Nature of Registered Title

State Guarantee of Title

The Property Registration Authority of Ireland administers the Land Registry and the Registry of Deeds. The Land Registry registers ownership of land and provides a State guarantee.

If a person suffers a loss in consequences of an error originating in the Land Registry, he has a right, in principle, to sue for compensation. If the mater cannot be agreed with the Land Registry, it is referred to court.In practice, the right is relatively narrow in scope, Many if not most errors on the Land Registry are not attributable to Land Registry error, but may reflect erroneous applications or registered particulars going out of date by the passage of time.

The Land Registry was introduced in the context of the land purchase legislation. The Land Commission vested much of the former landed estates in its tenant farmers. Upon vesting of title, it was compulsorily registered in the Land Registry.

Proof of ownership or title depends on an entry in the relevant register. Once title becomes registered in the Land Registry, it may no longer be dealt with under the Registry of Deeds. The deeds are taken into Land Registry and retain by it. They cease to be proof of title. The are replaced by the registered title, which constitutes title in itself.

Formerly until 2007, Land Certificates were issued. The Land Certificate was in the nature of a title document, as it had to be produced on every significant dealing with the land such as mortgage, transfers, etc. In support of an eventual system of e-conveyancing, Land Certificates were made ineffective, as and from 1^st January, 2007.

The Registration of Deeds and Title Act 2006 merged the Land Registry and Registry of Deed in to the Property Registration Authority of Ireland.

The details requirements and forms for dealings with registry title land are set out in the Land Registry Rules. The Registry has published Practice Notes in relating to the practice and procedure for certain types of transactions and matters.

Mandatory Registration

Compulsory registration applied to land purchased through the Land Commission and to Land acquired by statutory authority.. It also applied in respect of certain other lands which were deemed to have been dealt with under the Land Purchase Act. In some instances, registration might be triggered by a forst sale after 1967of land which had been acquired up to 100 years beforehand, under earlier acquisition legislation. These anomalies were removed in 2006.

In 1970 all land if Meath, Carlow and Laois was designated as subject to compulsory registration, on its next sale. This was expanded to include Longford, Roscommon, and Westmeath from April 2006. Clare, Kilkenny, Louth, Sligo, Wexford and Wicklow followed on 1^st October 2008.

Cavan, Donegal, Galway, Kerry, Kildare, Leitrim, Limerick, Mayo, Monaghan, North and South Tipperary Offaly,  Limerick and Waterford were subject to compulsory registration on 1^st January 2010. Finally, Dublin and Cork were made subject to compulsory registration on 1^st June, 2011.

The obligation to register compulsory in the Land Registry applies to a sale of property at least for over 21 years or such other transfers or dealings as maybe specified.

Land Registry comprises a central office in Dublin and a number of other local offices dealing with particular counties. Originally, Land Registry for all of Ireland was based in  Dublin. Upon creation of Northern Ireland, the registers in relation to the Northern Ireland counties was transferred to Belfast. A  number of counties are administered from the Land Registry offices in Waterford. There is a substantial office in Roscommon. There were formerly local offices in each county.

When land is subject to compulsory registration, the application for first registration must be made within 6 months of sale. In practice, it is possible to apply later. Ownership does not passed unless the title is registered within 6 months of the transfer which triggers the obligation to compulsory register.

A  land owner with unregistered title may apply to register his title voluntarily. Voluntary first registration has been and is encouraged by the fee structure. It is sometimes done where complex a registry of deeds title is involved. It may be done to simplify title, particularly on the development and  sub-division of land into parcels, for sales. By registering in Land Registry, the Land Registry itself gives a State guaranteed title which simplifies the proof of title on future sales.

Registers

There are two principal registers.

• Register of freehold interests;
• Register of leasehold interests

The Register of easements and equivalent right was established on foot of  2009 land law reforms which required the registration of and easement acquired by long use.

Folios

Folio numbers are the files in which titles are registered. The folio is comprised of three parts.

The first part of the folio comprises a description of the property with reference to the Ordnance Survey registry plan. It may also contain details of easements and covenants attaching to the land. It is not mandatory to specify easements attaching to the land, although it is mandatory to register easements by deed, on the title which they affect. Ownership of mines and minerals may also to be specified.

