Property Mortgages
Registration of Title Act, 1964
No. 16/1964:
REGISTRATION OF TITLE ACT, 1964
Charges
Creation and effect of charge on registered land.
62.—(1) A registered owner of land may, subject to the provisions of this Act, charge the land with the payment of money either with or without interest, and either by way of annuity or otherwise, and the owner of the charge shall be registered as such.
(2) There shall be executed on the creation of a charge, otherwise than by will, an instrument of charge in the prescribed form (or an instrument in such other form as may appear to the Registrar to be sufficient to charge the land, provided that such instrument shall expressly charge or reserve out of the land the payment of the money secured) but, until the owner of the charge is registered as such, the instrument shall not confer on the owner of the charge any interest in the land.
(3) A mortgage by way of conveyance with a proviso for redemption or by way of demise or sub-demise shall not of itself operate to charge registered land or be registrable as a charge on registered land.
(4) Any power, howsoever conferred, to borrow or lend money on the security of a mortgage shall be construed as including power to do so on the security of a registered charge.
(5) On registration of the owner of the charge the Registrar shall deliver to him a certificate of charge in the prescribed form.
(6) On registration of the owner of a charge on land for the repayment of any principal sum of money with or without interest, the instrument of charge shall operate as a mortgage by deed within the meaning of the Conveyancing Acts, and the registered owner of the charge shall, for the purpose of enforcing his charge, have all the rights and powers of a mortgagee under a mortgage by deed, including the power to sell the estate or interest which is subject to the charge.
(7) When repayment of the principal money secured by the instrument of charge has become due, the registered owner of the charge or his personal representative may apply to the court in a summary manner for possession of the land or any part of the land, and on the application the court may, if it so thinks proper, order possession of the land or the said part thereof to be delivered to the applicant, and the applicant, upon obtaining possession of the land or the said part thereof, shall be deemed to be a mortgagee in possession.
(8) On registration of the owner of a charge by way of annuity, the owner of the charge shall have such remedies for recovering and compelling payment of the annuity as are described in section 44 of the Conveyancing Act, 1881, as affected by section 6 of the Conveyancing Act, 1911 .
(9) If the registered owner of a charge on land sells the land in pursuance of the powers referred to in subsection (6), his transferee shall be registered as owner of the land, and thereupon the registration shall have the same effect as registration on a transfer for valuable consideration by a registered owner.
(10) When a transferee from the registered owner of the charge is registered, under subsection (9), as owner of the land, the charge and all estates, interests, burdens and entries puisne to the charge shall be discharged.
(11) When it is expressed in the instrument of charge that any person covenants for repayment of the principal sum charged, there shall be implied a covenant by that person with the registered owner for the time being of the charge to pay the sum charged and interest (if any) thereon at the time and rate specified in the instrument of charge, and also a covenant, if the sum or any part thereof is unpaid at the time so specified, to pay interest half-yearly at the specified rate on so much of the principal sum as for the time being remains unpaid.
Saving for mortgages registered as charges.
63.—(1) A charge registered prior to the commencement of this Act shall not be void or be deemed ever to have been void—
(a) by reason only that it was expressed to have been created by way of mortgage, or
(b) by reason only that the consent of the Land Commission or the Commissioners of Public Works or such other consent as may be provided for by any enactment was not obtained to any demise or sub-demise expressed to have been created by any such mortgage;
and the registration of the charge as a burden on registered land shall not be invalid or be deemed ever to have been invalid for either of these reasons.
(2) In this section “mortgage” includes both a mortgage by demise or sub-demise and a mortgage by conveyance or assignment with a proviso for redemption.
Transfer of charge.
64.—(1) The registered owner of a charge may transfer the charge to another person as owner thereof, and the transferee shall be registered as owner of the charge.
(2) There shall be executed on the transfer of a charge an instrument of transfer in the prescribed form, or in such other form as may appear to the Registrar to be sufficient to transfer the charge, but until the transferee is registered as owner of the charge, that instrument shall not confer on the transferee any interest in the charge.
(3) The Registrar shall deliver to the registered transferee a certificate of charge in the prescribed form.
(4) On registration of the transferee of a charge, the instrument of transfer shall operate as a conveyance by deed within the meaning of the Conveyancing Acts, and the transferee shall—
(a) have the same title to the charge as a registered transferee of land under this Act has to the land, under a transfer for valuable consideration or without valuable consideration, as the case may be; and
(b) have for enforcing his charge the same rights and powers in respect of the land as if the charge had been originally created in his favour.
Discharge of registered charge.
