Transfer Dealings
Registration of Title Act
Freehold Land
Classes of title which may be registered.
F47[33.— (1) On registration of the ownership of unregistered freehold land, a person may be registered with an absolute title, a qualified title or a possessory title.
(2) An application for registration may be made by such person, and shall be in such form and accompanied by such evidence of title, as may be prescribed.
(3) The application shall be for registration with an absolute title, a qualified title or a possessory title.
(4) The applicant shall be registered as owner with an absolute title where the title is approved by the Authority.
(5) The applicant may be registered as owner with a qualified title where—
(a) it appears to the Authority that the title can be established only for a limited period or only subject to certain reservations, and
(b) the Authority, by an entry in the register, excepts from the effect of registration any right—
(i) arising before a specified date,
(ii) arising under a specified instrument, or
(iii) otherwise particularly described in the register.
(6) The applicant may be registered as owner with a possessory title on giving such evidence of title as may be prescribed.
(7) If, on an application for registration under this section, the Authority is not satisfied that the grant of the title applied for would be warranted or appropriate, it may, subject to subsection (8), register the applicant as owner with such one of the other titles provided for in this section as it considers would be warranted or appropriate.
(8) Where registration of ownership is not compulsory, the Authority may not—
(a) on an application for registration with an absolute title, register the applicant as owner with a qualified title without the applicant’s consent, or
(b) on an application for registration with a title other than a possessory title, register the applicant as owner with a possessory title without such consent. ]
Registration of burdens.
34.—On first registration of ownership of freehold land, F48[the Authority] shall enter on the register all burdens which appear on examination of the title to affect the land, except those to which, though not registered, the land is subject by virtue of section 72.
Registration subject to, or free from, equities.
35.—Where, immediately before the commencement of this Act, the registration of ownership of freehold land was noted as being subject to any rights or equities, pursuant to subsection (3) of section 29 of the Act of 1891, the title to the land shall be deemed to be a possessory title. Where it was not so noted, the title shall, subject to section 36, be deemed to be an absolute title.
Effect of previous registration with qualified or possessory title.
36.—Where, immediately before the commencement of this Act, the registration of ownership of freehold land was with a qualified or possessory title, the title to the land shall be deemed to be a qualified or possessory title, as the case may be, within the meaning of this Act.
Effect of registration with absolute title.
37.—(1) On registration of a person as full owner of freehold land with an absolute title, an estate in fee simple in the land, together with all implied or express rights, privileges and appurtenances belonging or appurtenant thereto, shall vest in the person so registered.
(2) F49[…]
(3) F50[…] the estate of the registered owner shall be subject to—
(a) the burdens, if any, registered as affecting the land, and
(b) the burdens to which, though not registered, the land is subject by virtue of section 72,
but shall be free from all other rights, including rights of the State.
(4) If the registered owner holds the land as trustee, nothing in this section shall affect his duties or liabilities as such trustee.
Effect of registration with possessory title.
38.—(1) The registration of a person as first registered F51[…] owner of freehold land with a possessory title shall not affect or prejudice the enforcement of any right adverse to or in derogation of the title of that person and subsisting or capable of arising at the time of registration, but, save as aforesaid, shall have the same effect as registration with an absolute title.
(2) “Right” in subsection (1) includes any rights or equities existing by reason of the interest of such owner being deemed to be a graft upon his previous interest in the land, and a reference in any other enactment to land registered subject to equities shall include land the registration of which is subject to any such rights or equities by virtue of that subsection.
Effect of registration with qualified title.
39.—The registration of a person as first registered F52[…] owner of freehold land with a qualified title shall have the same effect as registration with an absolute title, save that registration with a qualified title shall not affect or prejudice the enforcement of any right appearing by the register to be excepted.
Leasehold Interests
Classes of title which may be registered.
F53[40.— (1) On registration of the ownership of an unregistered leasehold interest, a person may be registered with an absolute title, a good leasehold title, a qualified title or a possessory title.
(2) An application for registration may be made by such person, and shall be in such form and accompanied by such evidence of title, as may be prescribed.
