Burdens

General

There are two types of burdens which affect registered land.  One category of burden affects registered title, only if registered. The other category of burden, set out in section 72 of the Registration of Title Act, affects registered land without registration.  The categories of burdens have been extended and amended from time to time.

Title to freehold or leasehold estates in land only are registered.  Other types of property rights may subsist only as burdens registered on (or “against”) the registered freehold or leasehold title, There is no independent title to such proprietary rights.  A charge may subsist only as a burden on a registered title. An unregistered charge is defeasible, by a later disposition of the registered title for value, unless and until it has been registered.

The Land Registry rules specify the forms for the creation of burdens.  Generally, the consent of the registered owner is necessary. The registered owner assents to the registration of the burden on the registered title, in most cases, by way in the document which created the relevant burden.

The types of burden that may affect registered title reflect the types of interest and rights which may subsist under general principles of property law.  Issues of priority applicable under general law, apply in relation to a burden.  Generally, the order of registration determines the relative priority of burdens.  This is critical in many cases, for example in the case of successive charges.

Some burdens may affect the estate of a limited owner only, while not affecting the entire estate.  Similarly, they may affect the right of a co-owner or a person with a future interest only.

A note will appear on the register, specifying the limitation.

Rights Requiring Registration

Rights of residence are very common in Ireland. They vary in their legal nature. Most variants may be registered as a burden on registered title land.  They may be accompanied by a right of maintenance and support. They may provide an exclusive or non-exclusive right to reside in a particular property.

A right of residence in or on registered land, whether a general right of residence on the land or an exclusive right of residence in or on part of the land, is deemed to be personal to the person beneficially entitled to it.. The legislation deems it to be a right in the nature of a lien for money’s worth in or over the land. It does create an equitable estate in the land.

Covenants relating to the use and enjoyment of land are registrable and must be registered in order to affect registered title land.  There exists a provision for modification and registration of registered covenants.  The provision had been in restrictive terms under the 1964 legislation. The provisions have been modified and broadened under the 2009 land law reforms.

A lis pendens may be registered in respect of pending litigation, which may affect the title to property. The title is bound by the result of the pending litigation. The pending action is registered in the register of pending judgments.  In order to affect registered title land, it must be registered on the folio. An order commencing the insolvency process must be registered.

A lis pendens in itself is not  a transfer for valuable consideration. Therefore, it may be vacated or cancelled if it is registered after the sale of the property, but prior to registration of the sale deed.

A power of revocation is registrable as a burden.

A lease for life (or enduring with reference to a life) and a lease for a term for a term of more than 21 years must be registered as a burden, in order to affect registered title land. Since 1967 the title of leases more than 21 years must themselves be registered in a separate leasehold folio. The Land Registry opens a separate leasehold folio in respect of the lessee’s interest under the lease. Pre-1967 leases may be registered as burdens on the lessor’s registered title, while the leasehold interest itself is unregistered.

A lease of land for a term of less than 21 years, where possession goes with the lease does not require registration.  The lessee must be in occupation.

Easements and profits a prendre must be registered as burdens, where they are created by a deed of grant or by reservation under a deed, for the benefit of retained land after the first registration of the land. An easement or profit à prendre by prescription, where on application to the Land Registry, it is satisfied, that there is an entitlement to such an easement or profit à

Profits a prendre are registerable. Registration is required to establish a legal easement after the 2009 land law reforms.