The second part of the folio sets out details of the owner of the property. It specifies the class of title, whether absolute possessory or qualified. Certain other matters may be noted in the second part, including notes regarding the category of co-owners and the shares owners in common, and cautions and inhibitions restricting registration.

The third part of the folio sets out the burdens (interest and rights) which affects the title. This includes burdens such matter as mortgages, covenants, easements and other right, which require to be registered to affect registered title land. Cautions against dealing with burdens are also registered, if applicable.

Scope and Limits of Registration

For the most part, the register is conclusive evidence of its content. However, it may be rectified on the basis that has been affected by fraud or mistake. The registry itself may correct administrative errors and slips.

Certain rights affect registered title without registration. See the separate section on so called Section 72 burdens.

The registry is not conclusive of the extent of the property and boundary. However, in most cases, the register to be accurate allowing up to a 10% tolerance.

The principle of constructive notice, that applies to unregistered Registry of Deeds title, that a purchaser buys subject to such rights as he would discover on making the  usual or reasonable, does not apply to a registered title. Registerable rights do not affect land unless registered.   A purchaser for valuable consideration purchase, subject only to such unregistered rights, which affect registered title without registration.

The Land Registry is not necessarily a conclusive statement of the current ownership of land. It may be out of date, because the registered owner has died. The registered  owner may have executed a transfer  which has  not yet been registered.

Sometimes it happens that the Land Registry is not updated through several generations, where the registered owner and, in some cases his successors, have died, while their respective successors have taken or remained in, possession. It may be necessary to obtain a grant of representation to the estate of last surviving registered owner, and to show a sequence of entitlement down to the present day, to update the register.

The transfer of land is undertaken by way of a deed in a form prescribed by the Land Registry rules. This document is executed as a deed and commonly called a transfer. Upon completion of a sale or equivalent transaction, the transfer is stamped and the stamp certificate and transfer is lodged in the Land Registry. The prescribed Land Registry fees must be paid. The register is then written up, giving effect to the transfer deed, which is retained in the Land Registry.

Where an error has occurred in the Land Registry by way of misstatement or mis- description, the Land Registry may with the consent of all persons concerned, rectify the error. If it can be rectified without loss, the Registry may rectify the error after giving such notices as this may be prescribed. In other cases, the court may rectify the error if it can be done without injustice to any person.

Compensation is payable to a person who has suffered loss  by reason of an error that ha arisen in the Land Registry. This is a significant limitation on the State guarantee of title.

Types of Owner

There are three principle classes of ownership in the Land Registry. Absolute title is the highest class. It is by far the most common. Upon registration of a person with an absolute title, the interest in the land concerned together with all easements rights and privileges attaching to it, vest in the person concerned.

A person may be registered as the owner but may be a trustee. The Land Registry does not look at equitable rights but at legal right. Therefore the person named as the registered owner must hold the land for the benefit of the third party.

The registered owner may have been dispossessed. A third party may acquire ownership by squatting and long possession.

A qualified title is one subject to certain limitations or third party rights, which affect it at the time of first registration. In this case, the Land Registry register the title but allow for the possibility with some other third party’s rights may be asserted and limit and refeat the  registered title.

A person may apply for registration of unregistered title land or registered land by showing that he has acquired ownership by adverse possession. In this case, the applicant must set out the facts and circumstances by which he claims to have acquired the title concerned.

The registrar will generally serve notices on persons who appear to be affected, not least the  registered owner. When the Land Registry satisfied that possessory title has been obtained, it may register a new title with possessory title. Where the facts or claim is contested, the Land Registry is likely to refer the matter to court. Possessory title is a weaker class of title than an absolute title, as it is subject to certain qualifications and risks inherent in the acquisition of title by possession.

In the case of good leasehold title, the Land Registry verify the title or ownership of the lessee’s right under the lease. It does not investigate the lessor’s title.

In the case of qualified, possessory and good leasehold title it is theoretically possible for a third party to assert an adverse claim which undermines the title. For this reason, it may not be acceptable on a sale, as a sufficient class of title.

Procedures exist in Land Registry for conversion of titles which have been held for a long number of years, under one of the above classification. Persons may apply to a better category of title after a prescribed period of time has passed without adverse third party rights being asserted.

The folio  show whether co-owners are registered as joint owners or as tenants incommon. It is possible for a person to be a legal co-owner but the inequitable tenant-in-common.

