Court Procedures
LAND AND CONVEYANCING LAW REFORM ACT 2009
AN ACT TO PROVIDE FOR THE REFORM AND MODERNISATION OF LAND LAW AND CONVEYANCING, TO REPEAL ENACTMENTS THAT ARE OBSOLETE, UNNECESSARY OR OF NO BENEFIT IN MODERN CIRCUMSTANCES, TO PROVIDE FOR THE VARIATION OF TRUSTS, TO MODERNISE THE LAW RELATING TO LIS PENDENS, TO AMEND THE REGISTRATION OF DEEDS AND TITLE ACTS 1964 AND 2006 AND CERTAIN OTHER ENACTMENTS AND FOR RELATED MATTERS.
[21st July, 2009]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
PART 1
Preliminary and General
Short title.
1.— This Act may be cited as the Land and Conveyancing Law Reform Act 2009.
Commencement.
2.— This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes and different provisions.
Interpretation generally.
3.— In this Act, unless the context otherwise requires—
“ Act of 1957 ” means the Statute of Limitations 1957;
“ Act of 1963 ” means the Companies Act 1963;
“ Act of 1964 ” means the Registration of Title Act 1964 ;
“ Act of 1965 ” means the Succession Act 1965 ;
“Act of 1976” means the Family Home Protection Act 1976 ;
“Act of 1988” means the Bankruptcy Act 1988 ;
“Act of 1989” means the Building Societies Act 1989 ;
“Act of 1995” means the Family Law Act 1995 ;
“Act of 1996” means the Family Law (Divorce) Act 1996 ;
“Act of 2000” means the Planning and Development Act 2000 ;
“Act of 2005” means the Interpretation Act 2005 ;
“Act of 2006” means the Registration of Deeds and Title Act 2006 ;
“assent” has the meaning given to it by section 53 of the Act of 1965;
“consent” includes agreement, licence and permission;
“conveyance” includes an appointment, assent, assignment, charge, disclaimer, lease, mortgage, release, surrender, transfer, vesting certificate, vesting declaration, vesting order and every other assurance by way of instrument except a will; and “convey” shall be read accordingly;
“ the court ” means—
(a) the High Court, or
(b) the Circuit Court when exercising the jurisdiction conferred on it by the Third Schedule to the Courts (Supplemental Provisions) Act 1961;
“covenant” includes an agreement, a condition, reservation and stipulation;
“deed” has the meaning given to it by section 64 (2);
“development” has the meaning given to it by section 3 of the Act of 2000;
“development plan” has the meaning given to it by section 3(1) of the Act of 2000;
“disposition” includes a conveyance and a devise, bequest or appointment of property by will and “ dispose” shall be read accordingly;
“exempted development” has the meaning given to it by section 4 of the Act of 2000;
“fee farm grant” means any—
(a) grant of a fee simple, or
(b) lease for ever or in perpetuity,
reserving or charging a perpetual rent, whether or not the relationship of landlord and tenant is created between the grantor and grantee, and includes a sub-fee farm grant;
“freehold covenant” has the meaning given to it by section 48 ;
“ freehold estate ” has the meaning given to it by section 11 (2);
“housing loan” has the meaning given to it by section 2 (1) of the Consumer Credit Act 1995 , as substituted by section 33 of, and Part 12 of Schedule 3 to, the Central Bank and Financial Services Authority of Ireland Act 2004 and “housing loan mortgage” means a mortgage to secure a housing loan;
“incumbrance” includes an annuity, charge, lien, mortgage, portion and trust for securing an annual or capital sum; and “incumbrancer” shall be read accordingly and includes every person entitled to the benefit of an incumbrance or to require its payment or discharge;
“instrument” includes a deed, will, or other document in writing, and information in electronic or other non-legible form which is capable of being converted into such a document, but not a statutory provision;
“judgment mortgage” means a mortgage registered by a creditor under section 116 ;
“land” includes—
(a) any estate or interest in or over land, whether corporeal or incorporeal,
(b) mines, minerals and other substances in the substratum below the surface, whether or not owned in horizontal, vertical or other layers apart from the surface of the land,