Mortgages/charges must be registered as burdens, in order to charge and affect registered title land and be effective.  Where there is a floating charge, the crystallization of the floating charge on a specific property must be itself registered.  Any encumbrance on the land existing at the time of the first registration of the land must be registered

The following must also be registered as burdens

• most rentcharge and or fee farm or other perpetual rents issuing out of the land;
• any power to charge land with payment of money,
• any trust for securing money created or arising after the first registration
• any lien on the land for unpaid purchase money;
• any judgment or order of a court, whether existing before or after the first registration of the land;
• any judgment mortgage, recognizance, State bond, inquisition or lis pendens, whether existing before or after the first registration of the land;
• any covenant or condition relating to the use or enjoyment of the land or of any specified portion thereof;
• a freehold covenant attaching to dominant land and servient land which has been entered after the 2009 land law reforms;
• any estate in dower (see sections on succession);
• replanting and other tree felling licence obligations;
• rights of a local authority to lay pipe-lines for whatsoever purpose and any right ancillary thereto;
• a power to appoint an estate or interest in the property exercisable within a period not exceeding a life or lives in being and twenty-one years thereafter;
• power of distress or entry;
• a right in the nature of a lien for money’s worth in or over the property for a limited period not exceeding life, such as a right of support or a right of residence (whether an exclusive right of residence or not);
• burden created by statute or under a statutory power other than those which affect registered land though not registered,
• certain agreements under wildlife legislation; and
• any such other matter as may be prescribed by Ministerial order from time to time.

Overriding / S.72 Burdens

Certain classes of rights and interests (so-called section 72 burdens) bind registered title without registration.  Generally, they are rights and interests which may be discovered by physical inspection of the property.  This is similar to the general principle applicable to unregistered titles, that a buyer purchases subject to interests which would be discoverable on inspection.  It is possible to register a section 72 burden if desired.

A lease for a term of less than 21 years, or any lesser estate or interest where the holder of the right is in occupation, affects registered title without registration on it.  A similar principle applies  under the Registry of Deeds legislation.  A lease for a term less than 21 years,  where occupation does not go with the lessee’s title, must be registered in order to affect registered title.

The rights of persons in occupation or in receipt of rents or profits affect registered title without registration. This is a very broad category. It covers person in the property who may have a legal or equitable interest, which is not readily apparent. It does not apply if on enquiry to the rights holder, the interest is not disclosed.

An occupier may have an equitable interest by way of resulting trust, if he has contributed to the purchase price, (or the redemption of a funding mortgage) of the property. A buyer or mortgagee may be subject to the interest, of the occupier concerned unless the occupier trnasfers or charges whatever equitable interest he may hold.

Rights acquired or in course of being acquired by adverse possession affect registered title without registration. This covers squatters and other instances whereby title is acquired by possession for more than the period, in which a person with the documentary title holder ( by deeds or Land Registry title) may bring legal action to reclaim possession. Such rights, once acquired, are superior to the rights of all persons including a purchaser for value from the registered owner.

Easements and profits a prendre, other than those acquired by grant or registration after first registration bind registered title without registration. Since 2012, an application for registration of easements established by long use must be made to the Land Registry, in order to establish them as legal easements. Alternatively, a court order is required to establish a legal easement In both cases, the order must be registered in order to affect registered title.

Where land is registered with a possessory, qualified or good leasehold title, all rights excepted from the effect of registration affect title without registration. The rights of superior interests holder, adverse to those of the lessor may be reserved when property is registered with good leasehold title.

In the case of freehold land registered with a possessory title, a transfer of the land shall not affect any right adverse to the title of the first registered owner and subsisting or capable of arising at the time of the registration of such owner. This includes any rights or affecting the owner under a former interest held (historically as  tenant farmer).

Formerly, estate duty and capital acquisitions facts affected land without registration.  The statutory charge was removed in 2010.

Tithe  rentcharges affect lands without registration. These were rent charges in lieu of tithes, provided for under 1838 legislation which reformed titles payable to the established church.

Many quit rents (many dating from 16th and 17th century) affect registered title without registration. Some such rights arising from enfranchisement in the 19th century.  Many such rights were acquired by the Land Commission and have been written off by the State, or effectively abandoned.

Land purchase annuities affect land without registration.  However, in practice, annuities or rentcharges for the repayment of advances made under the Land Purchase Acts were registered.  Many such still exist, due the long payback period. Many have been written off and continue to be written off as the value of the nominal amounts have been eroded due to decads of inflation. Legislation wrote off land purchase annuities below [      ].

