Registered Burdens
Registration of Title Act
Creation and effect of charge on registered land.
62.—(1) A registered owner of land may, subject to the provisions of this Act, charge the land with the payment of money either with or without interest, and either by way of annuity or otherwise, and the owner of the charge shall be registered as such.
(2) There shall be executed on the creation of a charge, otherwise than by will, an instrument of charge in the prescribed form F82[…] but, until the owner of the charge is registered as such, the instrument shall not confer on the owner of the charge any interest in the land.
(3) F83[…]
(4) Any power, howsoever conferred, to borrow or lend money on the security of a mortgage shall be construed as including power to do so on the security of a registered charge.
(5) F84[…]
(6) On registration of the owner of a charge on land for the repayment of any principal sum of money with or without interest, the instrument of charge shall operate as a F85[legal mortgage under Part 10 of the Land and Conveyancing Law Reform Act 2009], and the registered owner of the charge shall, for the purpose of enforcing his charge, have all the rights and powers of a mortgagee F85[under such a mortgage], including the power to sell the estate or interest which is subject to the charge.
(7) F83[…]
(8) F83[…]
(9) If the registered owner of a charge on land sells the land in pursuance of the powers referred to in subsection (6), his transferee shall be registered as owner of the land, and thereupon the registration shall have the same effect as registration on a transfer for valuable consideration by a registered owner.
(10) When a transferee from the registered owner of the charge is registered, under subsection (9), as owner of the land, the charge and all estates, interests, burdens and entries puisne to the charge shall be discharged.
(11) When it is expressed in the instrument of charge that any person covenants for repayment of the principal sum charged, there shall be implied a covenant by that person with the registered owner for the time being of the charge to pay the sum charged and interest (if any) thereon at the time and rate specified in the instrument of charge, and also a covenant, if the sum or any part thereof is unpaid at the time so specified, to pay interest half-yearly at the specified rate on so much of the principal sum as for the time being remains unpaid.
Saving for mortgages registered as charges.
63.—(1) A charge registered prior to the commencement of this Act shall not be void or be deemed ever to have been void—
(a) by reason only that it was expressed to have been created by way of mortgage, or
(b) by reason only that the consent of the Land Commission or the Commissioners of Public Works or such other consent as may be provided for by any enactment was not obtained to any demise or sub-demise expressed to have been created by any such mortgage;
and the registration of the charge as a burden on registered land shall not be invalid or be deemed ever to have been invalid for either of these reasons.
(2) In this section “mortgage” includes both a mortgage by demise or sub-demise and a mortgage by conveyance or assignment with a proviso for redemption.
Transfer of charge.
64.—(1) The registered owner of a charge may transfer the charge to another person as owner thereof, and the transferee shall be registered as owner of the charge.
(2) There shall be executed on the transfer of a charge an instrument of transfer in the prescribed form, F86[…] but until the transferee is registered as owner of the charge, that instrument shall not confer on the transferee any interest in the charge.
(3) F87[…]
(4) On registration of the transferee of a charge, the instrument of transfer shall operate as a conveyance by deed within the meaning of the Conveyancing Acts, and the transferee shall—
(a) have the same title to the charge as a registered transferee of land under this Act has to the land, under a transfer for valuable consideration or without valuable consideration, as the case may be; and
(b) have for enforcing his charge the same rights and powers in respect of the land as if the charge had been originally created in his favour.
Discharge of registered charge.
65.—(1) F88[The Authority] shall note on the register the satisfaction of a registered charge or of any part of such a charge on registered land, or of the release of any part of registered land from a registered charge, either at the request of the registered owner of the charge, or on proof in such manner as is hereinafter mentioned, or in such other manner as may be prescribed, and thereupon the charge shall to the extent so noted cease to operate.
(2) For the purposes of this section, the receipt of the registered owner for the time being of a charge shall be sufficient proof of the satisfaction of the charge, or of any part of the charge, and a release signed by the registered owner for the time being of a charge shall be sufficient proof of the release of any part of registered land subject to that charge.
Transmission, etc., of charge.
66.—The provisions of this Act with respect to the transmission of registered land and the defeasance of the estate or interest of the registered owner shall apply, with the prescribed modifications, to transmissions and defeasances in the case of registered charges on land.
Restriction on custody of land certificate by registered owner of a charge.
67.—(1) The registered owner of a charge shall not, merely by reason of his being such owner, be entitled to the possession of the land certificate in respect of the registered land which is subject to the charge.
(2) Every stipulation in relation to a registered charge on land (whether made before or after the creation of the charge) whereby the custody of the land certificate in respect of such land is to be given to the registered owner of such charge shall be void.