(3) The application shall be for registration with an absolute title, a good leasehold title, a qualified title or a possessory title.
(4) The applicant shall be registered as owner with an absolute title where the title to the leasehold interest, the freehold estate and any intermediate leasehold interest is approved by the Authority.
(5) The applicant shall be registered as owner with a good leasehold title where the title to the leasehold interest is approved by the Authority.
(6) The applicant may be registered as owner with a qualified title where—
(a) it appears to the Authority that the title, either of the lessor to the reversion or of the lessee to the leasehold interest, can be established only for a limited period or only subject to certain reservations, and
(b) the Authority, by an entry in the register, excepts from the effect of registration any right—
(i) arising before a specified date,
(ii) arising under a specified instrument, or
(iii) otherwise particularly described in the register.
(7) The applicant may be registered as owner with a possessory title on giving such evidence of title as may be prescribed.
(8) If, on an application for registration under this section, the Authority is not satisfied that the grant of the title applied for would be warranted or appropriate, it may, subject to subsection (9), register the applicant as owner with such one of the other titles provided for in this section as it considers would be warranted or appropriate.
(9) Where registration of ownership of title is not compulsory, the Authority may not—
(a) on an application for registration with an absolute title or a good leasehold title, register the applicant as owner with a qualified title without the applicant’s consent, or
(b) on an application for registration with a title other than a possessory title, register the applicant as owner with a possessory title without such consent.]
Registration of burdens.
41.—On first registration of ownership of a leasehold interest, F54[the Authority] shall enter on the register all burdens which appear on examination of the title to affect the interest, except those to which, though not registered, the interest is subject by virtue of section 72.
Previous registration with, and without, note as to lessor’s title.
42.—Where, immediately before the commencement of this Act, the registration of ownership of a leasehold interest contained a note to the effect that the title of the lessor to make the lease had been investigated and found to be good and valid, the title to the leasehold interest shall be deemed to be an absolute title. Where there is no such note, the title shall, subject to section 43, be deemed to be a good leasehold title.
Effect of previous registration with qualified or possessory title.
43.—Where, immediately before the commencement of this Act, the registration of ownership of a leasehold interest was with a qualified or possessory title, the title to the land shall be deemed to be a qualified or possessory title, as the case may be, within the meaning of this Act.
Effect of registration with absolute title.
44.—(1) On registration of a person as full owner of a leasehold interest with an absolute title, the leasehold interest, together with all implied or express rights, privileges and appurtenances attached to it, shall vest in the person so registered.
(2) F55[…]
(3) F56[…] the interest of the registered owner shall be subject to—
(a) the burdens, if any, registered as affecting the interest,
(b) the burdens to which, though not registered, the interest is subject by virtue of section 72, and
(c) all implied and express covenants, obligations and liabilities incident to the registered interest,
but shall be free from all other rights, including rights of the State.
(4) If the registered owner holds the interest as trustee, nothing in this section shall affect his duties or liabilities as such trustee.
Effect of registration with good leasehold title.
45.—The registration of a person as first registered F57[…] owner of a leasehold interest with a good leasehold title shall not affect or prejudice the enforcement of any right adverse to or in derogation of the title of the lessor to grant the lease, but, save as aforesaid, shall have the same effect as registration with an absolute title.
Effect of registration with possessory title.
46.—The registration of a person as first registered F58[…] owner of a leasehold interest with a possessory title shall not affect or prejudice the enforcement of any right (whether in respect of the lessor’s title or otherwise) adverse to or in derogation of the title of that person and subsisting or capable of arising at the time of registration but, save as aforesaid, shall have the same effect as registration with an absolute title.
Effect of registration with qualified title.
47.—The registration of a person as first registered F59[…] owner of a leasehold interest with a qualified title shall not affect or prejudice the enforcement of any right appearing by the register to be excepted, but, save as aforesaid, shall have the same effect as registration with an absolute title or a good leasehold title, as the case may be.
Transfer of land from leasehold to freehold register.