(c) land covered by water,
(d) buildings or structures of any kind on land and any part of them, whether the division is made horizontally, vertically or in any other way,
(e) the airspace above the surface of land or above any building or structure on land which is capable of being or was previously occupied by a building or structure and any part of such airspace, whether the division is made horizontally, vertically or in any other way,
(f) any part of land;
“ Land Registry ” has the meaning given to it by section 7 of the Act of 1964;
“ landlord ” means the person, including a sublandlord, entitled to the legal estate immediately superior to a tenancy;
“ lease ” as a noun means an instrument creating a tenancy; and as a verb means the granting of a tenancy by an instrument;
“ legal estate ” has the meaning given to it by section 11 (1);
“ legal interest ” has the meaning given to it by section 11 (4);
“ lessee ” means the person, including a sublessee, in whom a tenancy created by a lease is vested;
“ lessor ” means the person, including a sublessor, entitled to the legal estate immediately superior to a tenancy created by a lease;
“ Minister ” means the Minister for Justice, Equality and Law Reform;
“ mortgage ” includes any charge or lien on any property for securing money or money’s worth;
“ mortgagee ” includes any person having the benefit of a charge or lien and any person deriving title to the mortgage under the original mortgagee;
“ mortgagor ” includes any person deriving title to the mortgaged property under the original mortgagor or entitled to redeem the mortgage;
“ notice ” includes constructive notice;
“ personal representative ” means the executor or executrix or the administrator or administratrix for the time being of a deceased person;
“ planning permission ” means permission required under Part III of the Act of 2000;
“ possession ” includes the receipt of, or the right to receive, rent and profits, if any;
“ prescribed ” means prescribed by regulations made under section 5 ;
“ property ” means any real or personal property or any part or combination of such property;
“Property Registration Authority” has the meaning given to it by section 9 of the Act of 2006;
“purchaser” means an assignee, chargeant, grantee, lessee, mortgagee or other person who acquires land for valuable consideration; and “purchase” shall be read accordingly;
“ registered land ” has the meaning given to it by section 3(1) of the Act of 1964;
“Registry of Deeds” has the meaning given to it by section 33 of the Act of 2006;
“ rent ” includes a rent payable under a tenancy or a rentcharge, or other payment in money or money’s worth or any other consideration, reserved or issuing out of or charged on land, but does not include interest;
“ rentcharge ” means any annual or periodic sum charged on or issuing out of land, except—
(a) a rent payable under a tenancy, and
(b) interest;
“ right of entry ” means a right to take possession of land or of its income and to retain that possession or income until some obligation is performed;
“ right of re – entry ” means a right to forfeit the legal owner’s estate in the land;
“ strict settlement” has the meaning given to it by section 18 (1)(a);
“ subtenancy ” includes a sub-subtenancy; and a “ subtenant ” shall be read accordingly;
“ tenancy ” means the estate or interest which arises from the relationship of landlord and tenant however it is created but does not include a tenancy at will or at sufferance;
“ tenant ” means the person, including a subtenant, in whom a tenancy is vested;
“ trust corporation ” has the meaning given to it by section 30(4) of the Act of 1965;
“ trust of land ” has the meaning given to it by section 18 (1);
“ unregistered land ” has the meaning given to it by section 3(1) of the Act of 1964;
“ valuable consideration ” does not include marriage or a nominal consideration in money;
“ will ” includes codicil.
Service of notices.
