Land Registry & Estates
Land Registration
Registration involves a State guaranteed title entered on a central register. Land registration and registration of title were introduced in England and Ireland at the end of the 19th Century.
In Ireland, the Land Registry became important in property law as the Land Commission purchased out the freehold interest of almost all agricultural land and vested it in the tenant farmers for freehold registered estates. This was financed by long-dated mortgages (land annuities) from the State.
Eventually, land registration came to predominate title in Ireland. Since 2011 registration of title is mandatory on the sale of land in all counties. Over time most unregistered (Registry of Deeds) title based on deeds is likely to disappear.
The Land Registry preserves the concept of estates and interests at common law, which have been modified and rationalised under the 2009 legislation. There is a register of freehold titles, a registry of leasehold titles and a register of intangible rights in land not attaching to any particular land.
Interests affecting land are registered as burdens on part three of the title or folio. They would include in particular, covenants, leases, mortgages and easements.
Equitable Interests
The Registrar of Title does not register equitable interests in property. Such interests are recognised by the courts and are enforceable, usually by legal proceedings against the registered (legal owner). Under the general priorities principles, equitable interests are vulnerable to being overreached on a sale by the legal owner to a bona fide purchaser for value without notice.
Under Registration of Title legislation, the purchaser takes free of unregistered rights and interests, other than those categories, which affect registered land without registration.
The principle has been further extended in the Conveyancing and Land Law Reform Act 2009. Both registered and unregistered title land, held under an express or deemed trust (most land with multiple interests) may be sold by two trustees or a corporate trustee, free of all equitable and unregistered interests. They are thereby overreached, irrespective of whether the purchaser has notice to them unless they are registered.
Protection of Equitable Interests
Some types of equitable interests when perfected are capable of registration. The ability to perfect depends on the nature of the interest or right concerned. In most cases, equitable interests are unperfected and not registrable. The rights of transferees and chargees under unregistered documents may be perfected by registration. Until then, the rights are equitable and vulnerable to being defeated by the transfer or other disposition by the registered owner.
Other rights are incapable of protection until a court declaration or Land Registry ruling is made on foot of an application to assert and prove the relevant interests or rights.
The Land Registry may protect equitable interests indirectly. A caution or inhibition may be placed on the folio which gives indirect protection for the right or interest concerned. A caution gives temporary protection only. It requires a warning only of a proposed dealing by the registered owner. The right may require to be asserted in a legal action if the registered owner seeks to deal with the land in breach of the right or alleged right.
Equitable interests include the following:
- a contract for the purchase of land,
- options,
- a contract for a mortgage,
- rights of successors on death,
- rights under an unregistered disposition,
- rights under trusts.
Cautions
It is in the nature of some equitable rights that they arise in circumstances that may be disputed. In such cases, the right or interest may require to be determined in court proceedings. If the relevant right has not been asserted and established or requires the consent of the registered owner which is not forthcoming, a caution may be granted pending resolution of the litigation.
If the caution relates to an interest in part of the registered title only, it must be separately identified. Evidence must be lodged by an affidavit showing that there is a presumptive or prima facie right that may be enforced against the registered owner. A person who lodges a caution without reasonable cause may be obliged to pay compensation to a person who suffers a loss, typically the registered owner.
Termination of Caution
Where an application to deal with the land or discharge the caution is lodged, a warning is issued to the person who lodged the caution. If he does not respond, the caution will lapse and be deregistered. If he requests continuation or objects to the registration of an adverse dealing, he will need to furnish proof that steps have been taken generally by way of litigation) to assert a claim protected by the caution.
In the case of a transfer to a person who gives no value, such as a donee of a gift, judgment mortgagee, vesting in a bankruptcy trustee, the caution will generally be left in place. A person who does not purchase and gives no consideration takes subject to any unregistered rights affecting the title.
Registration will be frozen until the cautioner proceeds to court to establish his right. If proceedings are not commenced within a reasonable time, the caution will be cancelled.
Inhibitions
An inhibition is a restriction on transfer. It protects unregistrable and unregistered rights that may not mature for some period. It prevents dealing with the registered title, subject to a condition, such as the consent of a third party. It is designed to protect longer-term rights which may not mature for some period. The Land Registry rules provide for the entry of inhibitions. The application may be modified as may is appropriate to the circumstances.