48.—Where a registered leasehold interest is converted under the provisions of any Act into a fee farm grant or grant in perpetuity, F60[the Authority] shall note on the register in the prescribed manner the fact of such conversion, and provision shall be made by general rules for the transfer, on the prescribed examination of title, of land from the register of owners of leasehold interests to the register of owners of freehold land, but, until such transfer is made, the registered owner of the leasehold interest shall not, under the provisions of this Act, have any further or other title to the land than he would have had if the leasehold interest had not been so converted.
Effect of words of transfer.
123.—(1) An instrument of transfer of freehold registered land without words of limitation, or any equivalent expression, shall pass the fee simple or other the whole interest which the transferor had power to transfer in the land unless a contrary intention appears in the instrument.
(2) An instrument of transfer of freehold registered land to a corporation sole by his corporate designation without the word “successors” shall pass to the corporation the fee simple or other the whole interest which the transferor had power to transfer in the land unless a contrary intention appears in the instrument.
(3) In an instrument of transfer of registered land a resulting use or trust for the transferor shall not be implied merely by reason that the property is not expressed to be transferred to the use or benefit of the transferee.
F161[(4) An instrument granting, or containing a grant or reservation of, an easement or a profit à prendre out of registered freehold land without words of limitation or any equivalent expression shall pass or reserve the whole estate which the grantor had power to grant or reserve in the easement or profit à prendre.
(5) An instrument granting, or containing a grant or reservation of, an easement or a profit à prendre out of registered freehold land to a corporation sole by its corporate designation without the word ‘successors’ shall pass or reserve the whole estate which the grantor had power to grant or reserve in the easement or profit à prendre.
(6) Subsections (1), (2) and (3) of this section apply only to instruments of transfer executed on or after 1 January 1967, and subsections (4) and (5) thereof apply only to F162[instruments] executed after the commencement of section 70 of the Registration of Deeds and Title Act 2006.]
S.I. No. 55/2022 –
Electronic Commerce Act 2000 (Application of sections 12 to 23 to Registered Land) Regulations 2022
I, EAMON RYAN, Minister for the Environment, Climate and Communications, in exercise of the powers conferred on me by sections 3 and 10 of the Electronic Commerce Act 2000 (as adapted by the Communications, Climate Action and Environment (Alteration of Name of Department and Title of Minister) Order 2020 ( S.I. No. 373 of 2020 )), and after consultation with the Minister for Enterprise, Trade and Employment (as adapted by the Business, Enterprise and Innovation (Alteration of Name of Department and Title of Minister) Order 2020 (S.I. No. 519/2020)), the Minister for Finance, the Minister for Housing, Local Government and Heritage (as adapted by the Housing, Planning and Local Government (Alteration of Name of Department and Title of Minister) Order 2020 ( S.I. No. 408 of 2020 )) and the Minister for Justice (as adapted by the Justice and Equality (Alteration of Name of Department and Title of Minister) Order 2020 ( S.I. No. 452 of 2020 )), hereby make the following regulations:
1. These Regulations may be cited as the Electronic Commerce Act 2000 (Application of sections 12 to 23 to Registered Land) Regulations 2022.
2. In these Regulations “registered land” has the meaning given to it by section 3(1) of the Registration of Title Act 1964 (No. 16 of 1964).
3. Sections 12 to 23 of the Electronic Commerce Act 2000 shall apply to the law governing the manner in which an interest in registered land may be created, acquired, disposed of or registered.
/images/ls
GIVEN under my Official Seal,
9 February 2022.
EAMON RYAN
Minister for the Environment, Climate and Communications.
Cases
Guckian v Brennan
[1981] IR 478,Gannon J.
