Registration of Deeds

Deeds and Title Registration

The registration of deeds system is the older system of land registration. It does not register the ownership of title. It registers the relative priority of deeds and documents.

The registration of deed system is being phased out. Since June 2011, all counties in the Republic of Ireland have been subject to compulsory title registration in the Land Registry.

Compulsory registration in the Land Registry was applied to three Counties in 1970, Meath, Laois and Carlow. In the period 2006 to 2011, compulsory registration was extended to the remaining Irish counties. The last two Counties, Dublin and Cork became subject to compulsory registration in June 2011.

On the first sale, after compulsory registration applies, the buyer must make an application for first registration in the Land Registry. The buyer must prove his Registry of Deeds” based title to the Land Registry. Where the sale price is below €1,000,000, the buyer’s solicitor’s certificate of title may be given in place of proof of title.

Origin

The registration of deed system was introduced in 1707. The basic legislation remained the same for 299 years until the Registration of Deeds and Title Act 2006. This legislation placed the Land Registry and Registry of Deeds under a single Property Registration Authority. Both registries and the principles under which they operate remain legally distinct, despite the single administrative authority.

The registration of deed system was originally enacted in Ireland, as part of the penal laws. Registration of deeds was introduced for a period in some parts of England but the last of the English deeds registries have been closed. England and Wales have been subject to compulsory title registration in all areas since 1990. All Counties in Northern Ireland has been subject to compulsory registration since 2003.

Registration of deeds is central land ownership in most of the United States. A broadly similar system exists in many Continental European countries. The registration is undertaken in the local County. Many of the records have fallen into arrears and this, combined with difficulties of searching, have meant that in many States title insurance has plugged the gaps in the system.

Property Registration Authority

The Registration of Deeds and Title Act 2006 established the Property Registration Authority. Its controls and manages the Land Registry and the Registry of Deeds and to promotes and extends the registration of ownership of land.

It provided for a clear statutory basis for the registration of deeds and title on computer in the Registry of Deeds and the Land Registry respectively, and for a digital mapping system, with a view to preparing the way for an electronic conveyancing system .

The 2006 Act repealed the older Registry of Deeds statutes— the earliest of which dated back to 1707 and replaced them with provisions more suited to modern conditions.

Registration

The registration of a deed itself formerly involved filing a so-called memorial of the deed. This was a summary of the key parts. It was lodged and compared with the original deed. Provided the requirements of the legislation (which were quite strict) were complied with, the deed was registered. The original deed was stamped with the date and time of registration and the relevant entry was made in the register of grantors.

Since the 2006 reforms, a simpler form of registration application has been used.After the 2006 Act registration is allocated a serial number. Generally priority is accorded to registered documents based on the serial number allocated . A deed which is not registered is deemed void against a registered deed affecting
the land concerned.

Modernisation

The definition of ‘deed’ for registration purposes includes information in electronic or non-legible form which is capable of conversion to legible form. This permits the storage of information and records in non-legible forms.

The Authority maintains a a register of deeds. The form of this register is prescribed in general rules and may be in an electronic or other form capable of conversion into a permanent legible form.

After the 2006 Act registration is allocated a serial number. Generally priority is accorded to registered documents based on the serial number allocated. A deed which is not registered is deemed void against a registered deed affecting the land concerned.

Principle of Registration

The basic principle of Registry of Deeds title, is that the first registered deed made by the grantor to a buyer, mortgagee or another transferee, has priority over any other deed,  made by him, whether beforehand or afterwards.A deed which is not registered is deemed void against a registered deed affecting the land concerned.

Where two inconsistent deeds are granted by the same person, the first registered deed usually has priority. This principle of priority for the first registered transferee is subject to certain limitations, which are mentioned below.

The Registry of Deeds in Ireland operates a register of grantors (transferors). It lists in books, transfers by persons of the relevant name in a period. What is searched is the index of grantors in respect of a particular name, from the date of the deed concerned up to the date upon which that person transferred his or her rights under a registered deed. By searching between these dates, it is possible to verify whether any inconsistent deeds have been granted during the period.

Tracing Title

The Registry of Deeds title system is premised on deduction or “tracing” of the title. A valid deed of a sufficient age is required. Formerly, a deed of 40 or 20 years vintage was required. This period  was  reduced to 15 years in 2010.

Registry of Deeds title is sometimes (confusingly) called “unregistered” conveyancing. This refers to the fact that the title is not registered in the Land Registry.When a deed of at least the relevant vintage is available, the transfers down to the current owner (if any) from the date of this deed are vouched by searching in the Registry of Deeds. The subsequent owner can rely on registration as sufficient proof of the priority of each deed in the chain of ownership.

In many US States, where a Registry of Deeds system operates, there is both a register of transfers by grantors and receipts of title by grantees. In this case, double assurance is available, by searching the index of names from the first deed forward to the current owner’s deed and then searching the register of grantees back to the first deed.

Searches

Deed registers consisted, until the until the 2006 reforms, of books of entries of grantors, indexed by surname. After the 2006 Act registration is allocated a serial number. Generally priority is accorded to registered documents based on the serial number allocated.

Private Law Searchers search the index of names for the requisite names in respect of the periods and properties and make a list of entries or “acts” found as a  result of their search. It is then verified whether the acts correspond with the chain of deeds.

More recently the Property Registration Authority has opened an online searching facility. Land Da virect landdirect.ie maintains records online. However, law searchers searches are usually undertaken as the online system has limitations being based on scanning of  documents many in manuscript form.

