Social Security
Hypothecs (Jersey) Law 2014
A LAW to make provision for debts
arising under the Long-Term Care (Jersey) Law 2012 and the Income Support
(Jersey) Law 2007 to be secured by hypothecs and for related purposes.
Adopted by the
States 11th December 2013
Sanctioned by
Order of Her Majesty in Council 5th March 2014
Registered by the
Royal Court 14th
March 2014
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“1880 Loi” means the Loi (1880)
sur la propriété foncière[1];
“2007 Law” means the
Income Support (Jersey) Law 2007[2];
“2012 Law” means the
Long-Term Care (Jersey) Law 2012[3];
“Article 4(1)(b) benefit”
means a benefit under Article 4(1)(b) of the 2012 Law to meet all or
part of the cost of a payment by an individual towards the costs of long-term
care, such payment being required by virtue of an Order under Article 3(2)(c)
of the 2012 Law;
“debt” means the
amount that a debtor is liable to repay the Minister by way of final settlement
by reason of an income support debt or pursuant to a long-term care loan;
“debtor” means a
person who is liable to pay one or more amounts to the Minister as accrue from
time to time pursuant to an income support debt or a long-term care loan;
“income support debt”
means an amount that a claimant is liable to pay by reason of any of the
circumstances referred to in Article 14(1)(a), (b) or (c) of the 2007 Law;
“long-term care loan”
means an arrangement entered into by an individual pursuant to which an Article 4(1)(b)
benefit provided to the individual takes the form of a loan to the individual (however
such loan is expressed and in whatever form);
“Minister” means the
Minister for Social Security;
“partner” means the
debtor’s spouse or civil partner or any individual living in a similar relationship
with the debtor (whether or not of different sexes);
“social security hypothec”
means a legal hypothec arising under Article 2(1);
“third party” means
a person other than the debtor and his or her partner.
(2) Words
and expressions used in this Law shall, except where indicated otherwise, have
the same meaning as such words and expressions have in French in the 1880 Loi.
2 Creation
of social security hypothec
(1) A
debt may be secured by a hypothec in accordance with the provisions of this
Law.
(2) Subject
to paragraph (6), the Minister shall have a legal hypothec on all the
immovable property of a debtor and the debtor’s partner (whether owned
separately, jointly or in common) if, following an application by the Minister,
the hypothec is registered in the Public Registry.
(3) In
the case of a long-term care loan or income support debt, a hypothec is created
under paragraph (1) whether or not the immovable property is owned jointly
with a third party.
(4) Where
a hypothec has been created in circumstances where the property is owned
jointly (whether or not with a third party) and a dégrèvement
is ordered under Article 2(b) of the Loi (1904) (Amendement No. 2)
sur la Propriété Foncière[4], the title to the property
shall, as from the date of the order, be taken to have been converted into
ownership in common in equal shares (“en indivis
en parts égales”) and the hypothec shall, with the debt
secured by it, be apportioned accordingly.
(5) Where
paragraph (4) applies and the dégrèvement
is discontinued, or for any other reason, the court may make such order as it
thinks fit for restoring the position to what it would have been had the order
for the dégrèvement not been made
or as nearly thereto as the court thinks practicable.
(6) Immovable
property which is subject to any other form of hypothec in favour of the
Minister for a debt cannot be subject to a social security hypothec in respect of
the same debt.
(7) A
social security hypothec may be registered at any time.
(8) A
social security hypothec shall date from the date it is registered in the
Public Registry and shall rank in priority to other hypothecs from that date.
(9) The
Minister shall give notice of the registration of a social security hypothec to
the debtor as soon as reasonably practicable following its registration.
3 Amount
secured by a social security hypothec
(1) A
social security hypothec shall secure such amount as accrues from time to time that
a debtor is liable to pay pursuant to an income support debt or a long-term
care loan, as the case may be.
(2) In
the case of an order of dégrèvement
under Article 2(b) of the Loi (1904) (Amendement No. 2) sur la Propriété
Foncière[5] or a declaration under Article 6
of the Bankruptcy (Désastre) (Jersey) Law 1990[6], a social security hypothec
shall secure such amount that the debtor is liable to pay pursuant to the income
support debt or long-term care loan at the time of the order or declaration, as
the case may be.
