Unregistered Title

Overview

With unregistered title, proof of title or ownership depends on the deeds. The deeds themselves are registered in the Registry of Deeds.The title is not registered in the Land Registry.

The system of unregistered title is being phased out with the compulsory registration of title in all counties as of June 2011. However it will still remain of considerable importance for many years as the obligation to register in the Land Registry does not arise until the first sale of unregistered title land, after the date of compulsory registration.

At present, much land in urban areas remains with Registry of Deeds title. In contrast, rural lands tend to be registered in the Land Registry. This is because all land purchased through the Land Commission was subject to compulsory registration of title in the Land Registry.

Unregistered or Registry of Deeds title is now most commonly found in older urban areas. Under this system the ownership of property is proved by the production of deeds showing a chain of transfers, dating back to a sale at least 15 years old, and usually older.

Effect of Registration

The registration of a deed has the effect of securing priority over a later deed by the same person. Therefore, once a deed from a person with a good titleis registered , the transferee has the assurance that his title is secure. No later deed can gain priority.

The same principle applies to leases, mortgages, easements and other rights. Once, for example, a mortgage is granted and registered, the mortgagee is assured that it will rank ahead, of a later mortgage. The owner may, grant a second mortgage, but it will rank second. It will only be available if there are sufficient proceeds to satisfy the first mortgagee.

The quality of descriptions of property with (Registry of Deeds) unregistered title is sometimes poor. There may be a verbal description only. There may be a map with the deeds but its quality is not  guaranteed.

Becoming Registered

Once title to property becomes registered in the Land Registry system,  it can no longer be dealt with through the Registry of Deeds.

A document is registered in the Registry of Deeds showing the transfer to the Land Registry title. The deeds are retained by the Land Registry.

Proving Title

The chain of ownership should end with a deed or other transfer to the current legal owner. Older deeds, such as a lease or those which create easements or covenants, must also be produced. Old mortgages in the chain must be shown to be released.

In unregistered conveyancing, the deeds themselves are registered in the Registry of Deeds. The deeds may be transfers, leases, mortgages, easements, covenants and any other document granting or affecting rights to land.

Rights outside the Deeds

The assumption in unregistered conveyancing is that by reviewing the deeds back to a deed of sufficient vintage and making standard searches and investigations, that all rights affecting land will either be disclosed or overridden. There are flaws in the Registry of Deeds system, but it has worked reasonably well in practice. It is possible to purchase individual title insurance policies to deal with risks or issues that may arise.

It is necessary to physically examine the property. The buyer is deemed to have notice of the rights of persons in occupation.

Certain rights, such as leases for periods of less than 21 years, can affect title, without appearing on the chain of deeds or being registered in the Registry of Deeds. Similarly, the rights of squatters may supervene the rights of the legal title owners.  Easements acquired by long use (rather than by deeds) may affect land in the same way as squatters’ rights.

Until 2009, there existed the possibility of a considerable number of legal rights that could affect land, even if they were not disclosed in a standard  title investigation.  The recent Land and Conveyancing Reform Act, 2009 remove a lot of these theoretical problems by converting most  such rights into so-called equitable rights. This means they can be more easily overridden on a sale by freehold owner.

Investigating Title

The system of unregistered title relies on the production of the original deeds. There must be a chain of deeds dating back to a deed of sufficient vintage. The starting point or “root of title” is a deed of sufficient vintage which transfers the title in the property concerned for full value. Ownership is then traced from this starting point through the chain of owners to the current seller.

The chain of owners is verified by examining the original deeds and searching in the Registry of Deeds to show that each successive owner became registered so that no inconsistent deed having priority has been made by the prior owner.  The search must show and explain and release any inconsistent deeds in the chain. Any mortgages appearing must be released. The searches against a previous owner will end at the date when the successor’s transfer deed is registered.

A buyer who fails to investigate what is in the deeds is deemed to be affected, by what he would have discovered, if he had made the standard enquiries.  Where rights are partly disclosed by the deeds, there is an obligation to investigate further.