[CA 1881, s. 67]
4.— (1) A notice authorised or required to be given or served by or under this Act shall, subject to subsection (2), be addressed to the person concerned by name and may be given to or served on the person in one of the following ways:
(a) by delivering it to the person; or
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address; or
(c) by sending it by post in a prepaid letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address; or
(d) where the notice relates to a building with which the person is associated, and it appears that no person is in actual occupation of the building, by affixing it in a conspicuous position on the outside of the building or the property containing the building; or
(e) if the person concerned has agreed to service of notices by means of an electronic communication (within the meaning given to it by section 2 of the Electronic Commerce Act 2000) to that person (being an addressee within the meaning given to it by that section) and provided that there is a facility to confirm receipt of electronic mail and that such receipt has been confirmed, then by that means; or
(f) by sending it by means of a facsimile machine to a device or facility for the reception of facsimiles located at the address at which the person ordinarily resides or carries on business or, if an address for the service of notices has been furnished by the person, that address, provided that the sender’s facsimile machine generates a message confirming successful transmission of the total number of pages of the notice; or
(g) by any other means that may be prescribed.
(2) Where the notice concerned is to be served on or given to a person who is the owner, landlord, tenant or occupier of a building and the name of the person cannot be ascertained by reasonable inquiry it may be addressed to the person at that building by using the words “the owner”, “the landlord”, “the tenant” or “the occupier” or other like description, as the case may require.
(3) For the purposes of this section, a company shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.
(4) Where a notice required or authorised to be served or given by or under this Act is served or given on behalf of a person, the notice shall be deemed to be served or given by that person.
(5) A person shall not, at any time during the period of 3 months after the notice is affixed under subsection (1)(d), remove, damage or deface the notice without lawful authority.
(6) A person who knowingly contravenes subsection (5) is guilty of an offence.PART 10
Mortgages
Chapter 1
Creation of mortgages
Legal mortgages.
89.— (1) A legal mortgage of land may only be created by a charge by deed and such a charge, unless the context requires otherwise, is referred to in this Part as a “mortgage”; and “mortgagor” and “mortgagee” shall be read accordingly.
(2) Subject to subsection (3), from the commencement of this Chapter—
(a) any instrument which would, but for the provisions of this section, convey a legal estate or interest in land by way of mortgage, or
(b) any other transaction which under any instrument would operate, but for the provisions of this section, as a mortgage by conveyance of a legal estate or interest in land,
does not create a legal mortgage.
(3) From the commencement of this Chapter, any transaction which under any statutory provision would, but for the provisions of this section, operate as a mortgage by conveyance of a legal estate or interest in land operates as if it were a mortgage under this Part.
(4) From the commencement of this Chapter, any power, whenever created, to mortgage or lend money on mortgage of a legal estate or interest in land operates as a power to mortgage the legal estate or interest by a mortgage under this Part or to lend money on the security of such a mortgage.
(5) This Part applies to both unregistered and registered land.
(6) Nothing in this section affects the creation of equitable mortgages of land.
(7) From the commencement of this Chapter, it is not possible to create a Welsh mortgage and any purported creation of such a mortgage is void.
(8) For the purposes of subsection (7), a “Welsh mortgage” includes any transaction under which a grantee or chargee of land is entitled to hold possession, and take rents and profits in lieu of interest on a loan, of land without the grantor or chargor being under a personal obligation to repay the loan, but being entitled to redeem.
Position of mortgagor and mortgagee.
90.— (1) Subject to this Part, where a mortgage is created after the commencement of this Chapter—
(a) the mortgagor has the same powers and rights and the same protection at law and in equity as the mortgagor would have been entitled to,
(b) the mortgagee has the same obligations, powers and rights as the mortgagee would have had,
if the mortgagee’s security had been created by a conveyance before that commencement of the legal estate or interest in the land of the mortgagor.
(2) Without prejudice to the generality of subsection (1)(b) and subject to subsection (3), a first mortgagee has the same right to possession of documents of title as such mortgagee would have had if the security had been created by a conveyance before the commencement of this Chapter.
(3) Notwithstanding any stipulation to the contrary, a mortgagee who retains possession or control of documents of title relating to the mortgaged land is, in addition to being subject to the mortgagor’s rights under section 91 , responsible for their safe custody as if an undertaking for this were given under section 84 .
