State Title Guarantee
Registration of Title Act
Compensation for error, forgery or fraud in relation to registration.
120.—(1) This section applies to loss sustained by any person by reason of—
(a) the rectification F154[…] of any such error in registration as may be rectified under subsection (1) of section 32, or
(b) any error originating in the Land Registry (whether of misstatement, misdescription, omission or otherwise, and whether in a register or in a registry map) which occurs in registration and is not rectified under the said subsection (1), or
(c) any entry in or omission from a register or registry map caused or obtained by forgery or fraud, or
(d) any error in an official search carried out by F155[the Authority] or any of F156[its] officers, or
(e) the inaccuracy of any office copy of or extract from a register or registry map, or of any office copy of or extract from any document or plan filed in the Land Registry.
(2) Where any person sustains loss to which this section applies, and the loss is not caused or substantially contributed to by the act, neglect or default of himself or his agent, that person and also any person deriving title from him shall be entitled to compensation for that loss in accordance with this section.
(3) In the case of rectification of an error F154[…] under subsection (1) of section 32, the costs and expenses incurred by the applicant in obtaining the rectification shall be deemed to be a loss to which this section applies.
(4) All compensation payable under this section shall be paid out of moneys provided by the Oireachtas.
(5) The following provisions shall apply to every claim for compensation under this section:
(a) the claim shall be made in the prescribed manner to F155[the Authority] and notice thereof shall be given to the Minister for Finance;
F157[(b) if the claim is not settled, the claimant or the Minister for Finance may apply to the court to determine the amount (if any) of compensation payable;]
(c) no claim shall be entertained by F155[the Authority] after the expiration of a period of six years from the time when the right to compensation accrued unless, on the expiration of such period the person entitled to claim was under disability, in which case the claim shall not be entertained after the expiration of two years from the termination of the disability, but the determination of F155[the Authority] to refuse or allow a claim under this paragraph shall be subject to appeal to the court;
(d) for the purposes of paragraph (c), the right to compensation shall be deemed to have accrued—
(i) in regard to any estate or interest in possession, on the date of the registration which occasioned the loss in respect of which compensation is claimed, or
(ii) in regard to any estate or interest in remainder or reversion, on the date when such estate or interest would, but for such registration as aforesaid, have fallen into possession;
(e) the compensation shall include the costs incurred by the claimant in establishing his claim.
(6) Where compensation is paid under this section to any person—
(a) the compensation (other than costs) shall be applicable in discharge of any incumbrances affecting the estate or interest of that person in the land or charge in respect of which the compensation is payable;
(b) the Minister for Finance shall have the same right to recover the amount of such compensation from any person who caused or derived advantage from the loss as the person who suffered the loss would have had if the loss were an injury caused to him by the first mentioned person.
Cases
Registration of Title Act 1964 &
Application of Sean Leonard for Compensation
[1982] 12 JIC 1501
Jurisdiction: Ireland
Court: High Court (Ireland)
The Motion on the part of the Minister for Finance pursuant to Notice of Motion dated the 17th day of July 1981 by way of appeal from the judgment and Order of the High Court (Land Registry) (Mr. Justice D’Arcy) dated the 29th day of June 1981 declaring that the Applicant Sean Leonard is entitled to £126,500–00 compensation under Section 120 of the Registration of Title Act 1964and for an Order setting aside the said Judgment and Order and directing a new trial in lieu thereof on the grounds set forth in the said Notice of Appeal coming on for hearing before this Court on the 14th day of December 1982 and this day and upon reading the said Notice of Appeal the said Order of the High Court and the Report of the said learned Judge and upon hearing Counsel for the Minister for Finance and Counsel for Sean Leonard
IT IS ORDERED AND ADJUDGED that this Appeal do stand dismissed and that the said Order of the High Court do stand affirmed accordingly save that the interest rate referred to therein (to be paid on the balance of compensation awarded therein) be at the rate of 11 per cent per annum in lieu of the rate specified therein
And the Court doth declare Sean Leonard entitled to his costs of this Appeal when taxed and ascertained
This matter came before me by way of an appeal by Mr. Leonard, the appellant, from the adjudication and order of the Deputy Registrar of Titles dated the 10th December, 1980 for his claim for compensation under the said section.
Mr. Sutton S.C. and Mr. Michael McMahon Barrister-at-Law appeared for the appellant, and Mr. Murphy Barrister-at-Law appeared for the Minister for Finance.
The affidavits filed by the appellant Mr. Leonard were opened and in addition oral evidence was given, with permission, by the appellant, Cyril De Courcy, and Lionel Sexton. The Land Registry admit they made a mistake. Two points arise. Firstly whether the appellant is statute barred, and secondly the amount, if any of compensation.
The matter may be briefly stated. The lands to which this claim relates consist of 6 acres 1 rood and 28 perches (or-thereabouts) situate on the outskirts of Limerick City. It is prime building land now. The lands in question, were originally part of 14 acres and 20 perches which were the subject matter of Folio 20518 County of Limerick.
On the 12th October, 1966 the appellant was registered as owner of all the lands (14 acres and 20 perches) the subject matter of 20518 County Limerick.
On the 10th November, 1969 the appellant transferred 7 acres 3 roods and5 perches part of the Folio 20518, to Saint James’s Park Housing Society. It is to be noted that the consideration here was £8,200. The lands and the neighbouring lands, the subject matter of this application, had not by that date acquired their value as building lands. Saint James’s Park Housing Society was then mistakenly registered as the owner of the entire (not part of the lands the subject matter of 20518, and the lands then became the subject matter of Folio 26746.
On the 17th July, 1969, Saint James’s Park Housing Society transferred portion of the lands to Portland Estates Limited, and on the 9th December, 1974 Saint James’s Park Building Society transferred the remaining 6 acres 1 rood and 32 perches to Portland Estates Limited. The lands then became the subject matter of Folio 4080F.
On the 12th January, 1975 Portland Estates were registered as owners of 4080F County Limerick.
The Land Registry admitted that they made a mistake and whilst they should have only transferred and registered part of the original Folio 20518, they transferred the whole lot and thereby the appellant was deprived of 6 acres 1 rood and 38 perches.
The appellant at all times only intended to transfer 7 acres 3 roods and5 perches which he did by transfer on the 10th November, 1969. Having done that he assumed that he was still the owner of the balance namely approximately 6 acres, of which he remained in actual possession, at all material times, up to Shrove Tuesday 1976
The appellant is a butcher by trade and he used the lands solely as a lairage. He swore that he only visited the lands infrequently and then principally in the winter time, and that he would not be seen there at all in the summer time. I accepted the appellant’s evidence. He considered and thought and had every reason for believing that he was the owner of approximately 6 acres, being the balance of his original purchase of 14 acres less the amount which he had transferred in 1969 to Saint James’s Park Housing Society. This the appellant believed up to the time when he was ordered off the lands on Shrove Tuesday 1976. He then immediately consulted a solicitor.
I adopt the note of the evidence which has been taken by the Registrar and approve of same.
The Minister admits that the Land Registry had made a mistake but urged that he was not obliged to pay compensation for three reasons. Firstly, that the appellant had an alternative remedy. The only alternative remedy suggested to me was to take an action against Portland Estates Limited for ejectment and trespass. Portland Estates Limited are in the very happy position of being registered owners, on a conveyance for valuable consideration, without notice. I did not think the law would require a person to embark on that sort of litigation before he could claim compensation. I fail to see how he could possibly succeed.
Secondly the Minister urged that the Limerick Corporation had served compulsory acquisition notices on the appellant with regard to the land and he had done nothing about them. There is no suggestion that the Limerick Corporation were agents for the Land Registry. Nevertheless it was urged that the Minister was entitled to set up an estoppel preventing the appellant from pursuing his claim by reason of the fact that he had ignored some notice from the Limerick Corporation. It was urged that his refusal to take action as regards the notice was tantamount to an abandonment of his claim and lands. The nature of the notice was not proved before me and it could have either been a compulsory purchase order or a Sanitary Order. I disallowed it.
Counsel for the Minister urged that the appellant’s claim was statute barred. This caused more difficulty.
It was agreed before me that the relevant period is six years. From the time the Right to compensation accrues Registration of Title Act 1964Sect. 120 5(c). The question is when does the period begin to run. If it began to run, when the original mistake (unknown to the appellant and not discoverable by him) had been made by the registration of Saint James’s Park Housing Society as the owners of the entire holding, the period would have commenced to run on the 10th January, 1967. It was agreed before me that the period was six years. Mr. Michael McMahon for the appellant urged that as long as Saint James’s Park Housing Society were in possession, the appellant’s rights were safeguarded. They were not innocent purchasers for valuable consideration without notice. Mr. McMahon urged that it was a transfer by Saint James’s Park Housing Society Limited to Portland Estates (Limerick) Limited that caused the injury and damage. This occurred on the 9th December, 1974. If this latter date be the correct one then the appellant was not statute barred.
With some doubt and hesitation I accepted Mr. McMahon’s argument. The following authorities were referred to:- Re the Application of Patrick Ryan 1945 Irish Reports 359 In re Patterson 3 N.I.R. (a decision of Mr. Justice Madden).
Having first determined the liability, the question of amount was argued as a separate issue. Counsel for the appellant urged that the current date was the proper one whereas Counsel for the Minister said that the value of the lands in 1976 was the relevant one. I held for the current date. I did this on the basis that under the Land Acts, and the Housing Acts and the Landlord and Tenant Acts current dates are taken. In times such as the present this works both ways on claimants.
There was little difference in the evidence of the appellant’s valuer and that of the Minister. Mr. De Courcy for the appellant valued the lands at £20,000 per acre as of present date, giving a value of £125,000 for 6½ acres.
He gave the value in 1976 as £6,000 per acre and in 1977 as £9,000 per acre.
Mr. Sexton, Auctioneer, Limerick for the Minister valued the lands presently at £20,000 per acre.
There was very little between the valuers. There was a claim that the appellant has been ousted from the use of the 6/12 acres since 1976 to date inclusive. Mr. De Courcy values the letting value of the lands in 1976 at £200, 1977 at £250, 1978 at £300, 1979 at £350, 1980 at £300 and part of 1981 at £100, making a total of £1,500.
Acting on these figures I gave a decree for £126,500.
The State (Philpott) v Registrar of Titles
[1986] ILRM 499, [1985] 7 JIC 2901
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Gannon J.