Root of Title

The root of title must be of, at least,  a certain vintage. Until recently, the legislation provided that the  deed should be at least 40 years old. Conveyancing practice developed so that  a deed of at least 20 years was accepted as sufficient. The recent Conveyancing Act  has shortened this period to 15 years.

Although property rights originating prior to the date of the root of title, could in principle exist, conveyancing practice proceeds on the basis that such rights are likely to be referred to in the deeds or be apparent from inspection or enquiries which should reasonably be made.

The root of title should not  cast doubt on itself. Generally, production of the original deed is required. If it has been lost, then proof would be required by way of a declaration that it has been lost and that it has not been lodged by way of security or given to any third party in the context of an inconsistent sale. Title insurance would usually be required to cover the risks arising from non-production.

If the property has been divided since the date of that deed, then it maybe that the owner of the other part has the original and that a copy only is available. In this case, there must be a so called statutory acknowledgement and undertaking as to safekeeping by the owner of the other part, who has retained the deed. In principle, the original deeds should be produced for inspection, in accordance in with the acknowledgement.

Deduction of Title Through Chain

The chain of ownership passes from the person who acquired ownership under the root of title down to the present owner, whose name should appear on the latest deed. If there is anything to suggest that other rights may exist, the onus is on the buyer’s legal advisor to investigate and ascertain such rights. The buyer is be bound by them if he should have become aware of them.

Each deed in the chain must be available or its absence must be properly explained. The chain of ownership is vouched by searches against every name in the chain of title through to the present owner. Searches should vouch that each deed is a first registered transfer by each owner to his successor in the chain. Registration gives strong assurance as to the integrity of link in the chain and searches verify registration.

Commonly, prior owners will have mortgaged the property. In each case where a mortgage is apparent on the searches, it  must be proved to have been released. The original mortgage with a release endorsed may be  physically produced. It is possible to register a release in the registry, and this may substitute for production of the release. .

On completion of the sale, the various “acts” (transfers by previous owners and even the current owner) will show up on the registry of deed search. These must be explained by the seller’s solicitor. Explanation means a rationalization as to how and why the act does not affect the sellers rights to sell.

Chain Issues

Certain documents are not capable of being registered. On death, the ownership of property passes to the personal representative. In this case, the proof of the chain of ownership jumps to grant of representation (which is an official document issued to the executor or administrator, verifying the will or intestacy). There follows a transfer by way of sale to the next owner in the chain (the realization of the assets) or an assent, which is a written document vesting the property in a beneficiary.

A lease or other document containing important covenants affecting the property should be disclosed to a buyer, irrespective of its age. In this case, the title is may commence with, for example, a lease, and then traced from the last sale more than 20/ 15 years ago. In this case, it is not necessary to vouch the title between the older deed (e.g. the  lease) to a  and the deed at least 15 years old.

It is necessary to go back to the first available sale deed , which is which maybe significantly older. This is often the case where a property has remained in the family for several generations. Indeed it may not be possible to find a sale deed at all if a property has remained in a family for many generations. In this case, a pragmatic approach must be taken and ownership would be traced on some other satisfactory document.

Other Investigations

As under the Land Registry system, the buyer or his representatives must inspect the property. Leases less than 21 years where the tenant is in occupation are valid notwithstanding, non-registration. Other types of rights, such as easements acquired by long use and squatters’ rights affect land, even though they do not appear on the deeds. Such rights may actually affect the land without this being apparent. Even, if they are undiscoverable, they would still bind the buyer.

One of the purposes of the recent land law reforms was to simplify unregistered conveyancing. Many types of  rights may exist and not appear on searches and a chain of title. The effects of the recent legislation has been to change most of these interests and rights into interest under a deemed trust of land. Therefore, many such interests are now equitable interests.

Equitable interest are not valid against a buyer who does not become aware of them on making the usual standard inquiries. The 2009 Act converted many interests which were formerly legal interests into equitable interests This reduces the risks that such rights may exist from on pre- root of title deeds.