Court order for sale.
94.— (1) This section applies to any action brought by a mortgagor for—
(a) redemption, or
(b) sale, or
(c) the raising and payment in any manner of the mortgage debt, or
(d) any combination of these in the alternative.
(2) In any action to which this section applies the court may, if it thinks fit, direct a sale of the mortgaged property on such terms as it thinks fit.
(3) Without prejudice to the generality of the court’s discretion under subsection (2), it may—
(a) allow any time for redemption or payment of the mortgage debt,
(b) require lodgment in court of a sum to meet the expenses of a sale and to secure a performance of its terms,
(c) give directions as to costs and require the giving of security for costs,
(d) direct a sale without previously determining priorities of incumbrances,
(e) give the conduct of the sale to a particular party,
(f) make a vesting order conveying the mortgaged property to a purchaser or appoint a person to make such a conveyance.
(4) Except in the case of a housing loan mortgage, this section takes effect subject to the terms of the mortgage.
Power of sale.
100.— (1) Subject to subsection (3) and sections 101 to 107 , a mortgagee or any other person for the time being entitled to receive, and give a discharge for, the mortgage debt may sell or concur with any other person in selling the mortgaged property provided—
[CA 1881, ss. 19(1)(i), 20, 21(4), 21(6) and (7)]
[CA 1911, s. 5(2)]
(a) following service of notice on the mortgagor requiring payment of the mortgage debt, default has been made in payment of that debt, or part of it, for 3 months after such service, or
(b) some interest under the mortgage or, in the case of a mortgage debt payable by instalments, some instalment representing interest or part interest and part capital is in arrears and unpaid for 2 months after becoming due, or
(c) there has been a breach by the mortgagor, or some person concurring in the mortgage, of some other provision contained in the mortgage or any statutory provision, including this Act, other than a covenant for payment of the mortgage debt or interest,
and provided in each such case 28 days’ notice in the prescribed form has been served on the mortgagor warning of the possibility of such sale.
(2) The power of sale shall not become exercisable without a court order granted under subsection (3), unless the mortgagor consents in writing to such exercise not more than 7 days prior to such exercise.
(3) At any time after expiration of the 28 days’ notice given under subsection (1), a mortgagee may apply to the court for an order authorising exercise of the power of sale and on such application the court may, if it thinks fit, grant such authorisation to the applicant on such terms and conditions, if any, as it thinks fit.
(4) An application under subsection (3) may be made with an application under section 97 (2) and, in such case, both may be heard together.
(5) A mortgagee is not answerable for any involuntary loss resulting from the exercise or execution of the power of sale under this Chapter, of any trust connected with it or of any power or provision contained in the mortgage.
(6) Once the power of sale becomes exercisable, the person entitled to exercise it may demand and recover from any person, other than a person having in the mortgaged property an estate or interest in priority to the mortgage, all deeds and documents relating to the property, or its title, which a purchaser under the power of sale would be entitled to demand and recover.
Applications under sections 97 and 100.
101.— (1) Upon an application for an order under, and without prejudice to the generality of, sections 97 (2) and 100 (3), where it appears to the court that the mortgagor is likely to be able within a reasonable period to pay any arrears, including interest, due under the mortgage or to remedy any other breach of obligation arising under it, the court may—
(a) adjourn the proceedings, or
(b) on making an order, or at any time before enforcement or implementation of such an order—
(i) stay the enforcement or implementation, or
(ii) postpone the date for delivery of possession to the mortgagee, or
(iii) suspend the order,
for such period or periods as it thinks reasonable and, if an order is suspended, the court may subsequently revive it.
(2) Any adjournment, stay, postponement or suspension under subsection (1) may be made subject to such terms and conditions with regard to payment by the mortgagor of any sum secured by the mortgage or remedying of any breach of obligation as the court thinks fit.
