Transfer Dealings

Dealing with the Registered Title

Registered titles are transferred and otherwise altered by way of a dealing.  A ‘dealing’ is an application to the Land Registry to change the registered title, for example, a transfer on sale or transmission vesting the title in a successor on death or some other.

The date of the application for registration determines its priority relative to other competing applications. If the dealing is rejected, it loses priority and must be re-lodged in order to be completed. If it is queried and the query is satisfied in time, it will retain its priority.

The dealing must be in the prescribed form.  It must comply with the legal requirements applicable to the subject matter of the application.  For example, a transfer of land requires a properly executed transfer deed by the registered owner together with its stamping certificate. The transfer of ownership is effected by way of a deed of transfer in the prescribed form.

Consent may be required under the Family Home Protection Act in the case of a sale by one spouse or civil partner of the family home or shared home.  Formerly, the consent of the Land Commission was required to the subdivision of agricultural land. It was also required, in many cases, to the sale of agricultural property transfers to companies or non-residents.

A  dealing for registration must be accompanied by the requisite fee prescribed by law.  Fees are prescribed by Ministerial order made under the Registration of Title Act.

Execution

The Land Registry is entitled to act on the basis that deeds and documents lodged with it,  which appear to be properly executed, are so executed.  Where documents are executed by a person who purports to be officers of the company and the corporate seal is affixed, the Registrar is entitled to assume it is duly executed.

A company must produce a copy of a Certificate of Registration when it first becomes applies to become the owner of registered property.  Where the company has been incorporated outside the State, the equivalent foreign certificate must be produced.  On subsequent transfers, the existence of the company will be recognised and will not generally be necessary to re-lodge the certificate of registration.

Dealing /Instruments

The form of basic land registry transfer is relatively simple.  The general requirements for a deed are modified by Land Registry requirements that apply.  Land Registry requirements have never required words of limitations, formerly required for the grant and transfer of unregistered freehold title.

Documents for registration of a transfer or the grant of a new property interest must be executed as a deed. This requires that it be in a particular form and be witnessed.  The requirement for a witness applied in respect of Land Registry title prior to it being made a requirement for all deeds after the 2009 land law reforms.

Documents lodged must be properly stamped.  As with stamp duty, generally, there is an obligation on public registrars, including the Registrar of Titles and the Land Registry, to ensure that stampable documents lodged in dealings are properly stamped. See the section on stamp duty.

Depending on the type of title and the type of application, there may be requirements to lodge other documents, such as evidence of compliance with a restriction on the title or with applicable legislation.

Particular Parties

Where a joint owner has died, an application may be made to change the register by showing the survivorship of the joint tenancy on proof of death of the other and the absence of severance.

The registered owner has the primary right to deal with the land.  He must have legal capacity so that he is over 18 years old and have mental capacity. It is presumed that he has mental capacity in the absence of evidence to the contrary.  The title may be affected by inhibitions, cautions, or statutory restrictions which have been noted on the title, which affect the ability of the registered owner to deal with the title.

Non-owners may have the power to or be entitled to deal with the title.  In particular, charges (mortgagees) have powers by statute and under the terms of their charge, subject to certain conditions, to sell the property and defeat lower-ranking charges/burdens in the process.

The title may be cancelled and destroyed entirely in certain circumstances. A leasehold title will terminate if the lease is forfeited by the landlord for breach of its covenants.

Where a person has transferred land,  but the transferee has not yet become or applied to be registered, the transferee may deal with (e.g. sell) his interest as the person entitled to be registered.  The further transferee must lodge both transfers in the Land Registry together, in order to become registered as the owner.

A person may transfer property, or his rights in the property, while reserving rights in his favour, such as a right of residence.  In this case, the transferee must assent to the registration of that right as a burden on the transferee’s interest.  The assent should be incorporated in the transfer deed.

Maps

Where the transfer is of an entire folio or the whole of a distinct property shown separately on the folio (the folio being made up of more than one holdings, as is sometimes the case), no map is required.  The property is already defined in the Land Registry and it may be transferred by reference to the entire or the existing separately defined part of it.

Where the property has been subdivided, a map which complies with Land Registry requirements must be attached to the deed and must define the sub-divided property. The Ordnance Survey publish maps that are approved for use in Land Registry transfers. The map is usually the highest available scale OS map.

The first generation of maps used by the Land Registry was the 6″ to 1-mile map.  This was replaced over time by the 1:2500 scale. The Land Registry worked for many years on the basis of the Ordnance Survey 1:2500 map or a 25″ map.  Over the last 40 years, this has been replaced in most urban areas by the 1:1000 scale map.

The Ordnance Survey map shows physical features and boundaries.  This does not necessarily conform with legal title. However, it will conform in most cases.

Over time, the operation of the Statute of limitations may settle the boundaries.  The boundary lines on Land Registry maps, which usually follow OS features,  are not definitive in relation to the legal boundary.  The Act allows the adjoining owners to agree to make boundaries definitive.  The legal boundary is determined in accordance with general principles.

Land registry maps were originally available as physical maps at the principal offices. The maps have now been digitised and are available on the Land Registry’s website. The official copy map and file plan are still in paper form, although this is likely to change with an electronic official copy Land Registry map/file plan.

Multi-Units

There are special requirements for maps for development schemes and for multi-storey buildings.  In the case of a development scheme with more than a handful of units, a single map must be prepared showing all units within the scheme.

This facilitates the mutual compatibility of future land transfers. Once an approved Land Registry scheme map issues, a photocopy is used with each deed in the development and the relevant unit is identified on the scheme map rather than precisely marked as such.

In the case of multi-storey units such as apartments, commercial unit blocks etc., maps showing the location,  elevations and floor plans must be marked in accordance with prescribed requirements. The plans must show OS coordinates.     A scheme map is required for new development.

Overreaching

There are a number of mechanisms by which title to property may be extinguished.  The title may be lost when the property is sold by a mortgagee.  It may be sold in pursuance of a court judgment.  Statutory provisions may allow for its acquisition or transfer without the consent of the registered owner.

Depending on the nature of the power or circumstance, existing burdens and rights affecting the registered title may be overreached or destroyed.  On a sale by a mortgagee, lower-ranking charges and encumbrances are overreached and cancelled.