Registered titles are transferred and otherwise altered by way of a dealing. A ‘dealing’ is an application to the Land Registry to change the registered title, for example, a transfer on sale or transmission vesting the title ins a successor on death. or some other.
The date of the application for registration determines its priority relative to other competing applications. If the dealing is rejected, it loses priority and must be re-lodged in order to be completed. If it is queried and the query is satisfied in time, it will retain its priority.
The dealing must be in the prescribed form. It must comply with the legal requirements applicable to the subject matter of the application. A dealing for registration must be accompanied by the requisite fee prescribed by law. Fees are prescribed by Ministerial order made under the Registration of Title Act.
The Land Registry is entitled to act on the basis that deeds and documents lodged with it, which appear to be properly executed, are so executed. Where documents are executed by a person who purports to be officers of the company and the corporate seal is affixed, the Registrar is entitled to assume it is duly executed.
A company must produce a copy of a Certificate of Registration when it first becomes applies to become the owner of registered property. Where the company has been incorporated outside the State, the equivalent foreign certificate must be produced. On subsequent transfers, the existence of the company will be recognised and will not generally be necessary to re-lodge the certificate of registration.
Property may be transferred by a number of means other than by transfer deed. If an owner dies, his personal representative is entitled to deal with the property. His right to do so is vouched by a grant of probate or letters of administration, which is an official court document recognising the person’s entitlement.
They authorize the personal representative to vest the property in accordance with the entitlements of the deceased owner’s successors. Alternatively, the property may be vested in trustees or sold so as to provide monies for division.
PR Power to Deal
Under the Succession Act, the personal representative of a deceased registered owner has the power to deal with the property. He will usually transfer the property on sale or vest the property by assent in the persons entitled, under the relevant will or on intestacy.
An official copy of the grant of representation (probate or letters of administration) in the estate of the deceased registered owner must be lodged with the transfer deed or assent in other to prove the personal representative’s entitlement to deal with the property.
The Land Registry recognise transfers by way of sale and assents vesting the property. For the most part, the Land Registry does not investigate the manner in which the personal representative implements the entitlement of the beneficiaries under the relevant will or intestacy.
Transfers arising on death are referred to as transmissions. They differ from sales by personal representatives which are undertaken by way of a deed of transfer. Since 1959, all property passes to the personal representative on death where there is a will and on issues of letters of administration in the case of intestacy.
Prior to 1959, freehold unregistered title property passed directly to the heir at law. The principle that title pass to the personal representative has been applied in respect of registered title since the commencement of the original legislation in 1892.
The Succession Act came into force on 1 January 1967 in tandem with the modern Registration of Title Act. It abolished the older rules on the passing of property ownership on death. The personal representative is obliged to administer the estate in accordance with the law.
Transfers by PRs
The personal representative is recognised as the sole person entitled to deal with the land and vested in the relevant parties. The Registrar does not read or interpret the will in accordance with the principle that it does not examine trusts and beneficial interests.
The personal representative makes an application an assent vesting the property in the persons entitled. The Registrar is not entitled to enquire why an assent is or is not made and cannot look behind it.
An assent is the written document vesting registered title in the person who is entitled upon the death of the deceased registered owner. It does not require stamp duty. Strictly it need not be in the form of a deed.
In each case, the land registry rules prescribe a form of application and assent relative to the circumstances. No different forms for intestacies, wills or chattels.
Personal representatives may be registered as owners with inhibitions, in order to protect the interests of beneficiaries. The inhibition may inhibit dealings with the land other than in due course of administration of the estate.
This is similar to the manner in which trusts are protected. In some cases, a person named as the personal representative will become a trust under a longer term, under an arrangement provided for by the will. In this case, a new inhibition may be entered on completion of administration in order to protect the beneficiaries.
In litigation or disputes, the court may authorise a court officer to transfer property to reflect the entitlements of the parties as declared in court proceedings. Generally, the officer will only be appointed if the registered owner refuses to comply with the court order.
Trusts and Settlements
Trusts are not registered expressly on the registrar. However, they may be protected by caution 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.
A transfer may be made by way of the creation of a trust or settlement. The property may be transferred to trustees who become registered owners. Notices and inhibitions may be entered in order to reduce the risk of the trustee dealing with the land in breach of the terms of the trust or settlement.
A transfer by a charge (mortgagee) under a registered charge is equivalent to a transfer by the registered owner. The sale vests the property in the purchaser, free from lower ranking burdens.
There is a special summary procedure by by which the charge may apply for possession of a charged property, once the mortgage monies have become due.
See the sections on mortgages and security in relaton to Land Registgry Charges.
There are cases where a property is transferred automatically by law. For example when a person becomes bankrupt, his assets are transferred to the Official Assignee, a court officer. A vesting certificate issues from the court offices transferring all Land Registry property to the Official Assignee.
When a liquidator is appointed there is a change in control of the company itself so that no transfer is necessary. A receiver may register when a floating charge attaches or crystallises on enforcement.
On bankruptcy, the bankrupt person’s assets vest by operation of law in the Official Assignee. An inhibition may issue on a petition for bankruptcy, to prevent disposition of the property pending adjudication of the petition. On production of evidence of adjudication of bankruptcy, the lands may be registered as vested in the Official Assignee.
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