Judgment of Gannon J. delivered the 29th day of July, 1985
This is an application to make absolute notwithstanding cause shown a Conditional Order of Certiorari granted on the 6th of May, 1985 directed to the Registrar of Titles in the Land Registry. The prosecutor was on the 28th July, 1983 registered full owner with possessory title of 4.505 hectares in the townland of Glenaknockane, Barony of Duhallow, Co. Cork in folio 29970F of the Register of Freeholders Co. Cork. On the 19th of February, 1985, the respondent, the Registrar of Titles, entered on the said folio an inhibition against all dealings with these lands without the approval of the respondent. Prior thereto the prosecutor had entered into a contract on the 23rd of November, 1984 for the sale with other lands of the lands on this folio. The sale had not been closed on the 7th of December, 1984 which was the closing date prescribed in the contract and completion was still pending on the 19th of February, 1985. The prosecutor had had no notice of the intended entry of the inhibition on the folio, the entry whereof is in purported exercise of a power conferred on the respondent pursuant to section 121 of the Registration of Title Act 1964. The first notification the prosecutor received of the exercise of this power by the respondent was a letter dated the 25th of February, 1985 from the Examiner of Titles in the Land Registry with which was enclosed a letter dated the 28th of September, 1984. Although not expressed to be from the Registrar the letter appears to have been sent in compliance with subsection (3) of section 121 of the 1964 Act. The letter is addressed to the solicitors for the prosecutor with a heading referring to the folio and lands of the prosecutor and is signed by the Examiner of Titles. It states as follows:-
“Dear Sirs,”
We had correspondence from Messrs. David J. O’Meara & Sons of Bank Place, Mallow, Co. Cork on behalf of Mr. Bartholomew Leahy of Knock, Lyre, Banteer and John Scanlon and John Sheehan of Glenaknockane, Lyre, Banteer claiming rights. We enclose herewith a copy of our reply of the 28th September, 1984.
It has been decided to enter an inhibition under section 121 of the Registration of Title Act 1964in the event of there being an error and claim under this section. The inhibition reads “all dealings are inhibited except with the approval of the Registrar of Titles”.
A copy of this letter has been sent to the registered owner, Christopher Philpott.”
The enclosure with that letter was a letter from the Examiner of Titles to Messrs. David J. O’Meara & Sons, Solicitors, Bank Place, Mallow, Co. Cork with a reference to folio 29970E County Cork, registered owner Christopher Philpott of Glouncome, Lyre, Banteer, Co. Cork your clients Bartholomew Leahy of Knock, Lyre, Banteer and John Scanlon and John Sheehan of Glenaknockane, Lyre. It said:-
“Dear Sirs,”
Your letter of the 17th September, 1984 addressed to Richard Sherlock of this office has been passed to me.
On the basis of the effect of registration with a possessory title as set out in section 38 (1) of the Registration of Title Act 1964the registration of Christopher Philpott is in order.
Any person aggrieved by the decision may appeal to the Court under section 19 (1) of the said Act. Alternatively, an application may be made to convert the title under section 50 (1) of the said Registration of Title Act and rule 38 (3) of the Land Registration Rules 1972. If the applicants application is based on possession form 5 of the said rules should be considered, in a similar manner to an application for first registration based on possession.
You should also see sections 97 and 98 of the Registration of Title Act 1964. Your clients may have rights which can be protected under these sections.
Your clients rights may also be protected under paragraphs (h), (j) or (p) of subsection 1 of section 72 of the said Act.”
It is signed by the Examiner of Titles.
On receipt of notification of the entry of the inhibition the prosecutor’s solicitors enquired from the Examiner of Titles if the purchasers from the prosecutor could be registered as owner on completion of the sale. The reply from the Examiner of Titles is dated the 27th of March, 1985 and is as follows:-
“Dear Sirs,”
We are in receipt of your letter of the 28th February 1985 which has only recently reached the writer.
The inhibition may not be removed until the matters arising on the title and the registration are rectified and the registration of Patrick and Particia Barry may not be completed.
The registration of Christopher Philpott with a possessory title was made on foot of the affidavit dated the 11th May, 1981 of Christopher Philpott and your letter of reply of the 1st June, 1983. It is now possible that the registered owner is not entitled to the fee simple. An application to convert the title to absolute should be made by the registered owner. All parties will then be notified and their rights clarified if possible.”
It is signed by the Examiner of Titles.
The grounds upon which the Conditional Order of Certiorari was granted on the 6th of May, 1985 are set out in the following four paragraphs in the Order namely:-
2 “1. That the decision or Order of the Registrar of Titles to enter the said inhibition is void and of no effect because the Registrar of Titles failed to adhere to the procedure laid down by the said section in and about his decision to enter the same.
2. That the decision or Order of the Registrar of Titles to enter the said inhibition is void and of no effect because the Registrar of Titles failed to adhere to the procedure laid down by the land registration rules for the entry of such inhibitions.
3. That the said decision or Order of the Registrar of Titles to enter the said inhibition is void and of no effect because the Registrar of Titles, prior to the time when he entered the said inhibition on the register, failed to inform the prosecutor either of the fact that he proposed to enter such an inhibition or the grounds for such entry or to afford to the prosecutor an opportunity to make representations or otherwise to be heard by him in relation to the entry of the said inhibition.
4. That the Registrar failed to exercise his power to enter inhibitions on the register pursuant to section 121 of the Registration of Titles Act 1964in accordance with the requirements of constitutional and natural justice.”
The prosecutor accordingly challenges the determination of the Registrar to place an inhibition on the folio on the grounds that the Registrar did not conform to the requirements of section 121 of the 1964 Act, nor comply with the requirements of the land registration rules for the entry of an inhibition; and further that by failing to give to the prosecutor previous notice and a hearing on the matters upon which the determination was made there was a denial of justice which invalidates the entry on the folio. The respondent shows cause by affidavit which, unfortunately, does not depose to anything that he as Registrar of Titles did or did not do. In his affidavit showing cause the Registrar deposes that the Examiner of Title “in the course of investigating the title sought to be registered on behalf of the prosecutor” was not satisfied about certain matters pertinent to the registration of title. The affidavit discloses that in correspondence between the Examiner of Titles and other parties in September, 1984 unspecified matters were ascertained which indicated that an error may have been made in effecting the registration of the prosecutor’s title. The registration of the prosecutor’s title had been effected in July, 1983. It is evident from the affidavits filed on behalf of both parties that when examining the evidence in support of the application by the prosecutor for registration the Examiner of Titles had no communication with the parties referred to in his letter of the 28th of September, 1984. The affidavits also show that after registration had been completed the Examiner of Titles when replying to enquiries of the parties referred to in his letter of the 28th of September, 1984 did not have any communication with the prosecutor, the then registered owner, with reference to whose registration the enquires apparently were being made.
Section 121 of the Registration of Title Act 1964under which the registrar, the respondent, acted is as follows:-
2 “121 (1) Whenever it appears to the Registrar that an error which may be capable of rectification has been made in registration, the Registrar may enter in the register such inhibition against dealings with the land or the burden affected by such error as he thinks proper for the purpose of protecting the Central Fund against claims for compensation in respect of losses occasioned by registrations made after such error is discovered and before it is rectified.
(2) An inhibition entered in the register under this section shall not affect any registration actually pending in the central office when such inhibition is entered nor prevent the completion of such registration.
(3) Whenever the Registrar enters an inhibition under this section, he shall send notice of such inhibition and of the error because of which it was entered to all persons who appear from the register to be affected by such error and to such other persons (if any) as may be prescribed.”
By Section 3 (1) of the 1964 Act “prescribed” means prescribed by general rules. Section 120 of the 1964 Act provides for the payment of compensation in respect of losses occasioned
(a) by rectification of an error originating in the Land Registry and rectified pursuant to section 32 (1) of the Act,
(b) by an error originating in the Land Registry which was not rectified under that subsection,
(c) by an error of entry in or omission from the register procured by forgery or fraud,
(d) by an error in an official search and
(e) by an error in the Land Registry Office copies of documents.
This section is of importance in cases of first registration founded upon claims based solely upon long continuous adverse possession. Such appears to be the basis for the registration of the prosecutor on Folio 29970F County Cork. The other section of the Act which provides expressly for the entry of an inhibition on the folio is section 98. For the purposes of comparison and guidance on the intendment of the Act it would be advisable to quote that section also which is as follows:
2 “98 (1) The court or, subject to an appeal to the court, the Registrar, on the application of any person interested in any registered land or charge, may, after directing such inquiries (if any) to be made and notices to be given and hearing such persons as the court or Registrar thinks expedient, make an order or, in the case of an application to the Registrar, an entry, inhibiting for a time, or until the occurrence of an event to be named in the order or entry, or except with the consent of or after notice to some specified person, or generally until further order or entry, any dealing with any registered land or registered charge.
(2) The Registrar, on the application of the person who has “obtained an order of the court under the provisions of this section, shall make an entry of the order on the register in the prescribed manner.
(3) The court or Registrar may annex to any such order or entry any terms or conditions they think fit, and may discharge any such order or cancel any such entry, and generally may exercise such powers as the justice of the case requires; but nothing herein contained shall empower the Registrar to discharge an order made by the court.
a (4) (a) Nothing in this section shall authorise any restrictions to be imposed on the powers of a tenant for life, or a person having the powers of a tenant for life, under the Settled Land Acts.
(b) Any entry made under this section may be withdrawn or modified at the instance of all the persons for the time being appearing by the register to be interested therein.”
These are the statutory provisions upon which the prosecutor relies in support of ground 1 of the Conditional Order. In support of ground 2 the prosecutor relies on rules 137 to 145 of the Land Registration Rules of 1972. Other than these rules, which clearly prescribe for the implementation of the provisions of section 98 of the 1964 Act, there are no other rules specifically referable to section 121 of that Act. Although the express purpose of the use of the power conferred by section 121 is to enable the Registrar to protect the common fund its effect is to maintain a position of no change by preventing any effective dealings with the registered land or with ownership of any interest in it until the inhibition has been removed. The section places no obligation upon the Registrar to correct the error nor does it make any provision for the removal of the inhibition.
In a well constructed and carefully prepared argument Mr. McCarthy for the prosecutor submitted that the exercise by the Registrar of the power conferred by section 121 of the 1964 Act requires a determination by the Registrar made upon consideration of facts or matters relative to the administration of the registration of ownership of land. It is a power for the exercise of which the rules or regulations make no express provision and consequently leave the determination in the sole discretion of the Registrar. The rights of the registered owner to transmit his interest or to create a charge upon it are prohibited and are so affected by reason not of the facts or matters considered by the Registrar but by virtue of his determination upon such facts and matters and his consequent exercise of the power conferred by section 121. In support of his contention that the function and power invested in the Registrar by section 121 is in the nature of a judicial act and one which must be exercised in a judicial manner Mr. McCarthy cited the statement of Palles C.B. in Reg. (Wexford County Council) .v. Local Government Board 1902 2 I.R. 249 quoted by O’Byrne J. in the State (Crowley) .v. Irish Land Commission 1951 I.R. 250 at 265. The quotation from the Chief Barron is as follows:
“I have no hesitation in saying that I have always considered, and still consider, the principle of law to be as stated by the Chief Justice”
(here he refers to the observations of May C.J. in Reg.-v- Corporation of Dublin 2 L.R.I. 371 at 376)
“assuming that there is nothing in the statute constituting the particular tribunal or investing it with the particular power which indicates a contrary intention. I have always thought that to erect a tribunal into a “Court” or “jurisdiction” , so as to make its determinations judicial, the essential element is that it should have power, by its determination within jurisdiction, to impose liability or affect rights. By this I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, and so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact. It is otherwise of a ministerial power. If the existence of such a power depend upon a contingency, although it may be necessary for the officer to determine whether the contingency has happened, in order to know whether he shall exercise the power, his determination does not bind. The happening of the contingency may be questioned in an action brought to try the legality of the act done under the alleged exercise of the power. But where the determination binds, although it is based on an erroneous view of the facts or law, then the power authorising it is judicial.”
