Residence and/ or the right to remain in Ireland are treated separately to property ownership and depend on each individual’s personal circumstances. For further information please see Irish National and Immigration Service.
  3. Similarly, owning commercial property here does not generally  entitle a non-EEA national to operate a business out of that property – permission from the Minister for Justice Equality and Law Reform is required. Conversely EU/ EEA nationals may operate a business and reside in Ireland without restriction by virtue of the general principles of EU law.   A company, once it has one director that is resident in Ireland, may operate a business out of that property.  The right of residence of each director and employee will be treated according to each individual’s circumstance however.
  4. It is important to note that a tenant of a non-resident Landlord in Ireland is obliged under current tax legislation (section 1041 Taxes Consolidation Act 1997) to withhold 20% of the annual rent and pay same to the Revenue unless that non-resident landlord has appointed a ‘Collection Agent’ to be assessed for the tax on the rent from that particular rental property. A collection agent is usually an estate agent, accountant or solicitor but could be any person who is resident in Ireland.  Once a collection agent has been appointed a tenant will be entitled to pay the full amount of the rent to the Irish resident agent.  Appointing a collection agent is relatively straight forward and can be effected by completing an Income Tax Registration Form for Collection Agents and submitting it to Revenue.  First the Landlord will need to register his/her tax or PPS number for income tax.  The Collection Agent will then need to apply to the Department of Social Protection for a separate Personal Public Service or tax Number which will be linked to the landlord’s tax number in Ireland.  Once a Collection Agent has been acknowledged by Revenue as such, the tenant can pay the rent to the Collection Agent without deduction of tax.
  5. Stamp duty at 6% of the market value of commercial property transactions must be paid by a purchaser. Stamp duty on a residential property transaction is payable at 1% of the market value up to €1m and at 2% on the value in excess of this amount. In both cases stamp duty must be paid by a purchaser within 30 days of completion of the transaction. In order to file a stamp duty return a PPS or tax Number will be required which will take some time (currently up to 8 weeks) to issue from the Department of Social Protection if a purchaser does not have one already which could potentially delay completion of the transaction.  Individuals or companies who have never been resident or carried on business in Ireland are unlikely to have a PPS or a Tax Number and may therefore be subject to this delay.
  6. The conveyancing process in Ireland can generally be divided into three stages: negotiation stage (where solicitors are generally not involved); pre-contract stage (solicitors are involved) ; and completion (Solicitors are involved). The negotiation stage usually involves private individuals and/or their estate agents or representatives negotiating the sales price and “heads of terms”. In Ireland, the vast majority of the legal work is carried out by solicitors at “pre-contract stage” so that once a contract has been signed by both parties, it is usually possible to complete soon after that.  The length of time it takes to complete a purchase will however depend on each transaction and in particular whether the purchaser is buying with cash only or with both cash and the benefit of a mortgage.  All going well, it should be possible to complete the conveyancing transaction within 4 weeks of exchange of contracts.
  7. An annual charge (called “local property tax”) of up to 0.18% of the market value of a residential property in Ireland up to a value of €1m, and up to 0.23% on the balance of the MV over and above €1m must be paid to the Revenue on or before 10th January each year which is something that a prospective investor will need to bear in mind prior to purchasing on a ‘buy to let’ basis. The percentage rate may fluctuate.  Further details of the local property tax charge are available here.
  8. Rates are payable on commercial property to the local authority for the area in which the property is situated. The amount payable will depend on the size of the property and other factors.
  9. Service charges may be payable to a management company where the property, residential or commercial, is located within a serviced estate.
  10. Ireland has signed comprehensive double taxation agreements with 73 countries which generally speaking result in a non-resident landlord paying no more tax than they would in their own country of residence.

A non-resident individual or business looking to purchase property in Ireland can benefit from experienced property solicitors in a myriad of ways: from identifying the need to apply for a PPS or Tax Number at an early stage to drafting a Lease after the transaction has completed and advising him/her of the potential tax liabilities and obligations in respect of any rental income.  Experienced solicitors assist with ensuring a transaction proceeds quickly and seamlessly.

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Amorys solicitors is a boutique private client and commercial law firm experienced in all aspects of a property transaction. For further information and advice in relation to “Are You A Non Resident Thinking Of Buying Property In Ireland?”, please contact Deirdre Farrell, partner, Amorys Solicitors, telephone 01 213 5940 or your usual contact at Amorys

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Specific advice should be sought in each situation.

Sharon Scally, Chairman of Sandyford Business Improvement District comments on Proposed new Tech Giant Tenant in Sandyford

Google is set to expand its Irish operations further with a planned move to offices in Sandyford Business District (SBD) in south Co Dublin. Google will be neighbours with other multi-national tech companies such as Microsoft, Vodafone, Salesforce and indigenous rising star Cubic Telecom.

SBD has 1,000 companies and a highly-skilled and talented workforce of 25,000 and is a leading location for Pharma and FinTech HQ’s including Bank of America Merrill Lynch, DCC, RBS and ICON. AIB recently announced its acquisition of new SMART offices in Central Park which will be a Centre of Excellence for Digital Innovation for 1,600 of its personnel.

Sharon Scally, Chairperson of SBD, commented ‘The Sandyford Business District is recognised as Ireland’s premier business district and Google’s decision to open it’s newest offices is testimony to the availability of highly qualified talent, award-winning infrastructure and extensive lifestyle offerings in the district. We look forward to welcoming Google and integrating them with the established networking services of the SBD’.

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Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Sharon Scally, Chairman of Sandyford Business Improvement District comments on Proposed new Tech Giant Tenant in Sandyford”, please contact Deirdre Farrell, partner, Amorys Solicitors, telephone 01 213 5940 or your usual contact at Amorys.

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