The general rules on priority which are applicable to transfers of property, leases, mortgages and the grant of other rights in property in unregistered title land are modified in relation to the registered title. The Registry of Deeds registers the priority of deeds only and does not guarantee title to the property. In contrast, the Land Registry guarantees title.
In the case of a Land Registry title, registration of a transfer for value determines priority. Actual notice of an inconsistent disposition does not displace it in the absence of fraud.
Certain types of interest affect registered title without registration. In these cases, the general principles of priorities apply.
Former Land Certs
Prior to the abolition of Land Certificates, a charge/mortgage could be created by deposit of Land Certificate with a lender. In the absence of the Land Certificate, the registered owner could not deal with the land. Its production was required on the registration a disposition.
Accordingly, the absence of the Land Certificate could formerly effectively block all dealing with the register, in the absence of a fraudulent application for a duplicate land certificate.
Land Certificates are deemed no longer legally effective.
Effect of Transfer
On the registration of a transferee of freehold land as full owner with an absolute title, the instrument of transfer shall operate as a conveyance by deed within the meaning of the Conveyancing Acts. There is vested in the registered transferee an estate in fee simple in the land transferred, together with all implied or express rights, privileges and appurtenances belonging or appurtenant thereto, subject to—
- the burdens, if any, registered as affecting the land, and
- the burdens to which, though not so registered, the land is subject by virtue of section 72,
but shall be free from all other rights, including rights of the State.
Where, however, the transfer is made without valuable consideration, it shall, so far as concerns the transferee and persons claiming under him otherwise than for valuable consideration, be subject to all unregistered rights subject to which the transferor held the land transferred.
The register is conclusive evidence of the title of the owner to the land as appearing on the register and of any right, privilege, appurtenance or burden as appearing. The title shall not, in the absence of actual fraud, be in any way affected in consequence of such owner having notice of any deed, document, or matter relating to the land;
This does shall interfere with the jurisdiction of any court of competent jurisdiction based on the ground of actual fraud or mistake, and the court may upon such ground, make an order directing the register to be rectified in such manner and on such terms as it thinks just.
A transfer or disposition of land or of a charge on land which, if unregistered, would be fraudulent and void, is notwithstanding registration, be fraudulent and void in like manner.
Any entry, erasure or alteration in the register made by fraud shall be void as between all parties or privies to the fraud.
The Land Registry, if satisfied that a person has contracted to purchase or take a lease of registered land or to lend money on the security of a charge on it, shall, on application by the person and on notice by the person to the other party to the contract, make priority entry in the register in the prescribed form.
An application for registration by such a person in relation to the completion of the contract which is in order and is delivered to the Authority within a period of 21 days (or such longer period as may be prescribed) after the date of the entry ranks in priority before any other application for registration made within that period in respect of the land.
In determining whether to prescribe a longer period than 21 days and the duration of any such period, the Registration of Deeds and Titles Rules Committee shall have regard to changes in the period generally elapsing between applications and the need for adequate protection of the interests of parties to the contracts concerned.
Priority of registered burdens.
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.]]
They 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.
Charge for future advances.
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.
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.
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