It was argued that the power, being a personal one exercisable at his discretion by the Registrar, imposes the onus to conform strictly with the statutory requirements permitting a determination to be made. Mr. McCarthy contended that the exercise of the power in a judicial manner requires personal enquiry by the Registrar – the only person on whom the power is conferred – to ascertain facts from which the inference may be drawn that an error giving rise to a claim for compensation has been made in the Land Registry which is capable of rectification. He submitted that such enquiries would in justice require communication with the registered owner, and if the rights to be affected relate to the registration of the registered owner, justice requires that the registered owner be given an opportunity of defending his right as, and to be, the registered owner. In support of his contentions Mr. McCarthy cited the observations of Walsh J. in East Donegal Co-Operative -v- Attorney General 1970 I.R. 317 at 343:-
“All the powers granted to the Minister by section 3 which are prefaced or followed by the words “at his discretion” or “as he shall think proper” or “if he so thinks fit” are powers which may be exercised only within the boundaries of the stated objects of the Act; they are powers which cast upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice, and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will. Therefore, he is required to consider every case upon its own merits, to hear what the applicant or the licensee (as the case may be) has to say, and to give the latter an opportunity to deal with whatever case may be thought to exist against the granting of a licensee or for the refusal of a licence or for the attaching of conditions, or for the amendment or revocation of conditions which have already attached, as the case may be.”
Mr. McCarthy contended that the stated objects of the 1964 Act most pertinent to this instant application are expressed in sections 121, 120, and 98 and in the rules made under the Act, in particular rules 137 to 145 inclusive. He submitted that justice required that the Registrar should disclose to the registered owner the existence of facts or information from which an error in the registration can be identified, the nature of the error, whether or not it is capable of rectification pursuant to the provisions of section 32 (1) of the 1964 Act or otherwise so coming within the scope of section 120 (1) as to necessitate the protection of the common fund from a claim for compensation. Mr. McCarthy argued that there is nothing in section 121 which relieves the Registrar from the obligation of giving to the registered owner before entering an inhibition under that section the sort of notice and information required before entry of an inhibition under section 98. By subsection (3) of section 121 the Registrar is required to give such notice and information after the entry of the inhibition. Mr. McCarthy submits that if the power conferred by section 121 is to provide for a circumstance of some urgency, such as a threatened or pending claim for compensation, the information to be furnished under subsection (3) should state the facts creating such circumstance. The rules and forms prescribed by the Act specify the terms in which an inhibition may be expressed, but the inhibition entered by the Registrar does not conform to these. It would seem from the prescribed rules and forms, Mr. McCarthy maintains, that an inhibition is intended to be of only temporary effect. But, he pointed out, the inhibition under section 121 seems to be permanent in its effect unless and until the registered owner or some person to whom the Registrar has given notice takes some step either for the removal of the inhibition or for rectification of the register.
For the respondent showing cause Mr. Clarke submitted that section 121 confers a power on the Registrar to protect the common fund from claims for compensation due to error occurring in the registration of ownership or other interests in the land. Because of the nature and purpose of the power conferred its effect is of an interim nature only, to preserve the status quo and to prevent the acquisition of rights by unregistered persons, pending rectification of an error. He compared section 121 with section 98 showing the distinctive characteristic of section 121 to be its holding operation and peremptory nature with subsequent notice putting contending parties in a position to agree or take steps for rectification of the error. He argued that it was within the power of the Registrar to remove the inhibition if the person whose claim or representations gave rise to the entry failed to proceed. He referred to rule 142 of the 1972 rules which provides for application to the Registrar on notice for the modification or discharge of an inhibition. This rule he submitted applies to inhibitions entered pursuant to section 121 as well as to those entered on the application of persons other than the Registrar. He argued that no injustice is done by a necessarily peremptory but temporary restraint on the rights affected where provision is made for subsequent immediate enquiry and is subject to a right of appeal under section 19 of the Act.
On the matter of the residual right of appeal to correct a determination found to be not in accordance with the principles of justice Mr. McCarthy referred to comments of McGarry J. in Leary -v- Nation Union of Vehicle Builders 1971 1 Ch 34 cited with approval by Pringle J. in Ingle -v- O’Brien 109 I.L.T.R. 7 at page 11. He also quoted from the judgment of O’Higgins C.J. in the State (Abenglen Properties Limited) -v- Dublin Corporation 1982 I.L.R.M. 590 at 597 where he says:-
“The question immediately arises, as to the effect on the exercise of the court’s discretion, of the existence of a right of appeal or an alternative remedy. It is well established that the existence of such ought not to prevent the court from acting. It seems to me to be a question of justice. The court ought to take into account all the circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative remedy and, of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial. Again, if an appeal can only deal with the merits and not with the question of jurisdiction involved, the existence of such ought not to be a ground of refusing relief. Other than these, there may be cases where the decision exhibits an error of law and a perfectly simple appeal can rectify the complaint, or where under administrative legislation, adequate appeal machinery particularly suitable for dealing with errors in the application of the code in question exists. In such cases, while retaining always the power to quash, the court should be slow to do so, unless satisfied that, for some particular reason, the appeal or alternative remedy is not adequate.”
Mr. McCarthy pointed out that in the absence of sufficient information in either the notice of entry of the inhibition, namely the letter of the 25th February, 1985, nor in the affidavit showing cause as to the facts or circumstances giving rise to the entry of the inhibition the prosecutor, the registered owner, does not know the nature of the case required to be made by him nor of the case he might expect to meet in the event of an appeal by him under section 19 of the 1964 Act. In reply to the contention that the inhibition is a mere holding operation of a temporary but urgent nature he submitted that the only matters properly within that description, namely matters pending in the central registration office, are in fact excluded by subsection (2) of section 121 from the effects of an inhibition under that section. He contended that the entry on the folio gives no indication that the inhibition is intended to have only temporary effect.
Having given careful consideration to the legal principles enunciated and to the arguments submitted I am satisfied that the application of the prosecutor is well founded. The establishment of the register to evidence ownership of land and of rights over land of which the ownership is registered necessarily involves serious consequences from registration of cautionary notices or inhibitions affecting registered land. The determination to enter an inhibition is entrusted only to the Registrar, and must be exercised by him in a judicial manner. Section 121 of the 1964 Act which gives him a discretion in the exercise of this power sufficiently indicates the purpose and circumstance for its exercise. In my opinion every exercise of this power should be capable of being identified as protecting the common fund from a real probability of a claim for compensation, and should relate to an identifiable error made in the Land Registry of a nature for which compensation could be payable in accordance with section 120 of the Act. The use of the power conferred in section 121, while available to anticipate an urgent situation, is not confined to such circumstances. The section does not require that the inhibition should be limited as to the time of its duration or its purpose. Nevertheless, conformity with the other like provisions of that nature in the statute requires that its limitations (if any) of time and purpose should be disclosed by the entry. It is understandable that in the circumstances of some urgency for the protection of the common fund it would be imprudent or impractible to give, prior to making the entry of the inhibition, the notice and opportunity for hearing indicated in subsection (3) of section 121. But because of the grave nature of the interference with rights over land and the evidence thereof empowered by section 121 I am of opinion that, unless the urgency of the circumstances otherwise require, justice requires that notice should be given to the person whose rights may be affected of the intention to enter such an inhibition and an opportunity given to show cause why it should not be entered. By so doing the primary object of the section, namely the protection of the common fund from claims for compensation, could be achieved without injustice to any party. Whether a contrary effect might result is something which the Registrar would have to assess in every case as it arises and upon its own facts. On the evidence before this court there is nothing to show that the purpose of section 121 is being achieved, namely that there is any risk of any claim for compensation of a nature indicated in section 120 which is being prevented or avoided. There is no evidence to suggest an urgency which made it necessary to proceed without communication to the registered owner, nor of circumstances suggesting that to do so might in any way defeat the purpose of section 121. There is also an absence of sufficient evidence to show that the Registrar gave his personal attention to the factors supporting a proper determination under this section or that the determination was in fact made by him. I accept the arguments advanced on behalf of the prosecutor as supported in evidence and sound in law. In my opinion all four grounds on which the Conditional Order was made have been established and cause shown must be disallowed.
Persian Properties Ltd v Registrar of Titles
[2003] IESC 12
Court: Supreme Court (Ireland)
Judge: Keane CJ.
The proceedings which were the subject of the appeal to this court took the form of an application by the respondents/plaintiffs (hereafter “the developers”) for compensation pursuant to S.12(1) of the Registration of Title Act 1964(hereafter “the 1964 Act”). The first named appellant/respondent (hereafter “the Registrar”) made an adjudication and order on the 26 th July 1999 dismissing the claim. There followed an appeal by the developers to the High Court which was heard by Ms. Justice Carroll who, on the 14 thFebruary 2001, allowed the appeal. From that judgment and order, the Registrar and the Minister for Finance have appealed to this court.
The facts are set out with customary clarity by the learned High Court judge in her judgment. There is an entrance between the side of the Davenport Hotel and the rear of the house and garden at No. 1 Merrion Square. It is a bottleneck entrance: there is a strip measuring approximately 22 feet in length and 5 feet in width at the rear of No. 1 Merrion Square and a corresponding strip on the Davenport Hotel side. After 22 feet approximately the entrance widens out to 15 feet.
The title position is as follows. The Commissioners for Public Works in Ireland had acquired the leasehold interest in No. 3 Merrion Square from the Pembroke Estate under lease dated 23 rd March 1931. The lease also included the plot of ground at the rear of No. 1 Merrion Square which is the subject of these proceedings. By conveyance of the 25 th April 1975, the Commissioners acquired the fee simple in the premises from the Pembroke Estate: it was conveyed by reference to the premises comprised in the lease. In accordance with the provisions of the 1964 Act, the Chief State Solicitor applied on behalf of the Commissioners for first registration on 3 rd February 1976, identifying the property comprised in the Conveyance as outlined in red and blue on the map accompanying the application.
That map was inaccurate, in that it reduced the strip at the rear of No. 1 Merrion Square by about 3 feet, although it showed the full width of the strip on the Merrion Hall side. However, the critical error occurred in the Land Registry which eliminated the bottleneck entirely on both sides and showed a passage approximately 15 feet wide from what had previously been the “neck” of the bottle. The title was registered on Folio 8708F, County Dublin.
