Deeds

Date

The insertion of a date is not a strictly necessary part of the deed.  The date inserted may not necessarily be the date of delivery.  This arises where a deed is executed in escrow.

Execution in escrow means that it is executed subject to a condition and it is not to be delivered, i.e. become effective until that condition is satisfied.  This typically arises where the seller signs the deed in advance of completion, giving it to his solicitor.  The solicitor has the authority to deliver the deed and make it effective.

The date of delivery of the deed is critical from the perspective of stamp duty.  Stamp duty obligations arise within – filing and payment obligations arise within 30 to 44 days of execution on delivery of the deed.

Parties

The parties to the deed will be those who as a matter of law must join in to transfer the relevant ownership or estate in sale.  In most cases, this will be straightforward as there will be a single legal and/or beneficial owner.

Where there is a trust, the trustees must have power of sale.  All trustees must join.  See separately the section on Trusts.  The 2009 Act provides that a transfer by trustees to trustees overreaches equitable interests other than those arising from persons in actual occupation of the property.

In other cases, more complex titles will require a consideration of who should be joined as a party to the deed.  A person’s consent may be required.  Under the Family Home Protection Act, the non-owning spouse’s consent is required for the sale or transfer of an interest in the family home.

Recitals

It is usual for deeds to recite existing states of affairs to explain the background.  Recitals are not a necessary part of the deed but may be in practice necessary or at least highly desirable to explain and give context to the circumstances.

Recitals have the advantage that they are presumed true after 15 years.  Therefore, they have the value of making the deed self-proving as a root of title after 15 years.

Price

The consideration/price is inserted in the deed, together with a receipt by the seller.  If the seller does not acknowledge receipt, the question of an unpaid seller’s lien may arise.  This creates a prior interest in the property for the seller.  It is effectively an automatic charge or mortgage arising on the land by reason of non-payment of the purchase price.

If there is a receipt in the deed, this binds the seller as against subsequent purchasers, even if the purchase monies have not in fact been paid.  The insertion of the price in the deed is effectively required for stamp duty purposes to facilitate audit of an e-stamping return.  However, it is not strictly necessary.

Description of Property

The operative or effective part of the deed effects the transfer itself.  In the case of unregistered title, the common form of words is to the effect that the seller grants, and conveys, the premises (as defined) to the buyer to hold the same in fee simple.

With registered title, the land is simply referred to by reference to its title number.  There is prescribed wording in respect of a freehold Land Registry transfer. Simpler wording suffices. The seller transfers the property comprised in Folio X County Y to the buyer. If part of the lands is being transferred, it is necessary to annex a map compliant with Land Registry requirements.

Since compulsory registration has been introduced, it is effectively necessary to furnish, a deed with a Land Registry compliant map describing the property in the case of all sales of unregistered property.  This is to facilitate the buyer’s application for first registration after completion. The map may be separate to the dee provided the deed identifies the property adequately

The description of the property in unregistered deeds is commonly verbal only.  Even if there was a map, it may be inaccurate, hand-drawn and not an Ordnance Survey map.

The Land Registry has always operated by reference to ordnance survey maps.  It is now a requirement on the sale of unregistered property to produce an ordnance survey map delineating the property for the purpose of a first registration.

Extent of Property

It is presumed that the transfer or conveyance includes the ownership to the midpoint of the subsoil in the adjoining roadway.  The same principle applies to rivers.  See separately the sections on highways and waterways.

Difficult issues may arise with boundaries.  There are various presumptions regarding boundaries See separately the section on boundaries under property law.

Where a wall or fence straddles a boundary, it is generally owned by each land owner as tenants in common.  There is a general presumption that a wall is a party wall so that it is owned in common.

The terminology is confusing as hedge and ditch in the legal sense do not correspond with the sense in which it is commonly used. Where there is a mound of earth, it was assumed that the bank of earth was created by digging up soil and drawing it over the bank.  The common law hedge and ditch presumption presumes that the boundary runs along the edge of an artificial ditch.

Questions of interpretation may arise regarding the description of the property in an unregistered title.  There will commonly be a verbal description which sometimes refers to a map.  It is a question of interpretation of the words whether the map is to prevail over the verbal description or vice versa.  It would be a matter of interpretation of the particular words as to which prevails.

Words of Transfer

The traditional form of wording whereby land was transferred by the seller/grantor to the buyer grantee to hold the same unto and to the use of the buyer/grantee in fee simple is no longer strictly necessary.  However, it is conventional in unregistered deeds to insert the estate in sale (fee simple) to put the matter beyond doubt.

Prior to 2009, it was necessary to use particular words to transfer a fee simple estate.  See separately the section on land law in this regard, Specifically the words “To the grantee/buyer and his heirs or to the buyer in fee simple where required.”  This has now been reformed.