Other Interests in Registered Land
Creation and effect of subordinate rights and interests.
68.—(1) Subject to the provisions of this Act, the registered owner of land shall alone be entitled to transfer or charge the land by registered disposition, and the registered owner of a charge shall alone be entitled to transfer the charge by registered disposition.
(2) Nothing in this Act shall prevent a person from creating any right in or over any registered land or registered charge, but all such rights shall be subject to the provisions of this Act with respect to registered transfers of land or charges for valuable consideration.
(3) An unregistered right in or over registered land (not being a burden to which the land is subject by virtue of section 72) shall not affect the registered owner of a charge created on the land for valuable consideration.
Burdens which may be registered as affecting registered land.
69.—(1) There may be registered as affecting registered land any of the following burdens, namely—
(a) any incumbrance on the land existing at the time of the first registration of the land;
(b) any charge on the land duly created after the first registration of the land;
(c) any rentcharge (not being a rentcharge to which, though not registered, the land is subject under section 72) or fee farm or other perpetual rent issuing out of the land;
(d) any power to charge land with payment of money, whether created or arising before or after the first registration of the land;
(e) any trust for securing money created or arising after the first registration of the land;
(f) any lien on the land for unpaid purchase money;
(g) any lease where the term granted is for a life or lives, or is determinable on a life or lives, or exceeds twenty-one years F89[(or such other period as may be prescribed)], or where the term is for any less estate or interest but the occupation is not in accordance with the lease;
(h) any judgment or order of a court, whether existing before or after the first registration of the land;
(i) any judgment mortgage, recognizance, State bond, inquisition or lis pendens, whether existing before or after the first registration of the land;
(j) any easement, profit à prendre or mining right created by express grant or reservation after the first registration of the land;
F90[(jj) any easement or profit à prendre where the Authority is satisfied, pursuant to section 49A, that there is an entitlement to such an easement or profit à prendre;]
(k) any covenant or condition relating to the use or enjoyment of the land or of any specified portion thereof;
F91[(kk) a freehold covenant within the meaning of section 48 of the Land and Conveyancing Law Reform Act 2009;]
(l) any estate in dower;
(m) any burden to which section 54 of the Forestry Act, 1946, relates;
(n) any right of the Land Commission or a local authority to lay pipe-lines for whatsoever purpose and any right ancillary thereto;
(o) 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;
(p) a power of distress or entry;
(q) 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);
(r) a burden created by statute or under a statutory power that is not one of the burdens to which, though not registered, registered land is subject under section 72;
F92[(rr) a judgment opening the proceedings referred to in Article 3(1) of Council Regulation (EC) No 1346/2000 1 of 29 May 2000 on insolvency proceedings,]
F93[(rr) an agreement under section 18 of the Wildlife Act, 1976, which provides that it shall be enforceable against persons deriving title to the relevant land under a party to the agreement;]
F94[(rrr) an order under section 18(1) of the Wildlife (Amendment) Act, 2000;]
(s) any such other matter as may be prescribed.
(2) A burden may be registered under this section on the application of the registered owner of the land or of any person entitled to or interested in the burden but, if the application is made without the concurrence of the registered owner of the land or such other person as may be prescribed, the burden shall not be registered except in pursuance of an order of the court.
(3) Any covenant or condition registered under this section may be modified or discharged by order of the court on proof to the satisfaction of the court that the covenant or condition does not run with the land, or is not capable of being enforced against the owner of the land, or that the modification or discharge thereof will be beneficial to the persons principally interested in the enforcement thereof, and may, with the consent of all persons interested in the enforcement thereof, be modified or discharged by F95[the Authority] without any such order.
(4) F95[The Authority] may, on the prescribed evidence and subject to the prescribed conditions, modify or cancel any entry under this section of a burden not being such a covenant or condition as aforesaid.
Registration of ownership of burdens.
70.—The ownership of such of the burdens capable of being registered under section 69 as may be preescribed shall, on such registration, be registered in such register maintained under this Act as may be appropriate.
Registration of judgment mortgages.
F96[71.— (1) Application for registration of a judgment mortgage under section 116 of the Land and Conveyancing Law Reform Act 2009 shall, in the case of registered land, be in such form and in such manner as may be prescribed.
(2) Registration under subsection (1) shall operate to charge the estate or interest of the judgment debtor subject to—
(a) the burdens, if any, registered as affecting that estate or interest,
(b) the burdens to which, though not so registered, that estate or interest is subject by virtue of section 72,
(c) all unregistered rights subject to which the judgment debtor held that estate or interest at the time of registration,
and with the effect stated in section 117 of the said 2009 Act. ]
Priority of registered burdens.