Judgment of Gannon J. delivered the 3rd day of march 1980
The plaintiffs are a husband and wife who are joint owners of a dwelling house at 251 Grangemore, Raheny, Dublin 5, comprising a plot of ground of 9 perches in the townland of Grange, Barony of Coolock the subject matter of Folio 19851L of the Register of Leasehold Interests for the County of Dublin. The leasehold interest was created by lease dated the 28th of April 1972 from Merchant Banking Limited to Edward Parsons for the term of 250 years from the 29th of September, 1969 at the yearly rent of £20. Edward Parsons was registered as full owner on the 21st of August 1972 subject to a charge since released and to Sections 12 and 45 of the Land Act 1965. Sections 12 and 45 of the Land Act 1965are both provisions prohibiting or restricting the alienation of land or of any part of it. The plaintiffs became registered as full owners subject to these statutory provisions and to a charge in favour of First National Building Society on the 18th of August 1978 by virtue of Land Registry Instrument No. R8175/78 upon transfer from Edward Parsons. On the 7th December, 1979 the plaintiffs entered into an agreement to sell the property to the defendants. In the course of investigation of the title the purchasers required the vendors to furnish evidence that the transfer by assignment to them by Edward Parsons, the registered owner and original lessee, is unaffected by Section 3 of the Family Home Protection Act 1976. This I understand is the purport of Requisition 63 (7) in the Requisitions on Title, as submitted in lieu of a more precise additional sub paragraph in Requisition No. 52. The plaintiffs’ reply to this Requisition is:
“Not necessary. The vendor has been registered as full owner of the property in the Land Registry and the register is conclusive”.
The purchasers are dissatisfied with this reply. On this issue the plaintiffs applied to the Court by a special summons under the provisions of Section 9 of the Vendor and Purchaser Act 1874 for a declaration that this requisition has been sufficiently answered and a good title shown.
The necessity for a requisition of this nature is a consequence of the passing on the 12th July 1976 of the Family Home Protection Act (No. 27) 1976. As the plaintiffs are joint owners the defendants are not concerned with the possible effect of the 1976 Act on their contract with the plaintiffs or on the intended instrument of transfer to them. But the defendants apprehend that if the assurance by Edward Parsons to the plaintiffs was affected by the 1976 Act so as to have been avoided or invalidated under Section 3 of that Act the plaintiffs could not make good title on this sale. Because their title is registered under the provisions of the Registration of Title Act 1964the plaintiffs consider that the defendants’ enquiry is unnecessary and precluded by virtue of Sections 31 and 55 of the 1964 Act.
The Registration of Title Act 1964by Section 5 repealed the Local Registration of Title (Ireland) Act 1891 and the Registration of Title Act 1942, but did not depart from the purpose or scheme of those Acts and re-enacted the basic sections. Section 31 of the 1964 Act corresponds to Section 34 of the 1891 Act and in sub-section (1) provides:-
“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 or burden 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 matter relating to the land; but nothing in this Act shall interfere with the jurisdiction of any Court of competent jurisdiction based on the ground of actual fraud or mistake, and the Court may upon such ground make an Order directing the Register to be rectified in such manner and on such terms as it thinks just.”
Sub-section (2) of Section 31 is not pertinent in these proceedings. Section 51 provides for the mode of transfer of ownership and relates to the effect of registration of the transferee as full owner of the property registered on the Register of Leaseholds. Section 55 sub-section (1) is as follows:
“On the registration of a transferee of a leasehold interest as full owner with an absolute title, the instrument of transfer shall operate as a conveyance by deed within the meaning of the Conveyancing Acts, and there shall vest in the registered transferee the leasehold interest so transferred, together with all implied or express; rights, privileges and appurtenances attached to it, subject to -“
a (a)the burdens, if any, registered as affecting the interest,
b (b)the burdens to which, though not registered, the interest is subject by virtue of Section 72, and
(c) all implied and express covenants, obligations and liabilities “incident to the interest transferred, but free from all other rights, including rights of the State”.
