Transfers and Transmissions
Dealing with the Registered Title
Registered titles are transferred and otherwise altered by way of a dealing. A ‘dealing’ is an application to the Land Registry to change the registered title, for example, a transfer on sale or transmission vesting the title ins a successor on death. or some other.
The date of the application for registration determines its priority relative to other competing applications. If the dealing is rejected, it loses priority and must be re-lodged in order to be completed. If it is queried and the query is satisfied in time, it will retain its priority.
The dealing must be in the prescribed form. It must comply with the legal requirements applicable to the subject matter of the application. For example, a transfer of land required a properly executed transfer deed by the registered owner together with it stamping certificate. The transfer of ownership is effected by way of a deed of transfer in the prescribed form.
Instruments
The form of basic land registry transfer is relatively simple. The general requirements for a deed are modified by Land Registry requirements apply. Land Registry requirements have never required words of limitations, formerly required for the grant and transfer of freehold unregistered title.
Documents for registration of a transfer or the grant of a new property interest must be executed as a deed. This requires that it be in a particular form and be witnessed. The requirement for a witness applied in respect of Land Registry, title prior to it being made a requirement for all deeds after the 2009 land law reforms.
Documents lodged must be properly stamped. As with stamp duty generally, there is an obligation on public registrars, including the Registrar of Titles and the Land Registry to ensure that stampable documents lodged in dealings are properly stamped. See the section on stamp duty.
Depending on the type of title and the type of application, there may be requirements to lodge other documents, such as evidence of compliance with a restriction on the title, or with applicable legislation.
Particular Parties
Where a joint owner has died, an application may be made to change the register by showing the survivorship of the joint tenancy on proof of death of the other and the absence of severance.
The registered owner has primary right to deal with the land. He must have legal capacity so that he is over 18 years’ old and have mental capacity. It is presumed that he has mental capacity in the absence of evidence to the contrary. The title may be affected by inhibitions, cautions, or statutory restrictions which have been noted on the title, which affect the ability of the registered owner to deal with the title.
Non-owners, may have the power to or be entitled to deal with the title. In particular, charges (mortgagees) have powers by statute and under the terms of their charge, subject to certain conditions, to sell the property and defeat lower ranking charges/burdens in the process. The title may be cancelled and destroyed entirely in certain circumstance. A leasehold title will terminate if the lease is forfeited by the landlord for breach of its covenants.
Where a person has transferred land, but the transferee has not yet become, or applied to be registered, the transferee may deal with (e.g. sell) his interest as the person entitled to be registered. The further transferee must lodge both transfers in the Land Registry together, in order to become registered as owner.
A person may transfer property, or his rights in property, while reserving rights in his favour, such as a right of residence. In this case, the transferee must assent to the registration of that right as a burden on the transferee’s interest. The assent should be incorporated in the transfer deed.
Under the Succession Act the personal representative of a deceased registered owner has the power to deal with the property. He will usually transfer the property on sale or vest the property by assent in the persons entitled, under the relevant will or on intestacy. An official copy of the grant of representation (probate or letters of administration) in the estate of the deceased registered owner must be lodged with the transfer deed or assent, in other to prove the personal representative’s entitlement to deal with the property.
Atypical Dealings
A transfer may be made by way of the creation of a trust or settlement. The property may be transferred to trustees who become registered owners. Notices and inhibitions may be entered in order to reduce the risk of the trustee dealing with the land in breach of the terms of the trust or settlement.
A company must produce a copy of a Certificate of Registration when it first becomes applies to become the owner of registered property. Where the company has been incorporated outside the State, the equivalent foreign certificate must be produced. On subsequent transfers, the existence of the company will be recognised and will not generally be necessary to re-lodge the certificate of registration..
The Land Registry is entitled to act on the basis that deeds and documents lodged with it, which appear to be properly executed, are so executed. Where documents are executed by a person who purports to be officers of the company and the corporate seal is affixed, the Registrar is entitled to assume it is duly executed.
