Registration of Deeds
Deeds Registration and Title Registration
The registration of deeds system is the older system of land registration. It does not register the ownership of title. It registers the relative priority of deeds and documents. The registration of deed system is being phased out. Since June 2011, all counties in the Republic of Ireland have been subject to compulsory title registration in the Land Registry.
Compulsory registration in the Land Registry was applied to three Counties in 1970, Meath, Laois and Carlow. In the period 2006 to 2011, compulsory registration was extended to the remaining Irish counties. The last two Counties, Dublin and Cork became subject to compulsory registration in June 2011.
On the first sale, after compulsory registration applies, the buyer must make an application for first registration in the Land Registry. The buyer must prove his Registry of Deeds” based title to the Land Registry. Where the sale price is below €1,000,000, the buyer’s solicitor’s certificate of title may be given in place of proof of title.
The registration of deed system was introduced in 1707. The basic legislation remained the same for 299 years until the Registration of Deeds and Title Act 2006. This legislation placed the Land Registry and Registry of Deeds under a single Property Registration Authority. Both registries and the principles under which they operate remain legally distinct, despite the single administrative authority.
The registration of deed system was originally enacted in Ireland, as part of the penal laws. Registration of deeds was introduced for a period in some parts of England but the last of the English deeds registries have been closed. England and Wales have been subject to compulsory title registration in all areas since 1990. All Counties in Northern Ireland has been subject to compulsory registration since 2003.
Registration of deeds is central land ownership in most of the United States. A broadly similar system exists in many Continental European countries. The registration is undertaken in the local County. Many of the records have fallen into arrears and this, combined with difficulties of searching, have meant that in many States title insurance has plugged the gaps in the system.
Principle of Registration
The basic principle of Registry of Deeds title, is that the first registered deed made by the grantor to a buyer, mortgagee or another transferee, has priority over any other deed, made by him, whether beforehand or afterwards. Where two inconsistent deeds are granted by the same person, the first registered deed usually has priority. This principle of priority for the first registered transferee is subject to certain limitations, which are mentioned below.
The Registry of Deeds in Ireland operates a register of grantors (transferors). It lists in books, transfers by persons of the relevant name in a period. What is searched is the index of grantors in respect of a particular name, from the date of the deed concerned up to the date upon which that person transferred his or her rights under a registered deed. By searching between these dates, it is possible to verify whether any inconsistent deeds have been granted during the period.
The Registry of Deeds title system is premised on deduction or “tracing” of the title. A valid deed of a sufficient age is required. Formerly, a deed of 40 or 20 years vintage was required. This period has recently been reduced to 15 years. Registry of Deeds title is sometimes (confusingly) called “unregistered” conveyancing. This refers to the fact that the title is not registered in the Land Registry.
When a deed of at least the relevant vintage is available, the transfers down to the current owner (if any) from the date of this deed are vouched by searching in the Registry of Deeds. The subsequent owner can rely on registration as sufficient proof of the priority of each deed in the chain of ownership.
In many US States, where a Registry of Deeds system operates, there is both a register of transfers by grantors and receipts of title by grantees. In this case, double assurance is available, by searching the index of names from the first deed forward to the current owner’s deed and then searching the register of grantees back to the first deed.
Formerly, the Registry of Deed maintained a register of lands. Entries of each deed for each Barony and parish was entered. These registers were closed in 1947 and were not maintained after that date.
Searches and Registration Mechanics
Deed registers consisted, until recent times, of books of entries of grantors, indexed by surname. It is possible to request the Registry of Deeds itself to undertake a so-called negative or common search which has an official guarantee of authenticity. However, such searches take a period of time so that most searches were and are commonly undertaken by law searchers. These searches are now called “official searches”.
Private Law Searchers search the index of names for the requisite names in respect of the periods and properties and make a list of entries or “acts” found as a result of their search. It is then verified whether the acts correspond with the chain of deeds. More recently the Property Registration Authority has opened an online searching facility.
The registration of a deed itself formerly involved filing a so-called memorial of the deed. This was a summary of the key parts. It was lodged and compared with the original deed. Provided the requirements of the legislation (which were quite strict) were complied with, the deed was registered. The original deed was stamped with the date and time of registration and the relevant entry was made in the register of grantors.
After 2006, a simpler form of registration application is permitted. Negative searches have been re-titled “official” searches by the 2006 legislation.
Limitations
Not all documents which transfer or create rights in land are capable of being registered. The registry of deed system of priority only relates to deeds which are capable of registration. Wills, grant of probates and leases for less than 21 years cannot be registered.
The effect of this limitation is that it is not necessarily possible to identify the ownership of “Registry of Deeds” land by examination of the register. The Register only contains an index of transfers, grants and mortgages. Therefore, the only way in which the ownership of own registered land by the current owner can be traced, if he has granted a mortgage and it has been registered. If the person has acquired a land without a mortgage, his name will not appear because the name of the transferor only, is searchable.
Prior to December 2009, it was possible to create a mortgage of unregistered title land by depositing the original deeds at the bank. Unless there was a contemporaneous memorandum, recording the terms of the mortgage, there was nothing capable of being registered. Therefore, such a mortgage would have priority although not registered.
Such a mortgage was and is as (as they may feel exist) completely dependent upon retention of the original title deed. Subsequent purchasers are deemed aware of a mortgage by deposit of the deeds if the original deeds were not produced. This gives sufficient protection without registration, as “unregistered” conveyancing practice requires the production or delivery of the deeds.
Leases for a term of less than 21 years where the lessee is in actual possession of the are not registrable. A buyer, mortgagee or other person who acquires rights in land must inspect the land concerned. A buyer is always bound by matters which come to his attention are obvious from inspection. He is fixed with notice of matters he would become aware of, on inspection, irrespective of whether he does or does not inspect.
Priority
Where two documents can be registered, the first registered document usually takes priority. This is so, even if it is executed or signed second. However, unlike the land registration system, this is not an absolute principle. The courts allow exceptions to the principle. If a buyer is actually aware of the inconsistent earlier deed, he cannot obtain good title from the holder of the first registered second deed. The courts would regard this as fraudulent and inequitable. This principle only applies where the person has actual notice of the prior own registered or later registered right at the time he takes his conveyance.
If the person’s legal representative obtains actual notice of the earlier deed, this is imputed to the buyer. In contrast to other areas of conveyancing, so-called constructive notice is not enough. Constructive notice is where facts exist from which other facts can be inferred or found out after the usual investigations are made. It is effectively deemed notice, where the relevant facts should have been discovered. There may be a thin line between actual notice and constructive notice.
The principle of priority is only available for a purchaser who gives valuable consideration. This means paying a price or giving something substantial in money’s worth. If the transferee receives the property as a gift, he will not take priority over an earlier buyer who has not yet registered.
Unregistered Conveyancing
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. The Land Registry was established contemporaneously with the first major waves of land purchase in the 1890a, which over the following 50+ yearssaw mostt agricultural land in the State acquired by its tenant farmers through the Land Commission with Government assisted finance.
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.
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 tothe integrity of link in the chain and searches verify registration.
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.
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.
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. This reduces the risks that such rights may exist from on pre- root of title deeds.
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.