The matter of concern to both plaintiffs and defendants in these proceedings as vendors and purchasers respectively of registered leaseholds is whether or not such interest, of a spouse who is not an owner, as may arise under the Family Home Protection Act 1976is a burden coming within paragraph (b) sub-section (1) of Section 55 Or falls within “all other rights” free from which the full ownership with an absolute title may be registered. Such last mentioned rights may affect the registered ownership by virtue of sub-section (2) of Section 55 in any case in which the registration is effected pursuant to a transfer made without valuable consideration. The unregistered burdens which by virtue of Section 55 (1) (b) affect the transferee from the registered owner of leasehold registered property are set out in Section 72 of the Registration of Title Act 1964. Sub-section (1) of Section 72 provides:
“Subject to sub-section (2), all registered land shall be subject to such of the following burdens as for the time being affect the land, whether those burdens are or are not registered, namely -” Of the seventeen classifications which follow only those at paragraphs (j) and (q) were referred to in the course of this hearing. These read as follows:
“(j) the rights of every person in actual occupation of the land or in receipt of the rents and profits thereof, save where, upon enquiry made of such person, the rights are not disclosed; and (q) burdens to which Section 59 or 73 applies”.
Sub-section (3) of Section 72 provides:
“Where the existence of any such burdens is proved to the satisfaction of the Registrar, he may, with the consent of the registered owner or applicant for registration, or in pursuance of an order of the Court, enter a notice thereof on the register.”
As sub-section (2) of Section 72 deals only with paragraphs(a), (b) and (c) of sub-section{l)it is unnecessary to consider it. As Section 73 deals with mines and minerals it is not pertinent in these proceedings. But Section 59 is of importance. It is as follows:
2 “(1) Nothing in this Act shall affect the provisions of any enactment by which the alienation, assignment, subdivision or subletting of any land is prohibited or in any way restricted.
(2) It shall be the duty of the Registrar to note upon the register in the prescribed manner the prohibitive or restrictive provisions of any such enactment; but such provisions shall be, though not registered, burdens on the lands under Section 72.”
Section 3 of the Family Home Protection Act 1976, in cases, to which that Act applies, contains provisions by which the alienation of any land is restricted and may be prohibited. Sub-section (1) of that Section is as follows;
“Where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, then, subject to sub sections (2) and (3) and Section 4, the purported conveyance shall be void.”
The expression “family home” is defined in Section 2 (1) of the 1976 Act as follows:
“In this Act “family home” means, primarily, a dwelling in which a married couple ordinarily reside. The expression comprises, in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides, or, if that spouse has left the other spouse, ordinarily resided before so leaving”
The word “dwelling” is defined in sub-section (2) of Section 2 in terms to include any portion of ground “attached to and usually occupied with” the dwelling. Having occupation of the property as a dwelling is therefore an essential qualification for the spouse seeking to rely on the provisions in the 1976 Act restricting alienation of the property. By Section 13 of the Family Home Protection Act 1976it is enacted that: “Section 59 (2) of the Registration of Title Act, 1964(which refers to noting upon. the register provisions of any enactment restricting dealings in land) shall not apply to the provisions of this Act”.
The reason the defendants consider the reply to their requisition to be inadequate is that the property the subject of the contract now is a family home and may have been a “family home” at the time of transfer to and registration of the plaintiffs as owners on the 18th of August 1978. The defendants apprehend that Edward Parsons may have been a married man, and if the previous written consent of his wife had not been obtained the transfer by Edward Parsons to the plaintiffs would, have been in contravention of Section 3 (1) of the Family Home Protection Act 1976and therefore was void as a conveyance, and Section 31 of the 1964 Act, as they say affords no protection. The plaintiffs claim that they were purchasers for valuable consideration from and paid the full value to, Edward Parsons and as there was no fraud involved they were under no obligation to make enquiry of Edward Parsons, and they rely on sub-section (3) of Section 3 of the Family Home Protection Act 1976. For the plaintiffs Mr. Garland submits that such right as a spouse, who is not an owner, may have by virtue of the 1976 Act is in the nature of a personal right only, is founded upon occupation, and is enforceable only against the spouse in whom title is vested and remains vested in the event of Section (3) (1) of the 1976 Act applying to a purported transfer. He argues that a spouse in occupation of property of which only the other spouse is owner has not the sort of right which constitutes a burden under Section 72 (1) (j) of the Registration of Title Act 1964. He further contends that Section 13 of the Family Home Protection Act 1976expressly precludes Section 59 of the 1964 Act applying in a manner which would bring the provisions of the 1976 Act within Section 72 (1) (q) of the Registration of Title Act 1964