(3) The court may revoke or vary any term or condition imposed under subsection (2).
(4) Subject to subsection (5), an application under section 97 (2) or section 100 (3) may be made to the High Court.
(5) Where an application under section 97 (2) or section 100 (3) concerns property which is subject to a housing loan mortgage the Circuit Court shall have exclusive jurisdiction to deal with the application and the application shall not be made to the High Court.
(6) The jurisdiction of the Circuit Court to hear and determine applications under sections 97 (2) and 100 (3) concerning property which is subject to a housing loan mortgage shall be exercised by the judge of the circuit where the property or any part of it is situated.
(7) Nothing in this section affects the jurisdiction of the court under sections 7 and 8 of the Act of 1976.
Incidental powers.
102.— Incidental to the power of sale are the powers to—
[CA 1881, s. 19(1)(i)][CA 1911, s. 4]
(a) sell the mortgaged property—
(i) subject to prior charges or not,
(ii) either together or in lots,
(iii) by public auction, tender or private contract,
(iv) subject to such conditions respecting title, evidence of title, or other matter as the mortgagee or other person selling thinks fit,
(b) rescind any contract for sale and resell,
(c) impose or reserve or make binding by covenant or otherwise, on the sold part of the mortgaged land, or on the unsold part, any restriction or reservation with respect to building on or other user of land, or with respect to mines and minerals, for the purpose of their more beneficial working, or with respect to any other matter,
(d) sell the mortgaged land, or all or any mines and minerals apart from the surface, with or without—
(i) any easement, right or privilege connected with building or other purposes on the sold part of the mortgaged land or the unsold part,
(ii) an exception or reservation of all or any of the mines and minerals in the mortgaged land and with or without a grant, reservation or imposition of powers of working, wayleaves, rights of way, rights of water and drainage and other powers, easements, rights and privileges for or connected with mining purposes, in relation to or on the sold part of the mortgaged land or the unsold part,
(iii) covenants by the purchaser to expend money on the land sold.
Obligations on selling.
103.— (1) In the exercise of the power of sale conferred by this Chapter or any express power of sale, the mortgagee, or any receiver or other person appointed by the mortgagee, shall, notwithstanding any stipulation to the contrary in the mortgage, ensure as far as is reasonably practicable that the mortgaged property is sold at the best price reasonably obtainable.
(2) Within 28 days after completion of the sale, the mortgagee shall serve a notice in the prescribed form on the mortgagor containing information relating to the sale.
(3) A mortgagee who, without reasonable cause, is in breach of the obligation imposed by subsection (2) is guilty of an offence.
(4) Nothing in this section affects the operation of any rule of law relating to the duty of a mortgagee to account to a mortgagor.
(5) This section does not apply to a building society within the meaning of the Act of 1989 or a receiver appointed under the Companies Acts.
(6) In subsection (2) “mortgagor” includes a person last known to the mortgagee to be the mortgagor, but does not include a person to whom, without the knowledge of the mortgagee, any of the rights or liabilities of the mortgagor under the mortgage have been assigned.
Conveyance on sale.
104.— (1) A mortgagee exercising the power of sale conferred by this Chapter, or an express power of sale, has power to convey the property in accordance with subsection (2)—
[CA 1881, s. 21(1)]
(a) freed from all estates, interests and rights in respect of which the mortgage has priority,
(b) subject to all estates, interests and rights which have priority to the mortgage.
(2) Subject to subsections (3)(b) and (4), the conveyance—
(a) vests the estate or interest which has been mortgaged in the purchaser,
(b) extinguishes the mortgage, but without prejudice to any personal liability of the mortgagor not discharged out of the proceeds of sale,
(c) vests any fixtures or personal property included in the mortgage and the sale in the purchaser.
(3) This section—
(a) applies to a sale by a sub-mortgagee so as to enable the sub-mortgagee to convey the head-mortgagor’s property in the same manner as the mortgagee,
(b) does not apply to a mortgage of part only of a tenancy unless any rent which is reserved and any tenant’s covenants have been apportioned as regards the property mortgaged.