74.—Subject to any entry to the contrary on the register, burdens which are registered as affecting the same land, and which if unregistered would rank in priority according to the date of their creation, shall, if created or arising since the first registration of the land, rank according to the order in which they are entered on the register and not according to the order in which they are created or arise, and shall rank in priority to any other burden affecting the land and created or arising since the first registration of the land, not being a burden to which, though not registered, the land is subject under section 72.
Priority of registered charge for future advances.
75.—(1) Where a registered charge is expressed to be created on any land for the purpose of securing future advances (whether with or without present advances), the registered owner of the charge shall be entitled in priority to any subsequent charge to the payment of any sum due to him in respect of such future advances, except any advances which may have been made after the date of, and with express notice in writing of, the subsequent charge.
(2) In this section “future advances” includes sums from time to time due on an account current, and all sums which by agreement or the course of business between the parties are considered to be advances on the security of the charge.
Power of charging to be exercised by registered charge.
76.—Where a power to charge registered land, or a trust for securing money on registered land, is registered as a burden on the land, it may be exercised or executed by the creation of a registered charge and not otherwise, and the person empowered under any such power or trust to charge the land with the payment of any money shall have the same power to create a registered charge on the land for that money as if he were the registered owner of the land, and the charge shall be entered in its proper priority.
Powers with respect to statutory charges.
77.—(1) Where a person has, under or by virtue of any enactment, a charge on registered land for the payment of any money, or a power to charge registered land with the payment of any money, he shall have the same power to create a registered charge on the land for that money as if he were the registered owner of the land.
(2) Registration of a charge under this section shall have the same effect as, and make unnecessary, registration thereof in pursuance of any other enactment.
Term of years vested in trustee for raising money out of registered land.
78.—Where a term of years is vested, whether before or after the passing of this Act, in a trustee or other person for the purpose of raising money out of registered land, such vesting shall operate as a trust for securing money on registered land or as a power to charge registered land, as the case may be, and may be registered as a burden on such land, and, where so registered, may be exercised or executed by the creation of a registered charge and not otherwise and the person empowered in any such trust or power to charge the land with payment of any money shall have the same power to create a registered charge on the land for that money as if he were the registered owner of the land, and the charge shall be entered in its proper priority.
Term of years vested in trustee for raising money, or mortgage, prior to first registration.
79.—(1) Where, prior to the first registration of land, a term of years is vested, whether before or after the passing of this Act, in a trustee or other person for the purpose of raising money out of the land, such vesting shall, on the first registration of the land, operate as a trust for securing money on registered land or as a power to charge registered land, as the case may be, and may be registered as a burden on the land, and, where so registered, may be exercised or executed by the creation of a registered charge and not otherwise, and the person empowered in any such trust or power to charge the land with payment of any money shall have the same power to create a registered charge on the land for that money as if he were the registered owner of the land, and the charge shall be entered in its proper priority.
(2) Where, prior to first registration, land has become subject to any mortgage, mortgage by demise or sub-demise or term of years to secure money actually raised, such mortgage, mortgage by demise or sub-demise or term of years shall, on the first registration of the land (if registered with an absolute, qualified or good leasehold title) or (if registered with a possessory title) on the conversion of the title into an absolute or good leasehold title, operate as a charge on the land and shall be registered only as a charge thereon.
Provisions as to incumbrances created or issued by company and not registered or protected.
80.—(1) Where a company registered under the Companies Act, 1963, is registered as owner of land registered under this Act or as owner of a registered charge, F104[the Authority] shall not be concerned with, and a person claiming under a registered disposition for valuable consideration shall not be affected by, any mortgage, charge, debenture, debenture stock, trust deed or other incumbrance created or issued by the company, unless such incumbrance is registered as a burden or protected by caution or inhibition under this Act.
(2) No compensation shall be payable under section 120 by reason of a purchaser’s acquiring any interest under a registered transfer from the company free from any such incumbrance not so registered or protected.
Right of residence.
81.—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, shall be deemed to be personal to the person beneficially entitled thereto and to be a right in the nature of a lien for money’s worth in or over the land and shall not operate to create any equitable estate in the land.
Note of rights appurtenant to land.
82.—Where, on an application by the registered owner or other person entitled, the existence of rights, privileges and appurtenances belonging, appurtenant or attached to registered land is proved to the satisfaction of F105[the Authority], F106[it] shall make an entry in the register showing the existence of such rights, privileges and appurtenances.