Trusts

A  trustee is generally registered as legal owner. The Land Registry does not recognise trusts. It is good practice to place a caution or an inhibition on the folio restricting transfers by the trustee without notice to  specified parties, generally the beneficiaries or somebody looking after their interests. This gives the opportunity to assert the trust, thereby mitigating the risk that the trustee registered owner may deal with the land in breach of trust.

The 2009 Legislation has facilitated the sale of land where there are two trustees. A  transfer by two trustees will take precedence,  even over the rights of known equitable interests. It does not take precedence over certain rights which are protection without registration.

Overriding Interests and Rights

Certain classes of rights are impractical to register. They affect registered title irrespective of whether they or not they are registered. The most common forms of such right are set out below:

• tenancies and leases for a term of less than 21 years;
• the rights of every person in actual occupation or in receipt of the rents; This requires that a buyer must always inspect the property itself, in order to ascertain and investigate rights of persons in occupation;
• certain land improvement and drainage charges;
• public rights;
• easements and rights other than those created by deed,
• rights acquired by long use which have not yet been registered.
• person who have right to have the register corrected

The protection of the rights of persons in possession, protects those for example who occupy the property in succession to the registered owner on his death or on sale, but who have not yet registered their title. It also protects persons acquiring title or who have acquired title by (squatting) adverse possession. It protects the rights of persons who have equitable or beneficiary interest or rights under trusts. It may protect spouses and others in occupation, who are entitled to an interest under a resulting trust, by reason of having  made contributions to the purchase price.

The requirement that a person occupies the property, does not necessarily mean that he must be physically present. It may suffice if he has a presence and an  intention to possess  such as to be apparent to a person making enquiries. Persons whose occupation may be discovered by appropriate enquiries, may be in sufficient occupation for this purpose.

• the rights of persons excepted where the title is registered with possessory, qualified or good leasehold title;
• certain perpetual rents under free farm grants/leases for ever;
• rights of persons in the course of acquiring land by adverse possession

Interests and Rights Requiring Registration

Certain rights affecting land must be registered in order to validly effect. They include

• charges/mortgages;
• certain equivalent financial types of charges;
• leases for a period in excess of 21 years;
• leases for shorter periods where the lessee is not in possession;
• judgment mortgages;
• court orders;
• easements and rights created by deed or grant
• covenants and conditions affecting and restricting land.

It is possible for a person who has obtained a judgment to register it as a charge against the land.A judgment mortgage does not hold good against prior unregistered transferees and mortgagees for value. A person who has agreed to grant a mortgage under a loan offer which is not yet been registered, will retain priority over a later judgment mortgagee, which takes it all beneficial and equitable interest.

Protection by Note on Register

A range of interests and rights which cannot be protected by registration as such, may be protected by registration of a protective caution or inhibition.

A caution is easier to register and is less restrictive. A caution prevents dealing of land would have notice to the person registering it. The purpose is to give the person registering it a chance to assert his rights. If the person fails to assert the right that caution will be cancelled.

An inhibition is harder to obtain and may require a court order. The register may grant an inhibition under certain circumstances. An innovation stops land being dealt without the consent of the person who is beneficiary or holder.

A caution or inhibition is the appropriate mechanism to prevent trusts, protects trust and equitable right.

A transfer of registered land takes a subject to the registered interest and the so called overwriting interest Section 72 Burden. For a person buys without valuable e.g. by way of a gift they also takes subject to own registered rights.

A judgment mortgage is not being given for valuable consideration. Therefore it takes subject to existing on registered rights.

There is procedure by which a right claimed in litigation over land maybe registered in the high court or circuit court as affecting the land. Such less dependence, i.e. pending court case is registered a bar takes subject to the outcome of the litigation.

Postiion of Transferee

A purchaser for value takes the title subject only to matters which may be rectified by reason of fraud or mistakes. This is unlike the case with an unregistered title, where the purchaser is deemed to have be bound by rights and interests of which he may become aware, if he made the usual investigations.

In the case of registered title only so called actual fraud would serve to affect a buyer with the right.

A person who has claims to acquire titled of the land by adverse possession may make it obligation to the Land Registry for first registration of own registered title. The Land Registry may issue a possessory title. It serves notice on persons it believes who may have an interest in the property.

Similarly existing registered title may be the subject for an application for registered for adverse possession registration.