Registered Burdens

General

There are two types of burdens which may affect registered land.  One category of burden affects registered title only if registered. The other category of burden, set out in section 72 of the Registration of Title Act, affects registered land without registration.  The categories of burdens have been extended and amended from time to time.

Title to freehold or leasehold estates in land only are registered.  Other types of property rights subsist as burdens registered on (or “against”) the registered freehold or leasehold title. There is no independent title to these proprietary rights.

There is a category of property rights which exists separate from land and may affect registered land. It is the subject of a separate register of “incorporeal hereditaments held in gross”. They are not commonly found.

The Land Registry rules specify the forms for the creation of burdens.  Generally, the consent of the registered owner is necessary. The registered owner assents to the registration of the burden on the registered title, in most cases, by way of the document which created the relevant burden.

The types of burden that may affect registered title reflect the types of interest and rights which may subsist under general principles of property law.  Issues of priority applicable under the general law, apply in relation to a burden.  Generally, the order of registration determines the relative priority of burdens.  This is critical in many cases, for example, in the case of successive charges.

Some burdens may affect the estate of a limited owner only while not affecting the entire estate.  Similarly, they may affect the right of a co-owner or a person with a future interest only. A note will appear on the register, specifying the limitation.

Charges

A charge may subsist only as a burden on a registered title. Mortgages/charges must be registered as burdens in order to charge and affect registered title land and be effective.  Where there is a floating charge, the crystallization of the floating charge on a specific property must be itself registered.

Any encumbrance on the land existing at the time of the first registration of the land must be registered. An unregistered charge is defeasible by a later disposition of the registered title for value, unless and until it has been registered.

Easements

Easements and profits a prendre must be registered as burdens, where they are created by a deed of grant or by reservation under a deed, for the benefit of retained land after the first registration of the land.

An easement or profit à prendre established by prescription/ long use may be registered where on application to the Land Registry, it is satisfied, that there is an entitlement to such an easement or profit.  Registration was to be required to establish a legal easement after the 2009 land law reforms, due to become fully effective in 2021. The legislation was found to be overly burdensome and was repealed just before it was due to become effective in December 2021.

Covenants

Covenants relating to the use and enjoyment of land are registrable and must be registered in order to affect registered title land.  There is a provision for the modification and registration of registered covenants.

The provision had been in restrictive terms under the 1964 legislation. The provisions have been modified and broadened under the 2009 land law reforms.

Leases

A lease for a term of more than 21 years must be registered as a burden, in order to affect registered title land. A lease for life (or enduring with reference to a life)  is registerable.

Since 1967 the title of leases of more than 21 years must themselves be registered in a separate leasehold folio. The Land Registry opens a separate leasehold folio in respect of the lessee’s interest under the lease. Pre-1967 leases may be registered as burdens on the lessor’s registered title, while the leasehold interest itself is unregistered.

A lease of land for a term of less than 21 years, where possession goes with the lease, does not require registration.  The lessee must be in occupation.

Some Rights Requiring Registration

Rights of residence are very common in Ireland. They vary in their legal nature. Most variants may be registered as a burden on registered title land.  They may be accompanied by a right of maintenance and support. They may provide an exclusive or non-exclusive right to reside in a particular property.

A right of residence in or on registered land, whether a general right of residence on the land or an exclusive right of residence in or on part of the land, is deemed to be personal to the person beneficially entitled to it. The legislation deems it to be a right in the nature of a lien for money’s worth in or over the land. It does create an equitable estate in the land.

A lis pendens may be registered in respect of pending litigation, which may affect the title to property. The title is bound by the result of the pending litigation. The pending action is registered in the register of pending judgments.  In order to affect registered title land, it must be registered on the folio. An order commencing the insolvency process must be registered.

A lis pendens in itself is not a transfer for valuable consideration. Therefore, it may be vacated or cancelled if it is registered after the sale of the property but prior to registration of the sale deed.

A power of revocation is registrable as a burden.