65.—(1) The Registrar shall note on the register the satisfaction of a registered charge or of any part of such a charge on registered land, or of the release of any part of registered land from a registered charge, either at the request of the registered owner of the charge, or on proof in such manner as is hereinafter mentioned, or in such other manner as may be prescribed, and thereupon the charge shall to the extent so noted cease to operate.
(2) For the purposes of this section, the receipt of the registered owner for the time being of a charge shall be sufficient proof of the satisfaction of the charge, or of any part of the charge, and a release signed by the registered owner for the time being of a charge shall be sufficient proof of the release of any part of registered land subject to that charge.
Transmission, etc., of charge.
66.—The provisions of this Act with respect to the transmission of registered land and the defeasance of the estate or interest of the registered owner shall apply, with the prescribed modifications, to transmissions and defeasances in the case of registered charges on land.
Restriction on custody of land certificate by registered owner of a charge.
67.—(1) The registered owner of a charge shall not, merely by reason of his being such owner, be entitled to the possession of the land certificate in respect of the registered land which is subject to the charge.
(2) Every stipulation in relation to a registered charge on land (whether made before or after the creation of the charge) whereby the custody of the land certificate in respect of such land is to be given to the registered owner of such charge shall be void.
Burdens which may be registered as affecting registered land.
69.—(1) There may be registered as affecting registered land any of the following burdens, namely—
(a) any incumbrance on the land existing at the time of the first registration of the land;
(b) any charge on the land duly created after the first registration of the land;
(c) any rentcharge (not being a rentcharge to which, though not registered, the land is subject under section 72) or fee farm or other perpetual rent issuing out of the land;
(d) any power to charge land with payment of money, whether created or arising before or after the first registration of the land;
(e) any trust for securing money created or arising after the first registration of the land;
(f) any lien on the land for unpaid purchase money;
(g) any lease where the term granted is for a life or lives, or is determinable on a life or lives, or exceeds twenty-one years, or where the term is for any less estate or interest but the occupation is not in accordance with the lease;
(h) any judgment or order of a court, whether existing before or after the first registration of the land;
(i) any judgment mortgage, recognizance, State bond, inquisition or lis pendens, whether existing before or after the first registration of the land;
(j) any easement, profit à prendre or mining right created by express grant or reservation after the first registration of the land;
(k) any covenant or condition relating to the use or enjoyment of the land or of any specified portion thereof;
(l) any estate in dower;
(m) any burden to which section 54 of the Forestry Act, 1946 , relates;
(n) any right of the Land Commission or a local authority to lay pipe-lines for whatsoever purpose and any right ancillary thereto;
(o) 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;
(p) a power of distress or entry;
(q) 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);
(r) a burden created by statute or under a statutory power that is not one of the burdens to which, though not registered, registered land is subject under section 72;
(s) any such other matter as may be prescribed.
(2) A burden may be registered under this section on the application of the registered owner of the land or of any person entitled to or interested in the burden but, if the application is made without the concurrence of the registered owner of the land or such other person as may be prescribed, the burden shall not be registered except in pursuance of an order of the court.
(3) Any covenant or condition registered under this section may be modified or discharged by order of the court on proof to the satisfaction of the court that the covenant or condition does not run with the land, or is not capable of being enforced against the owner of the land, or that the modification or discharge thereof will be beneficial to the persons principally interested in the enforcement thereof, and may, with the consent of all persons interested in the enforcement thereof, be modified or discharged by the Registrar without any such order.
(4) The Registrar may, on the prescribed evidence and subject to the prescribed conditions, modify or cancel any entry under this section of a burden not being such a covenant or condition as aforesaid.
Registration of ownership of burdens.
70.—The ownership of such of the burdens capable of being registered under section 69 as may be preescribed shall, on such registration, be registered in such register maintained under this Act as may be appropriate.
Priority of registered burdens.
74.—Subject to any entry to the contrary on the register, burdens which are registered as affecting the same land, and which if unregistered would rank in priority according to the date of their creation, shall, if created or arising since the first registration of the land, rank according to the order in which they are entered on the register and not according to the order in which they are created or arise, and shall rank in priority to any other burden affecting the land and created or arising since the first registration of the land, not being a burden to which, though not registered, the land is subject under section 72.
Priority of registered charge for future advances.
75.—(1) Where a registered charge is expressed to be created on any land for the purpose of securing future advances (whether with or without present advances), the registered owner of the charge shall be entitled in priority to any subsequent charge to the payment of any sum due to him in respect of such future advances, except any advances which may have been made after the date of, and with express notice in writing of, the subsequent charge.