The Commissioners also acquired the fee simple in No. 2 Merrion Square and their freehold title was registered in a separate folio. The Commissioners transferred the lands in Folio 8708F (including the disputed strip) and No. 2 Merrion Square to a company on the 16 th September 1988 which in turn transferred all those premises to Foleyhurst Limited on the 11 th January 1989. A company called Minoa Limited which wished to erect townhouses and apartments at the rear of No.s 2 and 3 Merrion Square acquired part of Folio 8708F (including the disputed strip) as well as the remainder of the premises. They obtained planning permission for the erection of three townhouses and two apartments at the rear of No.s 2 and 3 Merrion Square.
The developers, as already noted, acquired Merrion Hall with the intention of converting it into what subsequently became the Davenport Hotel. Since they did not wish the townhouse/apartment development contemplated by Minoa Limited to go ahead in close proximity to their new hotel, they also bought the plot at the rear of No. 1 Merrion Square together with the remainder of the premises owned by that company, from them. The sale was closed on 7 th May 1992 and a transfer executed on the 2 nd July 1992.
At the time the developers bought that plot, the leasehold interest in No. 1 Merrion Square was owned by Tomkin Estates Limited (hereafter “Tomkin”) under a reversionary lease from the Pembroke Estate dated 1 st March 1955. The premises at the side and to the rear of No. 1 Merrion Square comprised in that lease had at the date of the Tomkin lease been demolished. The auctioneering firm of Morrisseys had built a premises for the carrying on of their business on this cleared site. However, the gable wall of the Morrissey building was approximately 5 feet inside the boundary as shown on the lease. There was a screen wall extending approximately 5 feet at right angles to the gable wall with a pedestrian entrance and an arch a short distance in from the entry to the laneway. The rest of the laneway was closed off by substantial gates at night time. Beyond the screen wall the laneway opened out to 15 feet. The screen wall and pedestrian entrance is shown in the map lodged with the application for planning permission and they are also visible in a photograph taken before the hotel development began. That photograph also shows a car parked on the portion inside the boundary of the Tomkin lease.
On the 8 th May, i.e., the day after the sale to the developers of the property including the disputed strip was closed, the builder of the hotel, Mr. Maguire, demolished the screen wall and pedestrian entrance. A crane was then moved onto the site so that the building work could proceed. On the 15 th May 1992, Tomkin wrote to Mr. Noel O’Callaghan, the person principally concerned with the hotel development, claiming that they were the owners of that part of the entrance where the screen wall and arch had stood by virtue of their lease. (At a later stage, Tomkin acquired the fee simple interest in the premises.) Tomkin then issued proceedings in the High Court in which they claimed to be entitled to the disputed plot. The proceedings were defended by the developers and Mr. O’Callaghan, who was personally sued, and a trial lasting four days ensued before McCracken J. In a written judgment, he found in favour of Tomkin and granted them a declaration that they were the owner of the disputed plot. He also awarded them the costs of the proceedings. The developers then made their application for compensation under the 1964 Act. On the hearing of the appeal from the Registrar’s refusal of the application, evidence was given by Mr. O’Callaghan, the solicitor for the developers, Mr. Kelly, the architect of the hotel development, Mr. James O’Connor, the builder, Mr. Maguire, and two valuers on behalf of the developers and the Registrar of Titles.
Mr. Kelly said that, when the sale from Minoa Limited to his clients was closed on 7 th May, there was a “huge urgency” as the preliminary work had already started and a crane had to be erected on the site. He made a telephone call to say the sale was closed and the crane went on the site within hours of the closing.
Mr. Kelly became aware of Tomkin’s claim on the 20 th May. There was a meeting on the site attended by Mr. O’Callaghan, Mr. Maguire and representatives of Morrisseys and Tompkins. After the meeting, Mr. Kelly advised his client that the claim that the builder had trespassed and wrongfully demolished the arch was “nonsense”: he based this on the land registry map and the map annexed to the contract. He asked his client to inspect the map and satisfy himself, but he could not get access to the original lease map without permission from Minoa Limited. While he could not get access to the dealings on first registration prior to the closing, he agreed that he was thereafter entitled to inspect them and did so in June 1992. He then saw how the mistake had happened. In view of the submissions advanced to this court, it is important to note that the solicitor for the developers and Mr. O’Callaghan had, accordingly, become fully apprised of the true position as to the title to the disputed site several months before the proceedings ultimately heard by McCracken J were instituted on the 14 th December 1992.
Mr. O’Callaghan, in his evidence, said that he had bought the rear gardens of No.s 2 – 3 Merrion Square from Minoa Limited in order to prevent the townhouse/apartment developments, to provide on site parking for the hotel and to allow the crane in. He said he was not aware of any claim by Tomkin prior to the closing of the sale and said there was no complaint by Morrisseys to his knowledge of the demolition of the entrance and arch. He had defended the action brought by Tomkin against the developers and himself because that was the legal advice he had received. (That was confirmed in evidence by Mr. Kelly.) He said that Tomkin had wanted £10,000 a year for the disputed plot.
Mr. Christopher Hogan, the deputy registrar of the Land Registry, said, in evidence, that, at the time of the application for first registration by the Chief State Solicitor, the lease map and an ordinance survey map were lodged. The lease map was drawn in 1931, but the buildings then on the site had been replaced by the Morrissey building which had not been built on precisely the same site. The Land Registry had misinterpreted the map by taking Morrisseys as the physical boundary and showing the boundary as running along the gable wall. The map submitted with the application had also contained an error in showing the boundary a distance of 2 feet from the actual boundary. As a result, in his view, the Land Registry had contributed to 40% of the discrepancy. The application had been accompanied by a certificate that the Chief State Solicitor had examined the title, thus allowing the registrar to modify his examination of the title. Had the person examining the title in the Land Registry compared the ordinance survey map with the lease map, the difference would have been noticed, but that would not necessarily have been done. The area of the disputed plot — 116 square feet — was 1.8% of the total area the subject of the application for first registration. The area sold by Minoa Estates to the developers was 4840 square feet and, accordingly, the disputed plot represented 2.5% of the total.
In her judgment, the trial judge said that the error which had given rise to the application was not within the acceptable margin of error in mapping practice contemplated by S.85 of the 1964 Act, applying the judgment of the High Court in Boyle -v- Connaughton (Unreported; Laffoy J; judgment delivered 21 st March 2000). She pointed out that, even though the error as a percentage of the entire area comprised within the application on first registration was very small, it nonetheless affected two thirds of the entrance to the lane.
The trial judge went on to find as a fact that Mr. O’Callaghan entered into the contract for sale with Minoa Limited for three reasons: in order to get a crane on to the site, to prevent the townhouses being built and to provide onsite car parking spaces for the hotel. She said that she was also satisfied that he became aware on the 6 thMay 1992, the day before closing, that Tomkin claimed to own the pavement in front and behind the gate and pier and that she was also satisfied that he did not tell his solicitor, Mr. Kelly, who would have advised him not to close. Thus, in her view, he deliberately took a risk by not making further inquiries. She also found that he had kept Tomkin at bay by saying (on the 18 th May) that he had instructed his architect to let them have proposals relating to reinstatement of the laneway within a week to ten days (which never materialised). She also referred to what she described as other “delaying tactics” until the 18 th January 1993 when the developers effectively laid claim to the disputed strip. She went on:
“It is significant that in the letter of 15 th June 1992 Mr. O’Callaghan’s solicitor stated that any application for an injunction which would result in interruption or delay in carrying out the building works would have most serious consequences and would involve their client in substantial loss. Mr. O’Callaghan’s solicitor knew in June, 1992 having inspected the lease map exactly where the problem lay.”
“Mr. O’Callaghan achieved his second objective in that he did not build the townhouses and the planning permission withered. He achieved his third objective by being able to provide onsite car parking for the hotel. He said it is used for parking 20 – 25 cars.”
The trial judge then went on to consider the evidence of the valuers. The applicant’s valuer had estimated the diminution in value to the developer’s freehold interest by reason of the loss of the strip at £200,000. She pointed out that the same valuer in the proceedings before McCracken J valued the plot of land at £7,320. The valuer for the respondents had estimated the diminution in value at £7,500.
The trial judge said that she was satisfied that the value should be more than the value per square foot paid for the entire site: allowance should be made for the fact that it occupied a key position at the entrance to the site. She accepted the valuation given on behalf of the defendants of £7,500 but increased it to £10,000 because of the key position it occupied. She also said that she was satisfied that, if the developers had brought the matter up with Minoa Limited before closing, their options under clause 16 of the contract would have been to withdraw from the sale, which she was convinced Mr. O’Callaghan would not have done, or to negotiate for compensation for the reduction in area.
The trial judge finally concluded that the developers were entitled to recover the costs of the litigation in the High Court before McCracken J but not the costs of the appeal to this court which had been withdrawn. In the result, they were entitled to recover the costs as taxed on a party and party basis and paid to Tomkin and their own costs of defending the proceedings taxed on a solicitor and client basis. They were also entitled to interest on the costs from the date of payment until the date of reimbursement, but were not entitled to interest on their own costs of defending the proceedings, which had not at that stage been paid.
The trial judge rejected the argument on behalf of the defendants that they were liable for only 40% of the loss.
The oral hearing of the appeal in this court was principally concerned with the question as to whether the trial judge was correct in law in awarding the developers the costs of the High Court proceedings before McCracken J. There were, however, other arguments advanced on behalf of the defendants in support of their submission that no award of compensation should have been made, which should be first considered. At the outset, the relevant provisions of the 1964 Act should be set out.
Section 120 is the provision requiring compensation to be paid. It provides that
2 “(1) This section applies to a loss sustained by any person by reason of
a) Rectification by the court of any such error in registration as may be rectified under subsection (1) of S.32, or
b) Any error originating in the Land Registry (whether of misstatement, misdescription, omission or otherwise and whether in a registry or in the registry map) which occurs on registration and is not rectified under the said subsection (1) or
c) Any entry in or omission from a register or registry map caused or obtained by forgery or fraud or
d) Any error in an official search carried out by a registering authority or any of his officers, or,
e) The inaccuracy of any office copy of or extract from a register or registry map, or of any office copy of extract from any document or plan filed in the Land Registry.
(2) Where any person sustains loss to which this section applies, and the loss was not caused or substantially contributed to by the act, neglect or default of himself or his agent, that person and also any person deriving title from him shall be entitled to compensation for that loss in accordance with this section.”
Section 31(1) provides that
“The Register shall be conclusive evidence of the title of the owner to the land as appearing on the Register and of any right, privilege, appurtenance as appearing thereon; and such 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 other matter relating to land; but nothing in the Act shall interfere with the jurisdiction of any court of competent jurisdiction on the ground of actual fraud or mistake, and the court may upon such grounds make an order directing the register to be rectified in such a manner and on such terms as it thinks just.”
Finally S.85 provides that
“Registered land shall be described by the names of the denomination of the ordinance survey maps in which the lands are included, or by reference to such maps, in such manner as the Registrar thinks best calculated to secure accuracy, but, except as provided by this Act, the description of the land in the Register or on such maps shall not be conclusive as to the boundaries or extent of the land.”