Other Registerable Burdens

The following must also be registered as burdens

• most rentcharge and or fee farm or other perpetual rents issuing out of the land;
• any power to charge land with payment of money,
• any trust for securing money created or arising after the first registration
• any lien on the land for unpaid purchase money;
• any judgment or order of a court, whether existing before or after the first registration of the land;
• any judgment mortgage, recognizance, State bond, inquisition or lis pendens, whether existing before or after the first registration of the land;
• any covenant or condition relating to the use or enjoyment of the land or of any specified portion thereof;
• a freehold covenant attaching to dominant land and servient land, which has been entered after the 2009 land law reforms;
• any estate in dower (see sections on succession);
• replanting and other tree felling licence obligations;
• rights of a local authority to lay pipe-lines for whatsoever purpose and any right ancillary thereto;
• a power to appoint an estate or interest in the property exercisable within a period not exceeding a life or lives in being and twenty-one years thereafter;
• power of distress or entry;
• a right in the nature of a lien for money’s worth in or over the property for a limited period not exceeding life, such as a right of support or a right of residence (whether an exclusive right of residence or not);
• burden created by statute or under a statutory power other than those which affect registered land though not registered,
• certain agreements under wildlife legislation; and
• any such other matter as may be prescribed by Ministerial order from time to time.

Release

There are statutory forms for the discharge of a burden. Where cancellation is with the consent of the owner of the relevant charge, few practical issues arise.

One form is for the more straightforward case, for example, the release of a charge on redemption, where the chargeholder executes the discharge.  Bank and financial institution mortgages may use as a simplified form of release, by a sealed receipt on the charging document.   This negates the necessity for the execution of a formal discharge document. Electronic discharges are also available in this case.

Discharge by Law

Charges and burdens may be cancelled by application by a party other than the owner of the right, typically the registered owner who claims that the burden no longer affects the land.

Certain rights may be discharged based on the operation of law, the passage of time or another basis.   If the facts are sufficiently clear, then the Land Registry may cancel the burden without requiring a court order. Notice will usually be required to be served on the owners of the rights before cancellation, giving them the opportunity to contest the matter.

Some types of the burden will terminate because of circumstances or their nature.  A personal right of residence for life will terminate on death.  An option or other right may by it terms, expire. Leases terminate at the end of their term. Lis pendens expire with the litigation. Easements can be lost by disuse in much the same manner as they are acquired by use.

Applications may be made on the basis that the relevant burden has become statute-barred.  In other cases, the burden may be satisfied, such as where a mortgage or charge has been paid off.  A chargee or mortgagee is obliged to release the charge.  However, if it is not done, an application may be made unilaterally by the chargor.

A burden may be cancelled on foot of an application supported by a documentary release or on proof of abandonment on affidavit or by court order if required.

Sporting Rights

Sporting and fishery rights were commonly excepted on registration to the Land Commission or others on the acquisition of agricultural land under Land Purchase Acts.  Fishing rights notes appear commonly on titles in Ireland,  even where these is no apparent body of water or on the land.

Where sporting rights other than fishing rights were reserved to a person other than the registered owner, and those rights have not been exercised in the period of twelve years, the rights so reserved, cease to exist on the expiry of such period. On application being made by any person interested, the Registrar of Titles shall, if satisfactory evidence of the exercise of the said rights in such period is not forthcoming, cause the entry of the said rights to be cancelled in the appropriate register.

The Land Registry may require notices or advertising in local newspapers before the release of sporting rights.  In many cases, the Department of Agriculture readily agrees to release the same as successor to the Land Commission.

Termination of Lease

Where a lease has been terminated by forfeiture and re-entry, the leasehold folio in respect of it may be terminated by an application which furnished proof of the position. A court order or other evidence of effective forfeiture or surrender will be required.  In the case of forfeiture of a lease, a period is allowed in which the lessee may apply for relief from forfeiture.

The procedure on application for cancellation of a burden other than by consent (such as forfeiture of a lease) usually allows the holders of the burden concerned to make representations.  Upon expiry of the time limits for a reply or on exhausting of the procedures and adjudication by the Land Registry, the title is extinguished, and the folio is closed.

A lease may terminate because of the expiry of its term.  Rights may arise to a new lease for the tenant/lessee. Pending the grant of a new lease, the tenant’s tenancy should be protected as a burden which affects land without registration. A new lease may be the subject of an application for registration in itself.