The  rights of the Land Commission or of any person under a vesting order, vesting fiat, final list or transfer order made or published under the Land Purchase Acts and the rights of the Land Commission upon the execution of an order for possession affected registered title without registration. The Land Commission has been wound up so that these rights are of historical interest only.

Rights of the public or any class to the public affect land without registration.  This will typically include public rights acquired by long use such as a public right of way. Customary rights, franchises and liabilities fall into a similar category and affect land without registration.

Statutory restrictions under some older housing legislation on letting assignment, mortgaging and transfer of “social housing” property affect registered title land without registration. Under modern housing legislation, such rights are registered on the title. Title vested under modern housing legislation, is subject to compulsory registration, if not registered in the Land Registry.

The Land Registry is obliged to enter notes on  folios of any statutory restrictions on  alienation (transfer and other dispostions).

Other less common  categories of rights are prescribed by Ministerial Order from time to time.  They include the following:

• statutory way leaves;
• covenants which are deemed by law to continue to affect the freehold interest after the former long lessee has acquired that interest.  See the section in relation to ground rent legislation,  which provides for certain categories of covenants, which continue in force.
• land improvement charges and drainage charges under statutory schemes for drainage improvement and reclamation;
• a perpetual yearly rent which is superior to another such rent (the registered rent) registered as a burden on registered land and which, as between the said registered land and the registered rent, is primarily payable out of the registered rent in exoneration of such land;
• the covenants and conditions contained in the deed or other document creating the superior rent, in so far as those covenants and conditions affect such land;

The policy of the law has been to reduce the extent of such rights. This would be necessary to facilitate e-conveyancing. The 2009 Act land law reforms have required the registration of legal easements. In England the equivalent categories have be severely limited.

Many of the historical rights above, which affected the land on registration, are in effect  removed by the passage of time. They may be barred from enforcement in many cases, where they have not been exercised for 12 years.  An application may be made to the Land Registry to convert title to absolute.  This is in contrast to the rights of a landlord under a long lease which is never barred until it falls in.

Release

There are statutory forms for the discharge of a burden. One form is for the more straightforward case, for example the release of a charge on redemption, where the chargeholder executes the discharge. Where cancellation is with consent of the owner of the relevant charge, few practical issues arise.

Bank and financial institution mortgages may use as simplified form of release, by a sealed receipt on the charge document.  This negates the necessity for the execution of a formal discharge document.

Charges and burdens may be cancelled by application by party, other than the owner of the right, typically the registered owner who claims that the burden no longer affects the land.

Certain rights may be discharged based on operation of law, passage of time or other basis.   If the facts are sufficiently clear, then the Land Regitry may cancel the burden without requiring a court order. Notice may be required to be served on the owners of the rights before cancellation giving them the opportunity to contest the matter.

Some types of burden will terminate because of circumstances or their nature.  A personal right of residence for life will terminate on death.  An option or other right may  by it terms, expire. Leases  terminate at the end of their term. Lis pendens expire with the litigation. Easements can be lost by  disuse in much the same manner as they are acquired by use.

Applications may be made on the basis that the relevant burden has become statute barred.  In other cases, burden may be satisfied such as where a mortgage or charge has been paid off.  A chargee or mortgagee is obliged to release the charge.  However, if it is not done, an application may be made unilaterally by the chargor.

There may be cancelled on foot of an application supported by a documentary release or on proof of abandonment on affidavit or by court order, if required.

Sporting and fishery rights were commonly excepted on registration to the Land Commission or others, on the acquisition of agricultural land under Land Purchase Acts.  Such notes appear very commonly on titles in Ireland, notwithstanding there may be no body of water on the land.

The Land Registry may require notices or advertising in local newspapers before release of sporting rights.  In many cases the Department of Agriculture readily agree to release of the same as successor to the Land Commission.