The first submission advanced on behalf of the defendants was that any loss that might have been sustained by the developers was
“caused or substantially contributed to by the act, neglect, or default of himself or his agent”
within the meaning of S, 120 (2).
It was argued that the developers had allowed the sale to be closed at a stage when they knew Tomkin was making a claim to the disputed strip and had deliberately refrained from taking advice from their solicitors. It was submitted that, where a party completes a transaction in the knowledge that he is taking a risk of that nature, the defendants should not be required to compensate him.
I am satisfied that this submission is not well founded. There were clearly pressing commercial considerations indicating that the sale should be closed forthwith and the developers were, in my view, perfectly entitled to rely at that stage on the Register and complete as they did. The mere indication by another party, such as Tomkin, that they were asserting a title to the disputed strip did not oblige the developers to withdraw from the sale or enter into negotiations with Minoa Limited for a reduction in the price. The defendants would, in any event, have been obliged to compensate Minoa Limited for that reduction.
It was also submitted on behalf of the defendants that the fact that cars were parked on the disputed strip should have indicated to them that there were certain unregistered rights in the form of easements to which they would take subject, even thought they were not registered, having regard to the provision of S.72 of the 1964 Act.
Again, I am satisfied that this submission is unsustainable. Tomkin did not contend in the proceedings successfully instituted by them in the High Court that they had unregistered rights which the court should uphold: they unequivocally asserted a claim to be the owners of the fee simple in the disputed strip, a claim which was upheld by the High Court.
It was further submitted on behalf of the defendants that the error did not arise entirely in the Land Registry, since the initial application made to the registry itself contained an inaccuracy. That submission is also, in my view, clearly unsustainable. The Land Registry in this case adopted the procedure authorised by the relevant rules which entitles the Registry to dispense with a full investigation of the title in certain cases where there is a certificate by the solicitor that the title is in order. That procedure is in ease of applicants for registration and plainly does not relieve the defendants of the obligation to pay compensation pursuant to S.120(2) in respect of an error in registration which has not been caused, or substantially contributed to, by the person sustaining the compensatable loss.
It was also submitted that the defendants were entitled to rely on S.85 of the 1964 Act which makes it clear that the description of the land in the Register is not to be conclusive as to the boundaries or extent of the lands. I am satisfied that the trial judge was entirely correct in holding, as Laffoy J had done in the earlier unreported decision already referred to, that this section did not relieve the defendants from payment of compensation where the error could reasonably be regarded as substantial. While the error undoubtedly related only to 1.8% of the area of land comprised in the first registration, it related to two thirds of the entrance to the lane and could not be regarded as merely a minor error.
There remains the question as to whether the developers are also entitled to compensation in respect of the losses incurred by them in defending the High Court proceedings before McCracken J.
It must again be pointed out that several months before those proceedings began the solicitor for the developers had become aware of the error in the Land Registry map. Nevertheless, at a stage when the assertion of a title to the disputed strip was not in any way necessary for realising the commercial objectives which had prompted the purchase from Minoa Limited in the first place, they refused to admit the title of Tomkin and, when proceedings were instituted claiming inter alia a declaration that Tomkin was the owner in fee simple of the disputed strip, they delivered a full defence denying that Tomkin was entitled to any such relief. The taxed costs of Tomkin amounted to £81,661.39 and the amount of the solicitor and client costs payable by the developers was agreed with the defendants in the sum of £57,407.25. There was also a sum of £2783 payable in respect of cost drawers” fees.
In the course of his judgment, McCracken J referred to a submission on behalf of Mr. O’Callaghan and the developers that an order rectifying the register by describing Tomkin as the owner could not be made and would cause “injustice” to the defendants, and expressed his conclusions as follows:
“In my view I do not have to decide whether the Land Registry map, or the register, can be rectified. I am not being asked to make such an order by the plaintiff. The plaintiff’s case is very straightforward. It has a fee simple title which is not registered, and the defendant is trespassing on its land and has destroyed a pier and gate and a wall which stood in its land. It has shown that the disputed land was conveyed to it in fee simple. There is no suggestion that the defendant has acquired a statutory title to this disputed plot, as there is clear evidence that the plaintiff’s tenant has used this land regularly to park cars, and even went so far as to erect a “No Parking” notice on the wall of the Morrissey building, which is a clear act of ownership. Accordingly, the plaintiff is entitled to a declaration in the terms of paragraph one of the amended statement of claim.”
It need hardly be pointed out that the declaration thus made by the learned High Court judge did not confer the ownership of the fee simple on Tomkin as of that date: it was an express finding, which cannot now be disputed, having regard to the withdrawal of the appeal to this court, that Tomkin at all material times was the owner of the leasehold interest or the fee simple is the disputed strip.
As I understand the submission advanced on behalf of the developers in support of the proposition that the defendants should be responsible for the payment of all the costs of both sides in this litigation, it is twofold.
First, it is submitted that, had the developers not resisted the claim of Tomkin to be entitled to the fee simple, the defendants might successfully have resisted the application for compensation, on the ground that an applicant for compensation must show that he has taken all means open to him to obviate any loss which he claims to have suffered, citing the decision of Madden J in Re: Local Registration of Title Act -v- Patterson, 3 NIJR 90, 108and the statement of the law in McAlister on Registration of Title, pp.300/301.
Secondly, it was submitted that, having regard to the provisions of S.31(1) of the 1964 Act, to the effect that the Register is to be conclusive evidence of the title of the owner of the land, it was reasonable for the developers, in the absence of any court order pursuant to S.32(1) of the 1964 Act rectifying the Register, to resist the claim of Tomkin to be the owners in fee simple of the disputed strip.
In considering the first of these submissions, I should refer to S.83(5)(c) of the English Land Registration Act, 1925, which, although not helpful to his case, was properly drawn to our attention by Mr. George Brady SC on behalf of the defendants. It provides that
“No indemnity shall be payable under this Act in any of the following cases …
(c) On account of costs incurred in taking or defending any legal proceedings without the consent of the registrar.”
Despite the absence of any corresponding provision in the 1964 Act, I am satisfied that the submission on behalf of the developers that they were obliged to resist the claim by Tomkin and engage in expensive litigation in the High Court before applying to the defendants for compensation is wholly unsustainable.
In Patterson, which was the first application for compensation arising out of an error in the Land Registry, Madden J said:
“I am of opinion that it is not sufficient to point to a fault on the part of the registrar, and say that loss has been incurred in consequence. In future the claimant must prove before me what is the actual loss he has incurred and what proceedings he has taken to obviate it and unless he has shown that he has exhausted all the means open to him he will not be entitled to be compensated out of the Fund.”
(Under the statutory regime then in force, the compensation was payable out of an insurance fund.)
How the procedure there laid down operated in practice is illustrated by a decision of Madden J’s successor as the Land Judge, Wylie J, Re Serridge. Provincial Bank v Trustees of Insurance Fund (1926) IR169. In that case, the bank claimed compensation from the fund because of a delay by the Registrar in registering a judgment mortgage which could result in their being postponed to another charge. The bank had additional security for the money secured by the charge but that security had not been realised by them. The trustees opposed their application for compensation relying on Patterson. Wylie J held that they were entitled to compensation but directed that they should exhaust any other remedies available to them and that the matter should stand over for six months, the costs being reserved. The only changes in procedure since that decision have been that the compensation is now payable directly from the central fund and the application is to the Registrar with an appeal to the High Court. At worst, if such an application had been made, it would also have been adjourned to enable the title issue to be litigated and the developers would have been no worse off, although I am bound to say that I cannot see any basis on which the Registrar could have required the developers to engage in such expensive and unnecessary litigation.
However, it is sufficient to say that it would seem to me wholly unjust and unreasonable that any party should be required to bear the substantial costs of litigation such as occurred in this case without being given any opportunity whatever to indicate whether they considered it as a necessary precondition to their liability to pay compensation. No doubt, in the absence of any provision in our legislation corresponding to that in the English Act of 1925, it cannot be said that in every case where a party is seeking compensation pursuant to S. 120(2), it will not be entitled to recover the costs of taking or defending legal proceedings without the consent of the Land Registry. Whether they are entitled to be reimbursed any such costs will inevitably depend, accordingly, on the circumstances of the particular case. In the present case, I am satisfied that it would be unjust and unreasonable to require the defendants to bear the substantial costs involved in the High Court proceedings when they were at no stage given any indication by the developers that they proposed to resist them up to and including the service of a notice of appeal to this court.
The second submission rests on a misunderstanding of the true significance of S.31(1) of the 1964 Act. The Local Registration of Title (Ireland) Act, 1891, which that Act repealed and replaced, was intended to provide in Ireland a system of registration of title which would relieve the owners of registered land from the difficulties of establishing their title to the land which were the lot of owners of unregistered land throughout the then United Kingdom and which were associated with the notorious complexity of the English law of real property. Those landowners were always exposed to the risk of having the documentary title to their land impugned because of frailties in the chain of title stretching back, it might well be, to a root of title in the distant past. Save in cases of “actual fraud or mistake”, the owners of registered land were in the far more advantageous position of being entitled to rely on the Register, and the Register alone, as conclusive evidence of their title “as appearing on the Register”. But since it was also obvious that, in any such system, errors would occur in the actual delineation of the boundaries and extent of the land in question, S.85 went on to provide that the “description” of the land in the Registry was not to be conclusive as to “the boundaries or extent” of the lands. Such an error occurred in this case, through no fault of the developers, and, while that inevitably had the result, as found by McCracken J, that they were not entitled to the ownership of the disputed strip, they were undoubtedly entitled to the appropriate compensation for the loss they sustained as a result of the error in the Land Registry.
This was not a case in which at any time Tomkin were seeking to set up unregistered equitable rights by way of defence to a claim for possession by the registered owner, a course of action which was not permitted in McManus -v- Kiernan (1939) IR297. This was a case in which they were at all times seeking to rely on their incontestable documentary title and an admitted error in mapping by the Land Registry. McCracken J was correct in law in upholding their claim to be the owners in fee simple of the disputed strip and in any event that claim is now res judicata and cannot be reopened in these proceedings.
I would, accordingly, allow the appeal and substitute for the order of the High Court an order awarding the developers the sum of £10,000, being the value of the strip of land the subject of the application for compensation.
Oglesby v Property Registration Authority
[2010] IEHC 548
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Mr. Justice Abbott
JUDGMENT of Mr. Justice Abbott delivered on the 21st day of April, 2010
1
This appeal arises from the claim by the plaintiff for compensation pursuant to s. 120 of the Registration of Title 1964 Act, to compensation by the Property Registration Authority for losses suffered by her by reason of an error that originated in the Land Registry in relation to the lands described in the heading hereof. In para. 3 of the plaintiff’s affidavit sworn on the 22nd June, 2009, grounding the claim, she sets out the relevant facts where she avers as follows:-
‘(a) In July, 1996 I purchased folio 42575 Donegal for valuable consideration and as a bona fide purchaser from one, Mary Sharkey.