Where registration is sought without the consent of the registration of the registered owner, the registrar investigates the position in respect of inhibitions. An inhibition may be entered on foot of an application, by the registrar. The registrar may make such inquiries as he sees fit. The registrar may refuse to enter an inhibition without a court order. A court-order inhibition requires variation by court order.
Greater evidence is required to support an inhibition than a caution. In some cases, the position may be straightforward as the registered owner’s consent is available. In the absence of consent, the applicant must prove his right or interest. If the Land Registry is satisfied that there is a prima facie case, it serves notice on the registered owner giving an opportunity to object. If he does not object, registration will proceed.
The terms of the inhibition will be tendered by the person who makes the application for the protection of the relevant right. It may restrict all dispositions or a certain class of dispositions only. It may require the consent of a particular person or an order of the registrar, in order to allow registration. It may be limited until proof that a certain circumstance no longer applying is furnished.
Interests Protected
The classic example of an interest that may be protected, is the interest of beneficiaries under a trust. The inhibition would protect against transfer by a trustee registered owner. Such an inhibition will be usually entered with the consent of the registered owner.
An inhibition may protect the petitioner in bankruptcy in the period before adjudication and registration of an adjudication of bankruptcy. It may protect an Optionee.
Certain (general/exclusive) rights of residence may not be protected by an inhibition as they are a registrable burden. Others may be the subject of an inhibition.
Priority Search
A priority search freezes the folio for a three-week period. Where the application is lodged within this period by the person who has the benefit of the priority search, it will take priority over any other dealings lodged in the meantime.
It is generally entered by a person who has contracted to purchase property and wishes to protect against the possibility of an adverse disposition by the seller/transferor being registered before registration of the transfer deed. The priority search is noted on the folio for the period concerned.
Trusts and Settlements
Trusts are not registered expressly on the registrar. However, they may be protected by cautions and more commonly and appropriately by an inhibition. In the case of a trust, the trustees will generally be registered owners. The trust deed will usually grant the trustee powers to enable him or them to deal with the land by way of sale, mortgage, lease etc.
Where interests in land are held successively, without a formal trust, such as, for example, where there is a life interest and remainder interests, a settlement was deemed to arise under the Settled Land Acts. Under the pre-2009 legislation, the tenant for life in cooperation with the trustees of the settlement had powers of disposition of the land by statute. They may be expanded but may not be reduced by the terms of the settlement. See generally the section on settled land.
Since the 2009 Act reforms all land held under a trust, a settlement, or held by a minor is deemed to be held under a trust of land. The trustee of land is given powers to deal with the land. The objective is to simplify conveyancing. In the case of a transfer by two trustees, most rights are entirely overreached, unless registered.
References and Sources
Primary Texts
Wylie on Irish Land Law Wylie 6th Edition 2020
Land Law In Ireland -Lyall 4th Edition 2018
Principles Of Irish Property Law de Londras 2nd Edition 2011
Equity and the Law of Trusts in Ireland- Keane 3rd Edition
Land Law Kenna & Murphy 2019
Land Law Pearce & Mee 3rd Edition 2011
Other Irish Sources
The Land and Conveyancing Law Reform Act 2009: Annotations and Commentary -Wylie 2nd Edition 2017
Property Legislation 2009 2011 Cannon, Clancy, Kenna 2012
Irish Land Law – A Casebook: Adanan Maddox 2020
A Casebook on Equity and Trusts in Ireland – Wylie
Shorter Guides
Land Law Nutshell Cannon 2020
UK Textbooks
Land law C. Bevan 2nd ed.2020
Land Law: Text, Cases and Materials B McFarlane, N Hopkins and S Nield, (4th ed. OUP 2018)
Property Law R Smith(10th ed., Pearson, 2020)
Cheshire and Burn’s Modern Law of Real Property by Burn, E. H. 2011
Modern Land Law Dixon 2018
Elements of Land Law Gray, 2009
Property law: cases and materials Smith 2015
Land law Cooke 2015