Registered Title
Voluntary Registration
A land owner with an unregistered title may apply to register his title voluntarily. Voluntary first registration has been and is encouraged by the fee structure.
It is sometimes done where a complex Registry of Deeds title is involved. It may be done to simplify title, particularly on the development and sub-division of land into parcels for sales.
By registering in Land Registry, the Land Registry itself gives a State guaranteed title which simplifies the proof of title on future sales.
Mandatory Registration
Compulsory registration applied to land purchased through the Land Commission and to Land acquired by statutory authority. It also applied in respect of certain other lands which were deemed to have been dealt with under the Land Purchase Act.
In some instances, registration might be triggered by a first sale after 1967 of land which had been acquired up to 100 years beforehand under earlier acquisition legislation. These anomalies were removed in 2006.
In 1970 all land in Meath, Carlow and Laois was designated as subject to compulsory registration on its next sale. This was expanded to include Longford, Roscommon, and Westmeath in April 2006. Clare, Kilkenny, Louth, Sligo, Wexford and Wicklow followed on 1st October 2008.
Cavan, Donegal, Galway, Kerry, Kildare, Leitrim, Limerick, Mayo, Monaghan, North and South Tipperary Offaly, Limerick and Waterford were subject to compulsory registration on 1st January 2010. Finally, Dublin and Cork were made subject to compulsory registration on 1st June 2011.
The obligation to register compulsory in the Land Registry applies to the sale of the property, a lease for over 21 years or such other transfers or dealings as may be specified.
When land is subject to compulsory registration, the application for first registration must be made within six months of sale. In practice, it is possible to apply later.
Scope and Limits of Registration
For the most part, the register is conclusive evidence of its content. However, it may be rectified on the basis that it has been affected by fraud or mistake. The registry itself may correct administrative errors and slips.
Certain rights affect registered titles without registration. See the separate section on so-called Section 72 burdens.
The registry is not conclusive as to the extent of the property and boundaries. However, in most cases, the register is accurate, allowing up to a 10% tolerance.
The principle of constructive notice, which applies to unregistered Registry of Deeds title, that a purchaser buys subject to such rights as he would discover on making the usual or reasonable, does not apply to a registered title. Registerable rights do not affect land unless registered. A purchaser for valuable consideration purchase, subject only to such unregistered rights, which affect registered title without registration.
The Land Registry is not necessarily a conclusive statement of the current ownership of land. It may be out of date because the registered owner has died. The registered owner may have executed a transfer which has not yet been registered.
Sometimes it happens that the Land Registry is not updated through several generations, where the registered owner and, in some cases, his successors have died, while their respective successors have taken or remained in possession. It may be necessary to obtain a grant of representation to the estate of the last surviving registered owner and to show a sequence of entitlement down to the present day, to update the register.
State Guarantee
Where an error has occurred in the Land Registry by way of misstatement or misdescription, the Land Registry may, with the consent of all persons concerned, rectify the error. If it can be rectified without loss, the Registry may rectify the error after giving such notices as this may be prescribed. In other cases, the court may rectify the error if it can be done without injustice to any person.
Compensation is payable to a person who has suffered loss by reason of an error that has arisen in the Land Registry. This is a significant limitation on the State guarantee of title.
Absolute Title
There are three principal classes of ownership in the Land Registry. Absolute title is the highest class. It is by far the most common.
Upon registration of a person with an absolute title, the interest in the land concerned, together with all easements rights and privileges attaching to it, vest in the person concerned.
The folio shows whether co-owners are registered as joint owners or as tenants in common. It is possible for a person to be a legal co-owner but the an equitable tenant-in-common.
A person may be registered as the owner but may be a trustee. The Land Registry does not look at equitable rights but legal rights. Therefore the person named as the registered owner must hold the land for the benefit of the third party.
Qualified & Good Leasehold
A qualified title is one subject to certain limitations or third-party rights, which affect it at the time of first registration. In this case, the Land Registry register the title but allow for the possibility that some other third party’s rights may be asserted and limit and defeat the registered title.
In the case of good leasehold title, the Land Registry verify the title or ownership of the lessee’s right under the lease. It does not investigate the lessor’s title.
Possessory Title
A person may apply for registration of unregistered title land or registered land by showing that he has acquired ownership by adverse possession. In this case, the applicant must set out the facts and circumstances by which he claims to have acquired the title concerned.
The registrar will generally serve notices on persons who appear to be affected, not least the registered owner. When the Land Registry is satisfied that possessory title has been obtained, it may register a new title with a possessory title. Where the facts or claim is contested, the Land Registry is likely to refer the matter to court.
A registered title may be the subject of an application or potential application for registered adverse possession registration.
Conversion
A possessory title is a weaker class of title than an absolute title, as it is subject to certain qualifications and risks inherent in the acquisition of title by possession.