(b) In or around 2007, I intended to sell this land and it was only then discovered that part of plot “2B” on folio 42575 had at some point in the past been transferred to folio 36099F County Donegal and that, in effect, I had lost control of it. Further, this plot because of its intrinsic value prevented the other lands being disposed of. There has been no prior indication of this and, indeed, the Land Registry printouts continue to show plot “2B” on folio 42575.
(c) It would appear that the erroneous registration had occurred at some point in the 1990s, but at the latest in 1997.
(d) However, I reiterate that the matter only came to my attention when planning was sought for the lands, and I had no knowledge whatsoever of the transfer, nor nothing to suggest to your deponent that anything was amiss.
(e) The Property Registration Authority by ruling of the 21st April, 2009, formally refused compensation and I now wish to appeal this refusal to this Honourable Court, not least…my land has been devalued €250,000.’
2
From studying the maps exhibited with the application to the Registration Authority and from hearing the evidence of Mr. Bonner, Solicitor, regarding the physical layout of the plots in respect of which compensation is claimed, I am satisfied that the plot purchased by the plaintiff in respect of which compensation is claimed (hereinafter referred to as ‘the disputed plot’), constituted a piece of ground lying between other fenced off lands of the plaintiff and the foreshore in a coastal location, which had not been fenced off from other surrounding lands, and was accessible from the foreshore and other adjoining lands. There was no signposting, lock spitting, rock piling or other physical assertions of title, much less the physical occupation of the lands by grazing of such animals that might eke out an existence, (at least for some time of the year), on the very marginal grazing that might exist between the rocky waste, the outcrop of which characterised this land. In view of this latter consideration it is with some hesitation that I accept the plaintiff was, in fact, a purchaser for value without notice of the folio in the first place. The purchaser of any unenclosed lands runs the risk of being saddled with rights of possession, that affect the lands without the necessity of registration where rigorous enquiries are not made in relation to the user of such lands, and where there is strict insistence on proof that the vendor has asserted title in some way so as to flush out other pretenders or claimants to the title.
The Law
3
While the case in Re Ryan’s Estate [1945] I.R. 359 dealt with s. 93 of the Local Registration of Title (Ireland) Act 1891, the precursor of s. 120 of the Registration of Title Act 1964, the majority decision in that case is authority for the proposition that the time from which the right to claim compensation ran was the date of the last transfer for valuable consideration: in this case that would be the date of purchase of the disputed lands by the plaintiff in 1996. This decision was followed by the Supreme Court in Application of Sean Leonard, Folio 20518 County Limerick (Unreported, 30th December, 1981), (albeit with reluctance) s. 120 of the Registration of Title Act 1964 provides as follows:-
120. – (1) This section applies to loss sustained by any person by reason of
(a) the rectification by the court of any such error in registration as may be rectified under subsection (1) of section 32, or
(b) any error originating in the Land Registry (whether of misstatement, misdescription, omission or otherwise, and whether in a register or in a registry map) which occurs in registration and is not rectified under the said subsection (1), or
(c) any entry in or omission from a register or registry map caused or obtained by forgery or fraud, or
(d) any error in an official search carried out by a registering authority or any of his officers, or
(e) the inaccuracy of any office copy of or extract from a register or registry map, or of any office copy of or extract from any document or plan filed in the Land Registry.
(2) Where any person sustains loss to which this section applies, and the loss is not caused or substantially contributed to by the act, neglect or default of himself or his agent, that person and also any person deriving title from him shall be entitled to compensation for that loss in accordance with this section.
(3) In the case of rectification of an error by the court under subsection (1) of section 32, the costs and expenses incurred by the applicant in obtaining the rectification shall be deemed to be a loss to which this section applies.
(4) All compensation payable under this section shall be paid out of moneys provided by the Oireachtas.
(5) The following provisions shall apply to every claim for compensation under this section:
(a) the claim shall be made in the prescribed manner to the Registrar and notice thereof shall be given to the Minister for Finance;
(b) the Registrar shall determine the claim and such determination shall be final unless either the Minister for Finance or the claimant is dissatisfied with that determination, in which case either party may appeal to the court;
(c) no claim shall be entertained by the Registrar after the expiration of a period of six years from the time when the right to compensation accrued unless, on the expiration of such period the person entitled to claim was under disability, in which case the claim shall not be entertained after the expiration of two years from the termination of the disability, but the determination of the Registrar to refuse or allow a claim under this paragraph shall be subject to appeal to the court;
(d) for the purposes of paragraph (c), the right to compensation shall be deemed to have accrued—
(i) in regard to any estate or interest in possession, on the date of the registration which occasioned the loss in respect of which compensation is claimed, or
(ii) in regard to any estate or interest in remainder or reversion, on the date when such estate or interest would, but for such registration as aforesaid, have fallen into possession;
(e) the compensation shall include the costs incurred by the claimant in establishing his claim.
(6) Where compensation is paid under this section to any person—
(a) the compensation (other than costs) shall be applicable in discharge of any incumbrances affecting the estate or interest of that person in the land or charge in respect of which the compensation is payable;
(b) the Minister for Finance shall have the same right to recover the amount of such compensation from any person who caused or derived advantage from the loss as the person who suffered the loss would have had if the loss were an injury caused to him by the first mentioned person.
4
Counsel for the plaintiff has argued on the basis of the findings in Re Ryan’s Estate [1945] I.R. 349, that the date from which time runs against the plaintiff is the date when she discovered the adverse claim/registration to the disputed lands when she applied for planning permission, which is a date that falls within six years of the application for compensation in the appeal. In the alternative, counsel for the plaintiff argued that the jurisprudence of the Irish Courts in relation to discoverability has developed since 1982, citing Tuohy v. Courtney [1994] 3 I.R. (Supreme Court). In this context submissions of both counsel relied on the decisions in Hegarty v. O’Loughran [1990] 1 I.R. 148, Morgan v. Park Developments Ltd [1983] I.L.R.M. 156, Martin Doyle v. C&D Providers (Wexford) Ltd [1994] 3 I.R. 57, Irish Equine Foundations Ltd v. Robinson and Others [1999] 2 I.R. 442, White v. Dublin City Council [2004] 1 I.R 545. Counsel for the plaintiff also relied on the relief for mistake expressly contained in the Statute of Limitations 1957. Having considered the arguments based on the authorities, I am satisfied that I am bound by the authority of the Supreme Court in Re Ryan’s Estate [1945] I.R. 349 and Application of Sean Leonard, Folio 20518 County Limerick (Unreported, 30th June, 1981), not only because the High Court is bound by the constitutional precedence of the Supreme Court, but also I am convinced that the extension of the modern law of limitation of actions, both in statute and in the development of judicial jurisprudence in the constitutional sphere, which widens the scope of discoverability to allow for an extension of time, as the accrual date in respect of a claim for compensation does not have any relevance to the interpretation of s. 120 of the Registration of Title Act 1964 in the case for the following reasons:-
(1) On the basis of the judgment of Geoghegan J. in Irish Equine Foundation Ltd v. Robinson [1999] 2 I.R. 442, at p. 445 where he states:-
‘It is common case that discoverability, as such, cannot be relevant in considering what is the appropriate commencement date in respect of the limitation period. On this point at least, the view of the House of Lords taken in Pirelli v. Oscar, Faber & Partner s [1983] 2 A.C. 1, represents Irish law also. This is quite clear from the decision of the Supreme Court in Hegarty v. O’Loughran [1990] 1 I.R. 148, even though that particular case dealt with personal injuries and not damage to a building…
The reasoning contained in the several judgments in Hegarty v. O’Loughran and the criticism voiced of the decision of Carroll J. in Morgan v. Park Developments [1983] I.L.R.M. 156, indicates beyond doubt that the Supreme Court rejects the discoverability test no matter what the nature of the damage claimed is…
Any constitutional challenge on this account was rejected by the Supreme Court in Tuohy v. Courtney [1994] 3 I.R.. It was pointed out in that case that the Oireachtas had to achieve a balance between being fair to the plaintiff and being fair to the defendant who should not have to meet a stale claim. I need not elaborate of this matter any further because it is accepted that discoverability is irrelevant.’
(2) I cannot see any arguments for a jurisprudence evolving a relieving aspect in respect of disoverability any more than allowed for in Re Ryan’s Estate [1945] I.R. 349 in regard to compensation claims under s. 120 of the Registration of Title Act 1964, as the persons likely to claim compensation being purchasers for value without notice or persons who have engaged in the preparation of, and execution of a formal transfer as a prelude to registration, all of which involves a commercial transaction or deal between purchaser and vendor. It would seem to illustrate a type of social contract for compensation to the purchaser under s. 120 of the Act of 1964, which is not concealed, but constitutes the bedrock guarantee of conclusiveness of the register. Any purchaser must be taken to be fully advised as to the value of the commercial guarantee of s. 120 of the Act of 1964 and its transitory nature relating to its exercise, albeit for the generous period of six years.
(3) It would be quite inconsistent with the public policy of the Constitution of Ireland, 1937 guaranteeing the rights of private property to allow a situation to develop in the courts whereby a jurisprudence allowing for a more liberal version of discoverability to arise, which would excuse property owners seeking to avail of the constitutional right of private property, to neglect making enquiries in relation to the security of the very valuable commercial guarantee provided by s. 120 of the Act of 1964, either by fencing, exercising possession or even by perusing the documents in the Land Registry in relation to unfenced property.
(4) The question of considering a mistake, even if it could factually arise under the Statute of Limitations 1957, does not arise, as the court is not mandated to consider the provisions of another statute when a specific statute, namely s. 120 of the Registration of Title Act 1964, exists to deal with the situation under consideration. In any event, counsel indicated that they were unable to find any authority of assistance in relation to the application of mistake under the Statute of Limitations 1957.
5
Accordingly, I find that the plaintiff has made her claim following the objection to her application for planning permission well outside the six year period following her registration as owner of the property in 1996, and that she is statute barred in consequence and her appeal must be dismissed. I, therefore, dismiss the appeal.
Roche & Roche v Leacy
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Neutral Citation: [2012] IEHC 96
Reported In: [2012] 2 JIC 2901
Docket Number: [No. 4127P./2009]
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Miss Justice Laffoy
3 5.2 The system of registration of lis pendens was introduced in this jurisdiction in the Judgments (Ireland) Act 1844 at a time when the title to all of the land in Ireland was unregistered title. Section 10 of that Act provided that no lis pendens could bind or affect a purchaser or a mortgagee who had no express notice of it, unless and until a memorandum containing the requisite details concerning the suit was registered in court, latterly meaning in the Central Office of the High Court. Under s. 5 of the Judgment Mortgage (Ireland) Act 1850 it was provided that no lis pendens should bind or affect a purchaser or a mortgagee without express notice thereof unless relevant memorandum had been registered in the Central Office within five years before the execution of the conveyance to the purchaser. Section 2 of the Lis Pendens Act 1867, which was held by the Supreme Court in Flynn v. Buckley [1980] I.R. 423 as having applied to Ireland, was the provision which empowered the court in which the litigation was pending to vacate the lis pendens, without the consent of the party who registered it “upon the determination of the lis pendens, or during the pendency thereof, where the court shall be satisfied that the litigation is not prosecuted bona fide”. Finally, s. 21 of the Act of 1871 remedied a lacuna, in that it made provision for the registration of a vacate in what is now the Central Office, the object being to cancel the registration in the Central Office, which would appear on a judgment search. All of those provisions affected land the title to which was unregistered. There are corresponding provisions to be found now in Part XII of the Land and Conveyancing Law Reform Act 2009, which operate prospectively, including a provision which recognises that since the Act of 1995 a County Registrar has power to vacate a lis pendens on the application of the person who originally registered it (s. 126).