The so-called words of limitation were never required in respect of registered title.  It is still sometimes provided in Land Registry deeds, although not strictly necessary.

2009 Act Reforms

A deed is now effective as such by being expressed to be a deed and executed as a deed.  It may equally be expressed as a conveyance, mortgage, lease, or other appropriate wording.  It must be witnessed and delivered.  See below in relation to the notion of delivery.

Formerly deeds required particular technical words in order to transfer the full freehold ownership.  Other technical words apply to different forms of ownership.  Many of the forms of ownership were themselves abolished by the 2009 Act.

The general presumption now is that conveyance of land passes the freehold estate or the maximum estate or interest which a grantor has on the property unless a contrary intention appears.

The legislation attempts to rectify the effect of the non-use of technical wording prior to the 2009 Act.  Where a deed before the Act failed to vest the estate in the buyer by reason of the failure to use proper wording, any such rights in favour of third parties which may have arisen are extinguished unless that third party applies to court within 12 years of the commencement of the legislation, i.e. by 2021.

On the application, the court may make an order declaring the applicant has or has not an interest.  It may refuse the order if no substantial injustice would be done.  It may order compensation.

In practice, such circumstances are unlikely to be common.  Where a deed has failed to use technical wording, the buyer is likely to have an equitable right under the contract to the relevant right or interest concerned.

Scope of Deeds

A deed may reserve rights to the grantor and attach them to the benefit of retained land.  The formerly more restrictive rules in relation to the creation and reservation of such rights have been removed.

A deed confers rights on any persons named on it, notwithstanding that he is not a party.  Such a party may enforce the deed whether or not he is a party to the deed itself.

Conveyance of land is deemed to include all buildings, commons, ditches, erections, fences, fixtures, hedges, watercourses and other features forming part of the land.  There is deemed to be included all easement rights, liberties, profits, and rights attaching to the land.

A conveyance of land which has a house or other building includes all cellars, cisterns, courtyards, drain pipes, fixtures, gardens, lights, outhouses, doors, yards, and other features forming part of those buildings and all advantages, easements and rights attaching to the land and the building.  The grantee obtains the same rights as the grantor held.

A deed will commonly create easements and rights over retained land for the benefit of transferred land.  Correspondingly, rights may be created over the retained land over the transferred land for the benefit of the retained land.

Execution of Deeds I

A deed is executed in the manner set out above.  Under the pre-2009 law, a witness was not strictly necessary.  After 2009, a witness is an absolute requirement.  Prior to 2009, an instrument had to be signed, sealed and delivered.

Sealing historically involved placing molten wax next to the seller’s signature.  In modern times a wafer stick or seal was patched.  A circle with the letters LS was sometimes used.

A seal was not required for a Land Registry deed.

Delivery is a part of execution and making a deed effective.  Delivery requires an intention that the deed becomes operative.  This will usually happen when the seller solicitor physically delivers it to the buyer solicitor in exchange for the purchase money.  However, delivery in the legal sense is a different concept, can be shown in a number of other ways.

Delievery in escrow is delivery subject to a condition.  Once the condition is fulfilled, the deed becomes retrospectively effective.  Therefore, even if the seller or grantor dies in the meantime, the deed can become effective retrospectively on fulfilment of the relevant condition.

Execution of Deeds II

A deed may be signed by an attorney.  An attorney is an agent authorised by deed.  An agent authorised in writing or verbally may not be given authority to execute a deed on behalf of the grantor.

The form of Land Registry transfer has always required a witness.

Prior to the mid-2000s, it was in practice necessary to have two witnesses to an unregistered deed in order to register the same in the Registry of Deeds.  However, since that time, a simple application form may be made signed by a party’s solicitor.

Deeds  are also subject to the same general rules as apply to the interpretation of contracts.

The conveyance passes all claims and rights which the seller has in relation to the property in sale unless the conveyance otherwise indicates.

References and Sources

Primary Texts

Law society of Ireland: Conveyancing 9th Ed Brennan et al.

Investigating Unregistered Title- Magee 2012

Irish Conveyancing Law- Wylie & Woods 4th Ed 2019

Irish Conveyancing Precedents- Laffoy

Irish Conveyancing Statutes – Wylie 2020 6th Edition:

eConveyancing and Title Registration quantity

Complex Conveyancing Law Society PPG Hession 2nd Edition

 

Registration of Deeds and Title in Ireland – Deeney 2014

UK Textbooks

Conveyaning Handbook 28th Ed. Silverman et. al (annual)

A Guide to Conveyancing Residential Property by Alan Stewart

A Practical Approach to Conveyancing (22nd ED) Robert Abbey and Mark Richards

A Practical Approach to Commercial Conveyancing and Property 5th Ed Robert Abbey