For the defendants Mr. Brady submits that the registered owner can not transfer the property free from the burdens referred to in Section 55 (1) (a) and (b) nor the terms of the lease as indicated in paragraph (c) of that sub-section. The registration of ownership is subject to these burdens and the conclusiveness of the register as evidence of title as provided in Section 31 is subject to these burdens. Paragraph (b) of sub-section (1) of Section 55 refers to Section 72 as creating burdens to which registration is subject whether they be registered or not, and in paragraph (2) of sub-section (1) of Section 72 are included; burdens to which Section 59 applies. Mr. Brady submits that whether the right of a spouse, not being an owner, to occupation of a property with title registered under the Registration of Title Act 1964be a personal right or not the restrictions on alienation in protection of that right contained in Section 3 (1) of the Family Home Protection Act 1976are a burden coming within Section 59 of the 1964 Act. He argues that Section 13 of the 1976 Act merely relieves the Registrar of Titles of the duty of noting on the register the restrictive provisions of the 1976 Act, but nevertheless brine them to his attention. He also contends that upon the transfer from Edward Parsons the plaintiffs were obliged to make enquiry in relation to Section 3 of the Family Home Protection Act 1976as to whether or not he had a spouse whose consent would be required because the definitions in that Act and the provisions of sub-sections(5), (6) and (7) of Section 3 precluded them from relying on the absence of notice.
These arguments raise far reaching questions of increasing significance in conveyancing practice on which Counsel have been unable to find precedents in reported Irish cases. Whether a wife residing with her husband could be said to be in actual occupation of the house in which they live was considered in the House of Lords as reported in National Provincial Bank Limited .v. Ainsworth 1965 A.C. 1175. That was a case under Section 70 (1) of the Land Registration Act 1925 in England of which paragraph (g) corresponds with paragraph (j) of Section 72 (1) of the Registration of Title Act 1964. The reasoning in the opinions of the Lords in that that the right is a non-transmissible personal one and not a proprietary one is compelling. The following extract from the opinion of Lord Cohen at page 1228 in reference to Section 70 (1) (g) of the English Act is equally appropriate to Section 72 (1) (j) of the 1964 Act and it is as follows:-
“As Russell L.J. in the Court below pointed out it is the rights of a person in occupation which constitute the overriding interest not the mere fact of occupation, and I agree with Russell L.J. that Section 70 is dealing in all its parts with rights in reference to land which have the quality of being capable of enduring through different ownerships of the land according to normal conceptions of title to real property. The right on which the respondent must rely is a personal right as against her husband and is not of the quality to which Russell L.J. refers. In my opinion, therefore, it does not constitute an overriding interest within Section 70 (1)(g).”
The definitions in Section 2 of the Family Home Protection Act 1976may well have been drawn to confer on a spouse a more acceptable legal concept of interest in the family property than that to be found in the opinion of Lord Hodson in the same case in 1965 A.C. 1175 at page 1220, But the 1976 Act does not create, nor invest a married person with, any right affecting land or property of the nature of an interest in land which could fall within any of the classifications of burdens within Section 72 (1) of the Registration of Title Act 1964. Such right as is conferred is a right affecting the instrument of transfer and its validity. If it be invalid the transfer is ineffective, but the spouse for whose benefit it is rendered ineffective obtains no estate or interest in the land or property the subject of the transfer which can affect the ownership or title to the property. If the instrument of transfer be invalid there can be no transmission of ownership. The purpose of the Family Home Protection Act 1976and the nature of the right conferred on a non-consenting spouse who is not the owner of the property intended to be alienated has been set out in the recent judgment of the Supreme Court in N. .v. M. (unreported delivered 23rd October 1979). In reference to Section 3 (1) of the Family Home Protection Act 1976Henchy J. said in the course of his judgment as follows:-
The basic purpose of the sub-section is to protect the family home by giving a right of avoidance to the 3pouse who was not a party to the transaction. It ensures that protection by requiring, for the validity both of the contract to dispose and of the actual disposition, that the non-disposing spouse should have given a prior consent in writing. The point and purpose of imposing the sanction of voidness is to enforce the right of the non-disposing spouse to veto the disposition by the other spouse of an interest in the family home. The sub-section can not have been intended by Parliament to apply when both spouses join in the “conveyance” In such event no protection is needed for one spouse against an unfair and unnotified alienation by the other of an interest in the family home. Section 3 (1) is directed against unilateral alienation by one spouse. When both spouses join in the “conveyance”, the evil at which the sub-section is directed does not exist.”