(2) In this section “future advances” includes sums from time to time due on an account current, and all sums which by agreement or the course of business between the parties are considered to be advances on the security of the charge.
Power of charging to be exercised by registered charge.
76.—Where a power to charge registered land, or a trust for securing money on registered land, is registered as a burden on the land, it may be exercised or executed by the creation of a registered charge and not otherwise, and the person empowered under any such power or trust to charge the land with the payment of any money shall have the same power to create a registered charge on the land for that money as if he were the registered owner of the land, and the charge shall be entered in its proper priority.
Powers with respect to statutory charges.
77.—(1) Where a person has, under or by virtue of any enactment, a charge on registered land for the payment of any money, or a power to charge registered land with the payment of any money, he shall have the same power to create a registered charge on the land for that money as if he were the registered owner of the land.
(2) Registration of a charge under this section shall have the same effect as, and make unnecessary, registration thereof in pursuance of any other enactment.
Term of years vested in trustee for raising money out of registered land.
78.—Where a term of years is vested, whether before or after the passing of this Act, in a trustee or other person for the purpose of raising money out of registered land, such vesting shall operate as a trust for securing money on registered land or as a power to charge registered land, as the case may be, and may be registered as a burden on such land, and, where so registered, may be exercised or executed by the creation of a registered charge and not otherwise and the person empowered in any such trust or power to charge the land with payment of any money shall have the same power to create a registered charge on the land for that money as if he were the registered owner of the land, and the charge shall be entered in its proper priority.
Term of years vested in trustee for raising money, or mortgage, prior to first registration.
79.—(1) Where, prior to the first registration of land, a term of years is vested, whether before or after the passing of this Act, in a trustee or other person for the purpose of raising money out of the land, such vesting shall, on the first registration of the land, operate as a trust for securing money on registered land or as a power to charge registered land, as the case may be, and may be registered as a burden on the land, and, where so registered, may be exercised or executed by the creation of a registered charge and not otherwise, and the person empowered in any such trust or power to charge the land with payment of any money shall have the same power to create a registered charge on the land for that money as if he were the registered owner of the land, and the charge shall be entered in its proper priority.
(2) Where, prior to first registration, land has become subject to any mortgage, mortgage by demise or sub-demise or term of years to secure money actually raised, such mortgage, mortgage by demise or sub-demise or term of years shall, on the first registration of the land (if registered with an absolute, qualified or good leasehold title) or (if registered with a possessory title) on the conversion of the title into an absolute or good leasehold title, operate as a charge on the land and shall be registered only as a charge thereon.
Provisions as to incumbrances created or issued by company and not registered or protected.
80.—(1) Where a company registered under the Companies Act, 1963 , is registered as owner of land registered under this Act or as owner of a registered charge, the Registrar shall not be concerned with, and a person claiming under a registered disposition for valuable consideration shall not be affected by, any mortgage, charge, debenture, debenture stock, trust deed or other incumbrance created or issued by the company, unless such incumbrance is registered as a burden or protected by caution or inhibition under this Act.
(2) No compensation shall be payable under section 120 by reason of a purchaser’s acquiring any interest under a registered transfer from the company free from any such incumbrance not so registered or protected.
Registration of Deeds and Title Act 2006
Substitution of section 90.
63.— The following section is substituted for section 90 (powers of person entitled to be registered as owner of land or charge) of the Act of 1964:
“90.— (1) This section applies to a person—
(a) on whom the right to be registered as owner of registered land or a registered charge has devolved by reason of the death of the owner or the defeasance of the owner’s estate or interest or by reason of a transfer made in accordance with this Act or under a lease, and
(b) who, before being registered as such owner, wishes to take any of the following actions in relation to the land or charge:
(i) in the case of registered land—
(I) transferring or charging it or any part of it,
(II) creating a lien by deposit of the land certificate,
(III) granting a lease,
(IV) creating an easement or a profit à prendre, or
(V) where the person is the Minister for Agriculture and Food, exercising any other rights of ownership, including enforcing the right to vacant possession,
or
(ii) in the case of a registered charge—
(I) transferring or charging it, or
(II) creating a lien by deposit of the certificate of charge.
(2) A person to whom this section applies may take any of the actions mentioned in subsection (1) in the like manner and with the same effect as if the person were the registered owner at the date of the action concerned, but subject to any burdens or rights affecting the person’s interest which would have been entered on the register if the person had become the registered owner and subject also to the provisions of this Act with regard to registered dealings for valuable consideration.”.