(4) Where the mortgaged property comprises registered land, the conveyance is subject to section 51 of the Act of 1964.
Protection of purchasers.
105.— (1) Where a conveyance is made in professed exercise of the power of sale conferred by this Chapter, the title of the purchaser is not impeachable on the ground that—
[CA 1881, s. 21(2)][CA 1911, s. 5(1)]
(a) no case had arisen to authorise the sale, or
(b) due notice had not been given, or
(c) the power was otherwise improperly exercised,
and a purchaser is not, either before or on conveyance, required to see or inquire whether the power is properly exercised.
(2) Any person who suffers loss as a consequence of an unauthorised or improper exercise of the power of sale has a remedy in damages against the person exercising the power.
Mortgagee’s receipts.
106.— (1) Subject to subsection (2), the receipt in writing of a mortgagee is a conclusive discharge for any money arising under the power of sale conferred by this Chapter, or for any money or securities comprised in the mortgage, or arising under it, and a person paying or transferring the same to the mortgagee is not required to inquire whether any money remains due under the mortgage.
[CA 1881, s. 22)]
(2) Subsection (1) does not apply where the purchaser has actual knowledge of an impropriety or irregularity in the exercise of the power of sale or knowingly participates in such an exercise.
(3) Subject to section 107 (5), money received by a mortgagee under the mortgage or from the proceeds of securities comprised in it shall be applied as section 107 requires as regards money arising from a sale under the power of sale conferred by this Chapter.
Application of proceeds of sale.
107.— (1) Money received by the mortgagee which arises from the sale of mortgaged property shall be applied in the following order—
[CA 1881, s. 21(3)]
(a) in discharge of prior incumbrances, if any, to which the sale was not made subject or payment into court of a sum to meet any such prior incumbrances,
(b) in payment of all charges, costs and expenses properly incurred by the mortgagee as incident to the sale or any attempted sale or otherwise,
(c) in discharge of the mortgage debt, interest and costs, and other money, if any, due under the mortgage.
(2) Any residue of the money so received shall be held on trust by the mortgagee to be paid to the person who would, but for the sale, be the mortgagee secured on the property sold next in priority after the mortgagee selling, or is otherwise authorised to give receipts for the money so received, or, if there is no such person, the mortgagor.
(3) Where, in accordance with subsection (2), the mortgagee gives effect to the trust of the residue by paying it to a subsequent mortgagee, the latter shall apply it in accordance with subsections (1)(c) and (2) and similar obligations attach to each subsequent mortgagee who receives any of the residue.
(4) Any mortgagee who so gives effect to the trust is discharged from any further obligation with respect to the residue.
(5) For the purposes of the application of subsection (1)(b) to money received under section 106 (3), charges, costs and expenses payable include those properly incurred in recovering and receiving the money or securities, and in conversion of securities into money, instead of those incident to the sale.
Application of money received.
109.— (1) Subject to section 110 (4), the receiver shall apply all money received in the following order—
[CA 1881, s. 24(8)]
(a) in discharge of all rates, rents, taxes and other outgoings affecting the mortgaged property,
(b) in discharge of all annual sums or other payments, and the interest on all principal sums, which have priority to the mortgage under which the receiver is appointed,
(c) in payment of the receiver’s commission,
(d) in payment of premiums on insurance, if any, payable under this Chapter or the mortgage,
(e) in defraying the cost of repairs as directed in writing by the mortgagee,
(f) in payment of interest accruing due in respect of any principal sum due under the mortgage,
(g) in or towards discharge of the principal sum, if so directed in writing by the mortgagee.
(2) The residue (if any) of any money so received after making the payments specified in subsection (1) shall be paid by the receiver to the person who, but for the possession of the receiver, would have been entitled to receive that money or who is otherwise entitled to the mortgaged property.