From this it is clear that a purported instrument of transfer to which sub-section (1) of Section 3 of the 1976 Act applies i3 incapable of conferring any title to or interest in a property which is or had constituted a family homo. But it is also clear from this statement that the circumstances which cause Section 3 (1) of the 1976 Act to apply depend on factors which do not relate to title or ownership or conveyancing practices and may arise in relation to some periods of ownership and not to others. The registered property may be a family home only if and when a married couple ordinarily reside in it, and it is then only that the restrictive provisions of Section 3 of the Family Home Protection Act 1976would apply. These circumstances may change during the course of differing periods of registered ownership over successive periods some registered owners may not be married, some may be married couple3 who may be joint owners. The right of a spouse under S.3 of the 1976 Act is not a burden within S. 72 (1) (j) of the 1964 Act.
It should be noted that Section 72 of the Registration of Title Act 1964does not create burdens, it merely classifies burdens created aliunde. This is of importance in relation to paragraph (q) of Section 72 (1) of the 1964 Act. That paragraph includes under Section 72 (1) as burdens which though unregistered will affect the registered ownership those burdens which are created by Section 59 or by Section 73. In Section 59 the creation of the burden is effected in sub-section (2), and in Section 73 the creation of the burden is effected in sub-section (3). Sub-section (1) of Section 59 of the 1964 Act takes in the provisions of Section 3 (1) of the Family Home Protection Act 1976in all cases where that Act applies, and, but for sub-section of Section 59 those provisions would not fall within paragraph (a) or paragraph (b) of Section 55 (1) of the 1964 Act. Thus likewise the restrictions and prohibitions contained in the Land Acts of 1923, 1939, 1946and 1965come within the ambit of sub-section (1) of Section 59 and are created burdens within Section 72 (1) (q) by sub-section 2 of Section 59 of the 1964 Act without the aid of any specific sections in those Acts. themselves.
But the Family Home Protection Act 1976has a specific Section which appears to have misled the defendants. Section 13 of the Act is as quoted above. Notwithstanding the Parenthesis contained in that Section the non-application of Section 59 (2) there expressed comprises the entire of sub-section (2) of Section 59. That sub-section has two distinct provisions and Section 13 does not specify that it should take effect on one only of them. Section 59 (2) imposes a duty on the Registrar, and creates the burden, and if it was intended that Section 13 would do no more than relieve the Registrar of the duty it would have said so in clear terms.
That Section 13 was intended to take the provisions of the 1976 Act out of the scope of Section 59 and of Section 72 of the 1964 Act is understandable when the provisions of Section 3 sub-sections (3),(5),(6), and (7) of the Family Home Protection Act 1976are considered. In Somers .v. Weir 113 I.L.T.R. 81 the affect of these sub-sections has been pointed out by the Supreme Court as increasing the burden of imputed notice to a purchaser. In the course of his judgment Henchy J. says (at page 88)
“The question whether a purchaser has acted in good faith necessarily depends on the extent of his knowledge of the relevant circumstances. In earlier tines the tendency war to judge a purchaser solely by the facts that had actually come to his knowledge. In the course of time it came to be held in the court of Chancery that it would be unconscionable for the purchaser to take his stand on the facts that had come to his notice to the exclusion of those which ordinarily prudence or circumspection or skill should have called to his attention. When the facts at his command beckoned him to look and enquire further, and he refrained from doing so, equity fixed him with constructive notice of what ho would have ascertained if he had pursued the further investigation which a person of reasonable care and would have felt proper to make in the circumstances. He would not be allowed to many “I acted in good faith, in ignorance of those facts, of which I learned only after I took the conveyance”, if those facts ware cue as a reasonable man in the circumstances would have brought with thin his; knowledge.