4 5.3 The position in relation to registered land is different, as is stated in the following passage in McAllister on Registration of Title (at p. 215):
“As regards registered land, thelis pendens, in order to affect a purchaser must be registered as a burden on the register of the lands affected, and not in the Registry of Judgments. Its re-registration every five years is unnecessary. So long as the lis pendens remains undischarged it remains on the register and binds any purchaser.”
Similarly, in Fitzgerald onLand Registry Practice (2nd Ed.) it is stated (at p. 210) that to affect registered land a lis pendens must be registered as a burden on the folio.
5 5.4 An analysis of the statutory basis of the foregoing propositions in relation to registered land must start with s. 69 of the Registration of Title Act 1964 (the Act of 1964). By virtue of subs. (1)(i) of that section a lis pendens may be registered as affecting registered land. The effect of a transfer of freehold land is set out in s. 52(1) of the Act of 1964 which provides:
“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 … and there shall be vested in the registered transferee an estate in fee simple in the land transferred… subject to -“
(a) the burdens, if any, registered as affecting the land, and
(b) 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.”
While unregistered rights may be created over registered land, s. 68(2) of the Act of 1964, provides that all such rights shall be subject to the provisions of the Act of 1964 with respect to registered transfers of land or charges for valuable consideration. This is consistent with subs. (2) of s. 52, which provides that where the transfer is made “without valuable consideration” it shall be subject to all unregistered rights subject to which the transferor had held the lands transferred.
6 5.5 Applying the foregoing provisions to the contractual position of the defendant, if he had completed the purchase on, say, 1st March, 2009, at that time no lis pendens in relation to the proceedings brought by Mrs. Roche, or indeed any proceedings, was registered as a s. 69 burden against the lands the subject of the contract on Folio 23035, County Wexford. It is true that the defendant was on notice that Mrs. Roche had registered a lis pendens against the first named plaintiff in the Central Office some months previously, although how the lis could have affected the part of the lands registered on Folio 23035 the subject of the contract was not clear. Even if it did affect the lands the subject of the contract, the defendant’s solicitors had been furnished with a copy of the letter of 4th February, 2009 from Redmond & Co., who identified Mrs. Roche as their client, which stated that an application would be made to remove the lis pendens as a matter of urgency. Further, the defendant’s solicitors had been informed by the plaintiff’s solicitors in the letter of 18th February, 2009 that, in conjunction with Redmond & Co., as solicitors for the applicant, that is to say, Mrs. Roche, they had filed an ex parte application for the following Monday for the removal of the lis pendens. Finally, by the letter dated 24th February, 2009 the defendant’s solicitors were informed that the County Registrar had made the order in Court on 23rd February, 2009 that the lis pendens be vacated and that they would be filing the order of the County Registrar in the Central Office in due course. The order of the County Registrar was effective from the moment it was pronounced in court. Mr. Cullen who conveyed the information that the order had been made, as a solicitor, is an officer of the Court. Irrespective of the fact that the vacation of the lis pendens had not been noted on the index in the Central Office, in my view, the defendant was no longer on notice that there was a lis pendens affecting the property, because he had been informed that it had been vacated. If he had completed the purchase on 1st March, 2009, in my view, he would have obtained good marketable title to the lands the subject of the contract free from any rights of Mrs. Roche.
7 5.6 Moreover, that situation could not have changed after completion but before his registration on the relevant folio. Staying with the hypothetical situation in which the defendant had completed the purchase on 1st March, 2009, if Mrs. Roche were to change her mind and subsequently decide to register a lis pendens as a burden in the Land Registry as against Folio 23035 before the transfer from the plaintiffs, as personal representatives of James Roche, deceased, in favour of the defendant was registered by the Property Registration Authority and the defendant was registered on the relevant folio as full owner with absolute title so as to get the benefit of s. 52(1) of the Act of 1964, on the authority of the decision of the Supreme Court in Coffey v. Brunell Construction [1983] I.R. 36, the defendant would have been able to procure an order directing the cancellation of the burden so registered. Therefore, the defendant would not have been at any risk of his title being subject to a claim by Mrs. Roche in completing the purchase on 1st March, 2009.
8 5.7 It was the contention of counsel for the defendant, referring to Wylie on Irish Conveyancing Law (3rd Ed.) at para. 14.06, that the duty of the plaintiffs to show good title was a duty which had two aspects, i.e. to show good title, in the sense of stating all matters essential to the title contracted to be sold, and to make good title, in the sense of proving by proper evidence those matters. Counsel also referred to the Irish authority cited by Wylie as demonstrating that distinction: Higgins v. Irish Land Commission [1960] I.R. 277. In that case, Teevan J. was hearing an appeal from the Taxing Master’s taxation of costs. The costs issue arose in circumstances where the Land Commission had been given leave to resume the holding of John Higgins and the compensation payable to Mr. Higgins was fixed at IR£408, and the order also provided that he make good title to the tenancy. There was a provision that the Land Commission would pay, inter alia, the costs of “showing title”.
9 5.8 In order to illustrate what the case was about, it is necessary to consider the title position in some detail. It had been found by an Examiner of Title in the Land Commission that Mr. Higgins was entitled to the land as personal representative of Mary Higgins, deceased. The title was traced from Patrick Higgins, who died in 1928. His widow, Mary Higgins, inherited under his will, which was proved in 1928. Mary Higgins died in 1940, having devised the land to her daughter, Margaret Higgins. Margaret Higgins died in 1952 intestate, but at that stage the will of Mary Higgins had not been proved. In fact, the existence of the will was obviously unknown and letters of administration intestate to the estate of Mary Higgins were granted to Mr. Higgins in 1956, after the death of Margaret Higgins. When the existence of the will of Mary Higgins was discovered, the grant of letters of administration intestate to her estate had to be revoked, which happened, and a grant of letters of administration with the will of Mary Higgins annexed were granted to Mr. Higgins, which was the evidence of his title. However, to get to that stage, he had to extract a grant of letters of administration intestate to the estate of Margaret Higgins.
10 5.9 The issue with which Teevan J. was concerned was whether Mr. Higgins was entitled to recover from the Land Commission the costs of extracting the grant of administration with the will of Mary Higgins annexed to replace the revoked grant and also the costs of extracting the grant of administration intestate to the estate of Margaret Higgins. An argument advanced on behalf of Mr. Higgins was that, on acquisition of lands under the Land Clauses Consolidation Act, the owners had been allowed costs against the acquiring authorities for work done in perfecting good holding titles to the requirements of the acquiring authorities, such as extracting grants of representation, which the owners would otherwise not have extracted and which were not requisite for other purposes. In the passage from the judgment of Teevan J. relied on by counsel for the defendant, he stated (at p. 279):
“A distinction is very clearly made in the resumption order betweenmaking title and showing title, a distinction which would be readily discerned by conveyancers. Whether I am correct in stating the existence of such a general discernment or not, I accept the judgment of Farwell L.J. in In re Elementary Education Acts, 1870 and 1873 [ [1909] 1 ch. 55] at p. 59:- ‘The production of the probate would be evidence of the title, the procuring of probate would be the making of the title’. For ‘production’ and ‘procuring’ may be substituted, without change of significance, ‘showing’ and ‘making title’ respectively. This does not conflict with the Irish decisions cited in relation to costs under the Lands Clauses Consolidation Act.”
Teevan J. decided that the resumption order had been framed so as to shut out all costs incurred in procuring a good title and that it was confined to costs of submitting the evidence of title and on that basis he upheld the decision of the Taxing Master which disallowed the costs of extracting the two grants in issue. Frankly, I cannot see how that decision is of any relevance to the issues before the Court.
11 5.10 Counsel for the defendant submitted that, in order to “show” that they had a clear unencumbered title to the property the subject of the contract, the plaintiffs should have furnished to the defendant’s solicitors either the written consent of Mrs. Roche to the vacating of the lis pendens or, alternatively, a copy of the perfected order of the County Registrar. The response of counsel for the plaintiffs to that proposition was that what the defendant’s solicitors had expressly sought in their letter of 16th December, 2008, namely, the “release” of the lis pendens, had been procured and the defendant’s solicitors had been informed of that fact in their letter of 24th February, 2009. It was further submitted by counsel for the plaintiffs that the defendant had gone “to ground” in early 2009 and that the defendant’s solicitors had not indicated at any time what evidence they required of the release of the lis pendens.
12 5.11 In my view, the position as at, say, 1st March, 2009 was that an order had been made vacating the lis pendens registered by Mrs. Roche and it had been made on her application. The perfection of the order was a formality which remained to be completed, as was the lodging of the memorandum in the Central Office and the recording of the vacation of the lis pendens in the register of judgments. As regards the clearing of the lis pendens off the index in the Central Office, s. 21 of the Act of 1871 referred to at para. 5.2 above provides:
“… the said registrar shall, upon the lodgment with him of a certificate that anylis pendens which may have been registered in the said office has been duly vacated by an order of the Court in which lis pendens may be, signed by the proper officer in that behalf, and which certificate such officer is hereby authorised and required to give, cause a memorandum of such vacate to be subscribed to the entry of the registry of such lis pendens specifying the date of such order, and shall sign such memorandum and upon every search made in the said office subsequently to the entry of such memorandum as aforesaid whereupon such lis pendens shall appear the entry of such memorandum shall be stated.”
In short, the County Registrar having made the order vacating thelis pendens on 23rd February, 2009, the entry of the memorandum of such vacate in the Central Office in accordance with s. 21 was mandatory. The written consent of Mrs. Roche was not necessary to perfect the plaintiffs’ title. The perfected order of the County Registrar could be obtained at any time.
13 5.12 In summary, the lis pendens had never been registered as a burden on the folio against the lands the subject of the sale on Folio 23035. It had been vacated by order of the County Registrar which inevitably would have been noted in the Register of Judgments in the Central Office. Therefore, the plaintiffs were in a position to furnish title to the defendant free from any claims by Mrs. Roche and the defendant’s solicitors had been so informed. Accordingly, the defendant was not entitled to rescind the contract, as he purported to do in the letter of 4th March, 2009 from the defendant’s solicitors to the plaintiffs’ solicitors. The contract still subsists and the plaintiffs are entitled to enforce it against the defendant.