It is possible to request the Registry of Deeds itself to undertake a so-called negative or common search which has an official guarantee of authenticity. However, such searches take a period of time so that most searches were and are commonly undertaken by law searchers. These searches are now called “official searches” under the 2006 legislation.

Limitations

Not all documents which transfer or create rights in land are capable of being registered. The registry of deed system of priority only relates to deeds which are capable of registration. Wills, grant of probates and leases for less than 21 years cannot be registered.

The effect of this limitation is that it is not necessarily possible to identify the ownership of “Registry of Deeds” land by examination of the register. The Register only contains an index of transfers, grants and mortgages. Therefore, the only way in which the ownership of own registered land by the current owner can be traced, if he has granted a mortgage and it has been registered. If the person has acquired a land without a mortgage, his name will not appear because the name of the transferor only, is searchable.

Prior to December 2009, it was possible to create a mortgage of unregistered title land by depositing the original deeds at the bank. Unless there was a contemporaneous memorandum, recording the terms of the mortgage, there was nothing capable of being registered. Therefore, such a mortgage would have priority although not registered.

Such a mortgage was and is as (as they may feel exist) completely dependent upon retention of the original title deed. Subsequent purchasers are deemed aware of a mortgage by deposit of the deeds if the original deeds were not produced. This gives sufficient protection without registration, as “unregistered” conveyancing practice requires the production or delivery of the deeds.

Leases for a term of less than 21 years where the lessee is in actual possession of the are not registrable. A buyer, mortgagee or other person who acquires rights in land must inspect the land concerned. A buyer is always bound by matters which come to his attention are obvious from inspection. He is fixed with notice of matters he would become aware of, on inspection, irrespective of whether he does or does not inspect.

Priority

Where two documents can be registered, the first registered document usually takes priority. This is so, even if it is executed or signed second. However, unlike the land registration system, this is not an absolute principle. The courts allow exceptions to the principle.

If a buyer is actually aware of the inconsistent earlier deed, he cannot obtain good title from the holder of the first registered second deed. The courts would regard this as fraudulent and inequitable. This principle only applies where the person has actual notice of the prior own registered or later registered right at the time he takes his conveyance.

If the person’s legal representative obtains actual notice of the earlier deed, this is imputed to the buyer. In contrast to other areas of conveyancing, so-called constructive notice is not enough. Constructive notice is where facts exist from which other facts can be inferred or found out after the usual investigations are made. It is effectively deemed notice, where the relevant facts should have been discovered. There may be a thin line between actual notice and constructive notice.

The principle of priority is only available for a purchaser who gives valuable consideration. This means paying a price or giving something substantial in money’s worth. If the transferee receives the property as a gift, he will not take priority over an earlier buyer who has not yet registered.

Errors and False Deeds

Where any error occurs in registration—

• the Authority may, with the consent of the applicant for registration and of such other persons as may appear to be interested, rectify the error on such terms as may be agreed to in writing by the parties,
• the Authority may, if of opinion that the error can be rectified without loss to any person, rectify the error after giving such notices as may be prescribed,
• the Circuit Court, if of opinion that the error can be rectified without injustice to any person, may order the error to be rectified on such terms as to costs or otherwise as it thinks just.

Any person who procures or attempts to procure the registration of any deed knowing it to be false in any material particular, or knowing any signature on it to be false, is guilty of an offence. He or she is liable on summary conviction, to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or both, and on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.

Other Records

The Authority shall maintain such records relating to registered deeds as may be prescribed. The information contained in any documentation delivered to the Authority may be recorded and kept in an electronic or other non-legible form which is capable of being converted into a permanent legible form.

Reference in any enactment to the issue of any documentation by the Authority includes a reference to the communication of the information concerned by transmission in any prescribed electronic or other non-legible form. Where any such documentation is required to be signed or certified, it may be authenticated in any other prescribed manner.

Searches.

Searches of records may be made in such manner and by such means as may be determined by the Authority.

Any person may, during such hours, in such manner and subject to such conditions as may be determined by the Authority, inspect, search, copy, examine and make extracts from, or take short notes of, such records maintained as may be prescribed.

The Authority maintains landdirect.ie in electronic form.

Evidence in proceedings.

A document purporting to be a copy or reproduction of any entry in the register or of any other record maintained, including any document produced by the conversion into legible form of information kept in electronic or other non-legible form, and
to be certified by a member of the staff of the Authority to be such a copy or reproduction, is admissible in any proceedings, without further proof, as evidence of the matters mentioned therein.

Closing of Index

Formerly, the Registry of Deed maintained a register of lands. Entries of each deed for each Barony and parish was entered. These registers were closed in 1947 and were not maintained after that date.

The Index of Lands established by the Registry of Deeds (Ireland) Act 1832 is deemed to have been closed on 31 December 1946.

The Day Book, Abstract Book, Duplicate Abstract Book, Transcript Book and Duplicate Copy of Index of Names are deemed to have been closed during the period or periods during which any of them was not being kept in accordance with the Registry of Deeds (Ireland) Act 1832.

General rules.

The Registration of Deeds and Title Rules Committee may, with the agreement of the Minister, make general rules for the registration of deeds.This make provision in those rules in relation to

• the form, content and indexing of the register and records;
• the forms of application for registration of deeds;
• the procedures to be observed in connection with registration, including the allocation of serial numbers to applications for registration and their cancellation where the applications are refused;
  the form and manner in which entries in the register are to be made, modified or cancelled;
• any other matter referred to in the Act.