4 Application
of the 1880 Loi
(1) Instead
of Article 16 of the 1880 Loi paragraphs (2) and (3) shall
apply.
(2) When
a debt secured by a social security hypothec is extinguished by any reason
whatsoever, the Minister shall cause the hypothec to be cancelled within one
month of the day on which the debt was extinguished.
(3) For
the purposes of paragraph (2), the Minister shall provide the Judicial
Greffier with evidence of extinguishment of the debt and, upon receiving such
evidence, the Judicial Greffier shall cancel the social security hypothec.
(4) Article 29
of the 1880 Loi shall apply to a social security hypothec except that the
right of recourse to a third holder of the property (le
droit de suite) shall not be barred by prescription.
(5) The
relevant provisions of the 1880 Loi are set out in translation in the
Schedule, however these translations are by way of information only and in the
event of any conflict between a translation and the 1880 Loi, the latter
shall prevail.
5 Rules
of Court
Rules of Court may be made under the Royal Court (Jersey) Law 1948[7] to give effect to this Law.
6 Stamp
Duties and Fees (Jersey) Law 1998 amended
In Part 1 of the Schedule to the Stamp Duties and Fees (Jersey)
Law 1998[8] after item 49 there
shall be added the following item and entries –
|
“50.
|
APPLICATION FOR REGISTRATION
OF SOCIAL SECURITY HYPOTHEC
|
|
|
|
|
|
For an application under Article 2(2) of
the Social Security Hypothecs (Jersey) Law 2014[9]
|
rate F
|
Application
|
Greffier”
|
7 Citation
and commencement
This Law may be cited as the Social Security Hypothecs (Jersey) Law 2014
and shall come into force 7 days after it is registered.
m.n. de la haye
Greffier of the States
SCHEDULE
(Article 4)
english translation of Relevant provisions of the 1880 loi
1 Article 2
A hypothec, for the purposes of this Law, is a real right attached
to a rente or other claim by virtue of which
one or more biens-fonds belonging to the debtor
are rendered specially subject to the payment of such rente
or claim and which confers on the holder of the hypothec the advantages as
follows.
In the case of a décret or dégrèvement of the hypothecated
property (except in the case where the property of the debtor has been declared
en désastre): the right, according to
the rank of the hypothec, of becoming tenant to
the property thus undergoing the décret
or dégrèvement or of being paid
off by any tenant who shall have become such by
virtue of a contract or hypothec subsequent in date;
In the case of an insufficiency in the debtor’s assets: the right
to follow any part of the hypothecated property into the hands of a third holder
of the property and although the third holder shall not have been directly
charged with the payment of the rente or claim
so hypothecated, to compel the third holder to pay off whatever balance remains
due thereon, or to give up the property held.
The renunciation by default or otherwise in a décret or dégrèvement
of a rente or of an hypothecated claim shall
have the effect of freeing the properties undergoing these different procedures
from the rente or claim itself as well as from
the hypothec attached thereto but shall not deprive the creditor of any right
of recourse with respect to any other hypothecated property, if there be any.
2 Article 6
A legal hypothec is that which results from operation of law.
3 Article 26
The holder of a legal, judicial or contractual hypothec, charged on a
bien-fonds in the hands of a third holder shall
not have the right, unless the third holder is bound expressly by his or her title
to the property to discharge the liability of the principal debtor, to take any
proceedings against the third holder for payment of the sum of money or the rente so hypothecated except after the assets of the principal
debtor shall have been exhausted.
4 Article 29
Legal, judicial or contractual hypothecs constituted under the present
Law shall remain in force until the debts or obligations which are the subject of
them become extinct, not only as regards every part of the hypothecated property
for the proportion of the rente or hypothecated
claim with which such part is specially charged, but also as against every debtor
of the property charged, for such portion of the rente
or claim in respect of which the debtor is personally liable; but such hypothecs,
except a contractual hypothec, whether landed or simple, may be barred by prescription
in so far as the right of following the hypothecated property into the hands of
a third holder of the property is concerned, notwithstanding that the debt or hypothecated
claim may not be extinct.
As regards the right of recourse to third holders, judicial and legal
hypothecs with the exception of the legal hypothec for dower shall be barred by
prescription by the lapse of 10 years or more from their date.
With regard to the hypothec for dower, such right of recourse is extinguished
only by the death of the widow.