14 5.13 In reaching the foregoing conclusion, I have not attached weight to some of the submissions made on behalf of the plaintiffs as demonstrating the plaintiffs’ entitlement to an order for specific performance. I have not attached weight to the fact that the plaintiffs were selling as personal representatives of James Roche, deceased, or to the submission that the outcome of any action pursued by Mrs. Roche against the first plaintiff could only attach to the proceeds of the sale of the lands the subject of the contract, as the defendant had a contractual right to insist on completion. Nor have I attached weight to the undertaking proffered by the plaintiffs’ solicitors to the defendant in the letter of 17th December, 2008, and the submission that the defendant should have completed the purchase in reliance on it. While there may be some merit in those submissions, in my view, it is not necessary to resort to them.
2 6.1 Subject to hearing further submissions from the parties as to the appropriate form of order to be made, I would propose making an order against the defendant for specific performance of the contract.
3 6.2 The defendant’s counterclaim will be dismissed.
Geraghty v Rohan Industrial Estates Ltd
[1988] IR 419,
Judge: HEDERMAN J.
JUDGEMENT delivered on the 19th day of July 1988 by HEDERMAN J.[Nem Diss]
This appeal is against the findings of the High Court
(a) That there was an error of law on the face of the arbitrator’s award and that the matter should be remitted to the arbitrator for a finding in the light of the question of law as determined by the Court.
(b) That the arbitrator had been guilty of misconduct of the arbitration within the meaning of s. 38 of the Arbitration Act, 1954, and that the matter should be remitted to the arbitrator to hear such evidence and submissions as might be tendered and advanced in relation to the materiality of the shortfall in acreage and/or the amount of compensation to be paid in respect thereof and to find accordingly.
In 1978 Mr. Geraghty was registered as the owner of two parcels of land being described in Folio 754 and Folio 882 of the Register of Freeholders, Co. Dublin. The Folios stated the area of each parcel to be 7 acres 3 roods and 21¾ perches statute measure, and 46 acres 3 roods and 27 perches statute measure respectively, making a total area of 54 acres 3 roods and 8¾ perches or 54.884 acres.
Rohans agreed to buy the lands described in these Folios for the sum of £2,026,000 payable as to £10,000 as deposit on the execution of a deed of the 31st March 1978 and subject to satisfactory title being shown, £490,000 within three months and the residue not later than the 31st May 1999. Upon payment of the £490,000, 16 acres were to be transferred, the land to be chosen by the purchaser. Further sites were to be transferred at the rate of £40,000 per acre.
Rohans purchased for development purposes as a business enterprise; Mr. Geraghty, whose father had purchased these and other lands in 1921, was being paid a substantial sum, roughly measured at something under £40,000 per acre.
Sometime after Rohans had entered on the lands Mr. Geraghty started proceedings for a recision of the contract of 31st March 1978 and damages, or for specific performance; Rohans applied to stay the proceedings pending arbitration to determine the total area to which the contract related. By order dated 23rd June 1981 Mr. Justice McWilliam ordered that all further proceedings herein be stayed pending the decision of the arbitrator appointed in accordance with the terms of the contract dated 31st March 1978, to determine the total areas to which the contract relates or under further order. This order was appealed to the Supreme Court which adjourned the further hearing of the appeal for the purpose of enabling the parties to carry out further work in regard to the measurement of the land the subject matter of these proceedings. That appeal came on for hearing again before this Court pursuant to notice of re-entry on the part of Mr. Geraghty (the Plaintiff in the original action) dated 24th June 1983 and on the 16th March 1983 the appeal was dismissed and the order of the High Court affirmed.
The parties agreed to an arbitrator but could agree on no more and the applicant, Rohan Industrial Estates Limited, in the Matter of the Arbitration Act, 1954as amended, delivered a special endorsement of claim on 21st October 1983 and the respondent delivered points of defence dated 27th January 1984.
The applicant claimed
(a) A finding by the arbitrator that the total area comprised in the said Folios is less than 54.804 statute acres and a finding as to what is the actual area comprised in the said Folios.
(b) A finding by the arbitrator that the total area of land already developed by the applicant and assured to the applicant or its nominees amounts to 48.081 acres statute measure.
(c) A finding by the arbitrator that the applicant is entitled to compensation for the discrepancy in the area of land so agreed to be sold by the respondent to the applicant and specifying the amount of compensation to which the applicant is so entitled.
In his statement of defence at paragraph 10 Mr. Geraghty pleaded that the applicant was not entitled to the relief sought or to any relief and at paragraph 11(c) that the applicant is not entitled to any compensation or reduction in the purchase price by reason of any shortfall in the lands sold.
The arbitrator was Mr. John F. Buckley, a prominent Dublin solicitor. Mr. Buckley conducted a hearing on the 21st May 1984 when submissions were made by counsel for the applicant and for the respondent and evidence was given by Maura White, Higher Executive Officer of the Land Commission, and by Brendan Dunne an official of the Dublin region of the Land Registry. Following that hearing the arbitrator wrote to the solicitors for the applicant and respondent on 8th June 1984 in the following terms:-
“I have now reviewed the evidence given at the hearing of the arbitration in this matter on the 21st May 1984 together with the submissions made by counsel on that occasion. The respondent pleaded at paragraph 2 of their points of defence that “said Agreement was an agreement for the sale of all the property comprised in the said folio, being a sale by reference to said folios rather that (sic) the alleged acreage thereof. The applicants at the time of the said agreement had examined and surveyed the said lands and were well aware of the nature and extent thereof”. Before I proceed further with the arbitration I would like to give the respondent an opportunity to adduce evidence in support of the statement contained in the second sentence of that paragraph and the applicant an opportunity of adducing evidence in relation to the same statement”.
A further hearing was conducted by the arbitrator on 1st August 1984 when evidence was given by Mrs Susan Bowler Geraghty for the respondent and by Mr. Patrick Rohan for the applicant.
On the 24th August 1984 the arbitrator published his finding which found:-
(1) That General Condition 21 of the Conditions annexed to the Agreement of 31st March 1978 made between the respondent of the first part and the applicant of the second part and the Industrial Credit Corporation of the third part does apply to this dispute; that the applicants were entitled to invoke the provisions of this clause.
(2) That there was an error or mistake in the Agreement in that the total of the lands comprised in Folios 754 and 882 of the Register of Freeholders at the date of the Agreement and as evidenced by the Land Registry map of these Folios produced at the time of the Agreement did not amount to 54 acres 3 roods 8¾ perches and that the respondents were not in a position to sell and give vacant possession of so much of the lands as formed part of Folios 754 and 882 but which were now included in Folios 17697, 12825, 12826 and 2440 of the Register County Dublin and that the difference in acreage amounts to 2.104 acres.
(3) That the applicants were entitled to compensation for the error or misstatement and that such compensation should be calculated by reference to the overall price per acre under the said Agreement, namely £36,968,105.
(4) That the amount of the said compensation amounts to £77,781.
In effect the arbitrator found that Mr. Geraghty, at the time of the contract was not in a position to enter into a valid contract to sell and give vacant possession of the total acreage specified in the contract. There was a shortfall of 2.104 acres and he assessed compensation accordingly at an average price per acre.
Mr. Geraghty challenged the award on the grounds –
(1) that Mr. Buckley misdirected himself in law;
(2) that his findings upon the facts were perverse and were such that no arbitrator acting reasonably could or should have made;
(3) it would be contrary to public policy to enforce the award.
At the hearing of the summons issued for this purpose he was permitted to amend the special endorsement of claim by adding further grounds to the effect that –
(4) Mr. Buckley having intimated that he would make an interim award failed to do so;
(5) he decided on the materiality of an error, omission or misstatement in the particulars or conditions of sale without affording Mr. Geraghty any opportunity to adduce evidence or make submissions on this point;
(6) he decided to award compensation to Rohans without affording Mr. Geraghty any proper opportunity to adduce evidence or to make submissions as to the quantum or any such compensation.
The learned trial Judge, Carroll J. held that there was an error of law apparent on the face of the award, and that there had been misconduct within the meaning of s. 38 by reason of a failure to hear arguments on the part of Mr. Geraghty, as he had complained, and referred the matter back to Mr. Buckley.
Rohans appeal on the grounds that there was no error of law on the face of the award and that if there was a failure to hear the other side in respect of the materiality of the misdescription and/or the quantum of damages, no valid argument could have been advanced that would have altered the findings in the award. This argument is, in my judgment, well founded.
In her first judgment, Carroll J. has detailed the events that led to the creation of new Folios which applied to small portions of lands comprised in the relevant Folios – as sales prior to 1978 had taken place, a series of new Folios had been created but, as transpired, the total acreage stated in each of the relevant Folios remained undiminished and the new Folios did not identify the acquisition of part of the lands from the relevant Folios. As a result, the acreage stated in each of the relevant Folios sustained an increasing dimension of error. Mrs. Robinson on behalf of Mr. Geraghty has sought to argue that the several strips of land which now form part of the Dublin/Belfast Road are to be included ad medium filum as parts of the land in the relevant Folios and that, so doing, the necessary acreage is to be found. This envisages the idea that Rohans, when buying, for the purpose of industrial development would or should have realised that they were buying at the average price quoted over 2 acres of land which was part of the public highway. The untenable nature of this submission is highlighted by the fact that one of those stretches of highway is some hundreds of yards further north than the northern boundary – Turnapin Lane – of the lands being sold. Having reached that conclusion, it seems to me quite unnecessary to enter into any examination of the wording of the award which Mr. Geraghty claims meant that the arbitrator found that the practice of the Land Registry, as detailed by the trial Judge, had effectively reduced the area comprised in the Folios. Carroll J. upheld this argument but this finding has been challenged in this Court.
The matter to which the Court should look is the order of Mr. Justice McWilliam of 23rd June 1984 directing the arbitrator in accordance with the contract to determine the total areas to which the said contract relates. The arbitrator has found that the vendor is unable to convey the balance of 2.104 acres of the original acreage of 54 acres 3 roods and 8¾ perches. That matter is, in my view, thus concluded.
In what seems to have been a rather belated idea, Mr. Geraghty sought relief under s. 38 of the Act of 1954, basing the claim upon the failure of the arbitrator to hear him on the issues of materiality and quantum. It would in my view have been wholly unreasonable and plainly an error of law in the face of the award if the arbitrator were to hold other than that there had been material misdescription; argument to the contrary would have been futile. Furthering their pleadings, both parties, as I have already indicated, pleaded to these issues before the hearing. When asked to speculate as to any other approach that might have been made in respect of quantum, Mr. Geraghty’s counsel was unable to suggest any unfairness in Mr. Buckley’s method of assessment. In this context, therefore, I conclude that any further argument would also have been futile. S. 38 does not make it mandatory to set aside an award on the grounds of alleged misconduct of the proceedings; in my view, the Court should refuse to set aside the award despite the finding, which I accept, as was made by the trial Judge, that the arbitrator had failed to give the opportunity to Mr. Geraghty to be heard on these two issues. It could have made no difference.
In these circumstances I would allow the appeal and uphold the decision of the arbitrator.