When the Judicature (Ireland) Act 1877 brought the rules of Equity “into play in all Courts, the equitable doctrine of notice was given supremacy. Further, it was given statutory expression in Section 3 of the Conveyancing Act 1882. For the purposes of this case, the relevant parts of that Section are:
(1)A purchaser shall not be prejudicially affected by notice of any instrument, fact or thing unless (i) it is within his own knowledge, or would have come to his knowledge if such enquiries and inspections had been made as ought reasonably to have been made by him; or (ii) in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his counsel, as such, or of his solicitor, as such, or would have come to the knowledge of his solicitor or other agent, as such, if such enquiries and inspection had been made as ought reasonably to have been made by the solicitor or other agent.
That Section 3 of the Family Home Protection Act 1976is to be operated within this doctrine of notice is emphasised by the fact that Section 3 (7) amends Section 3 of the Conveyancing Act 1802 by deleting from it the above italicised words thus extending the reach of constructive notice.
“But the purpose of the registration of title under the scheme provided by the Acts of 1891 and 1942 and now by the 1964 Act is to avoid the application of the equitable doctrine of constructive or imputed notice. (See re Walsh 3916 1 I.R. 40). It is provided at Section 31 (1) of the 1964 Act which I have already quoted that the register shall be conclusive evidence of the title of the owner to the land as appearing on the register and of any burden on it as appearing thereon and that that title shall not in the absence of fraud be in any way affected in consequence of the owner having notice of any deed, document or matter relating to the land. Sections 55 and 72 prescribe the manner of giving notice of interests adversely affecting ownership of the property transmitted to new ownership. There are provisions for rectification of the register and Section 97 (1) enables any person entitled to any right into or over registered land or a registered charge, on producing an affidavit in a prescribed form of his right to lodge a caution with the registrar to the effect that no dealing with the land or charge is to be had on the part of the registered owner until notice had been served on that person.
If Section 13 of the 1976 Act had been omitted from that Act sub-section (2) of Section 59 of the 1964 Act would apply to each transfer of registered land when the circumstances require the application of Sections 2 and 3 of the Family Home Protection Act 1976and would cease to apply to the same lands when such circumstances cease to exist. In that situation the doctrine of constructive notice in it3 strictest application under Section 3 (3) (6) and (7) would apply in some circumstances and not at all in others in relation to the same registered title. This would defeat the purpose and make highly impractical the provisions of the Registration of Title Act 1964. In my opinion Section 13 of the 1976 Act says and means that the provisions of that Act restrictive of alienation in so far as they nay affect registered land are not burdens created by Section 59 and do not come within Section 72 (1) (q) of the Registration of Title Act 1964.
In the result I am of opinion that on every sale of registered land where circumstances may indicate that it would be prudent for an intending purchaser to make enquiries such as are indicated in the Family Home Protection Act 1976, these enquiries should be made in relation to the particular intended contract of sale and the intended instrument of transfer to the intending purchaser. But it is my opinion that beyond that the intending purchaser need not and should not go. That is to say Section 31 (1) of the Registration of Title Act 1964affords a sufficient protection of the vendor and the intending purchaser in relation to all prior transactions of registered ownership on the title as appearing. The duty of ensuring that any instrument of transfer is valid and effective upon which to register a transmission of ownership falls upon the Registrar at the time of the registration and the register thereafter, in the absence of fraud, affords conclusive evidence of the validity of the title.
Accordingly I think it appropriate in this case to make the Order sought declaring that the requisition referred to ha3 been sufficiently answered by the plaintiffs as vendors.