In the case of qualified, possessory and good leasehold title, it is theoretically possible for a third party to assert an adverse claim which undermines the title. For this reason, it may not be acceptable on a sale as a sufficient class of title.
Procedures exist in Land Registry for the conversion of titles which have been held for a long number of years under one of the above classifications. Persons may apply to a better category of title after a prescribed period of time has passed without adverse third-party rights being asserted.
Transfer
The transfer of land is undertaken by way of a deed in a form prescribed by the Land Registry rules. This document is executed as a deed and is commonly called a transfer.
Upon completion of a sale or equivalent transaction, the transfer is stamped, and the stamp certificate and transfer are lodged in the Land Registry. The prescribed Land Registry fees must be paid. The register is written up, on completion of registration, giving effect to the transfer deed, which is retained in the Land Registry.
A purchaser for value takes the title subject only to matters which may be rectified by reason of fraud or mistakes. This is unlike the case with an unregistered title, where the purchaser is deemed to be bound by rights and interests of which he may become aware if he made the usual investigations.
In the case of registered title, only actual “fraud” would serve to affect the rights of a buyer.
Trusts
A trustee is generally registered as the legal owner. The Land Registry does not recognise trusts.
It is good practice to place a caution or an inhibition on the folio restricting transfers by the trustee without notice to specified parties, generally the beneficiaries or somebody looking after their interests. This gives the opportunity to assert the trust, thereby mitigating the risk that the trustee registered owner may deal with the land in breach of trust.
The 2009 Legislation has facilitated the sale of land where there are two trustees. A transfer by two trustees will take precedence, even over the rights of known equitable interests. It does not take precedence over certain rights, which are protected without registration.
Overriding Interests and Rights
Certain classes of rights are impractical to register. They affect registered titles irrespective of whether they or not they are registered. The most common forms of such rights are set out below:
- tenancies and leases for a term of less than 21 years;
- the rights of every person in actual occupation or in receipt of the rents; This requires that a buyer must always inspect the property itself, in order to ascertain and investigate rights of persons in occupation;
- certain land improvement and drainage charges;
- public rights;
- easements and rights other than those created by deed,
- rights acquired by long use which have not yet been registered.
- a person who has the right to have the register corrected
- the rights of persons excepted where the title is registered with possessory, qualified or good leasehold title;
- certain perpetual rents under free farm grants/leases for ever;
- rights of persons in the course of acquiring land by adverse possession
Persons in Possession
The protection of the rights of persons in possession protects those, for example, those who occupy the property in succession to the registered owner on his death or on sale, but who have not yet registered their title. It also protects persons acquiring title or who have acquired title by (squatting) adverse possession.
It protects the rights of persons who have equitable or beneficiary interests or rights under trusts. It may protect spouses and others in occupation who are entitled to an interest under a resulting trust by reason of having made contributions to the purchase price.
The requirement that a person occupies the property does not necessarily mean that he must be physically present. It may suffice if he has a presence and an intention to possess such as to be apparent to a person making enquiries. Persons whose occupation may be discovered by appropriate enquiries may be in sufficient occupation for this purpose.
Interests and Rights Requiring Registration
Certain rights affecting land must be registered in order legally to bind it. They include
- charges/mortgages;
- certain equivalent financial types of charges;
- leases for a period in excess of 21 years;
- leases for shorter periods where the lessee is not in possession;
- judgment mortgages;
- court orders;
- easements and rights created by deed or grant
- covenants and conditions affecting and restricting land.
It is possible for a person who has obtained a judgment to register it as a charge against the land. A judgment mortgage does not hold good against prior unregistered transferees and mortgagees for value.
A person who has agreed to grant a mortgage under a loan offer which is not yet been registered will retain priority over a later judgment mortgagee, which takes it subject to all beneficial and equitable interests.
Protection by Note on Register
A range of interests and rights which cannot be protected by registration as such may be protected by registration of a protective caution or inhibition.
A caution is easier to register and is less restrictive. A caution prevents dealing with the land without notice to the person registering it. The purpose is to give the person registering it a chance to assert his rights. If the person fails to assert the right, the caution will be cancelled.
An inhibition is harder to obtain and may require a court order. The register may grant an inhibition under certain circumstances. An inhibition prevents land from being dealt with without the consent of the person who is the beneficiary or holder.
A caution or inhibition is the appropriate mechanism to protect trusts and equitable rights.
A transferee for the value of registered land takes subject to the registered and overriding interests; Section 72 burden. A transferee not for value, e.g. by way of a gift, takes subject to registered and unregistered rights.
A judgment mortgage is not given for valuable consideration. Therefore a judgment mortgagee is subject to existing unregistered rights.
There is a procedure by which a right claimed in litigation over land may be registered in the High Court or Circuit Court as affecting the land. Once a lis pendens (pending court case) is registered a buyer takes subject to the outcome of the litigation.