A transfer by a charge (mortgagee) under a registered charge is equivalent to a transfer by the registered owner. The sale vests the property in the purchaser, free from lower ranking burdens. There is a special summary procedure by by which the charge may apply for possession of a charged property, once the mortgage monies have become due.
Consents may be required under the Family Home Protection Act, in the case of a sale by one spouse or civil partner of the family home or shared home. Formerly, the consent of the Land Commission was required to the subdivision of agricultural land. It was also required in many cases, to the sale of agricultural property transfers to companies or non-residents.
A dealing for registration must be accompanied by the requisite fee prescribed by law. Fees are prescribed by Ministerial order made under the Registration of Title Act.
Map
Where the transfer is of an entire folio or the whole of a distinct property shown separately on the folio (the folio being made up of more than one holdings, as is sometimes the case), no map is required. The property is already defined in the Land Registry and it may be transferred by reference to the entire or the existing separately defined part of it.
Where the property has been subdivided, a map which complies with Land Registry requirements must be attached to the deed and must define the sub-divided property. The Ordnance Survey publish maps that are approved for use in Land Registry transfers. The map is usually the highest available scale OS map.
The first generation of maps used by the Land Registry was the 6″ to 1-mile map. This was replaced over time by the 1:2500 scale. The Land Registry worked for many years on the basis of the Ordnance Survey 1:2500 map or a 25″ map. Over the last 40 years, this has been replaced in most urban areas by the 1:1000 scale map.
The Ordnance Survey map shows physical features and boundaries. This does not necessarily conform with legal title. However, it will conform in most cases. Over the time, the operation of the Statute of limitations may settle the boundaries. The boundary lines on Land Registry maps, which usually follow OS features, are not definitive in relation to the legal boundary. The Act allows the adjoining owners to agree to make boundaries definitive. The legal boundary is determined in accordance with general principles.
Land registry maps were originally available as physical maps at the principal offices. The maps have now been digitised, and are available on the Land Registry’s website. The official copy map and file plan are still in paper form although this is likely to change, with an electronic official copy Land Registry map/file plan.
There are special requirements for maps for development schemes and for multi-storey buildings. In the case of a development scheme with more than a handful of units, a single map must be prepared showing all units within the scheme. This facilitates the mutual compatibility of future land transfers. Once an approved Land Registry scheme map issues, a photocopy it is used with each deed in the development and the relevant unit is identified on the scheme map rather than precisely marked as such.
In the case of multi-storey units such as apartments, commercial unit blocks etc. maps showing, the location, elevations and floor plans must be marked in accordance with prescribed requirements. The plans must be show OS coordinates. A scheme map is required for a new development.]
Overreaching
There are a number of mechanisms by which title to property may be extinguished. The title may be lost where the property is sold by a mortgagee. It may be sold in pursuance of a court judgment. Statutory provisions may allow for its acquisition or transfer without the consent of the registered owner.
Depending on the nature of the power or circumstance, existing burdens and rights affecting the registered title may be overreached or destroyed. On a sale by a mortgagee, lower ranking charges and encumbrances are overreached and cancelled.
On bankruptcy, the bankrupt person’s assets vest by operation of law in the Official Assignee. An inhibition may issue on a petition for bankruptcy, to prevent disposition of the property pending adjudication of the petition. On production of evidence of adjudication of bankruptcy, the lands may be registered as vested in the Official Assignee.
Adverse Possession
Title to property may be lost by adverse possession. See the sections on adverse possession. Where a third party is in possession of the property for the requisite period, the registered owner’s rights to recover possession becomes “statute barred”. It is too late to take proceedings and the person in possession effectively takes the title.
The Land Registry on appropriate proofs and evidence, is willing to register the successor as owner, even though there no transfer of title as such. If there is any doubt on the acquisition of title by adverse possession, it may require the matter to be referred to and adjudicated on by the court.
Apart from the acquisition of title to registered title land, a person who obtains title by adverse possession to unregistered title land may make a first application for registration to the Land Registry on the basis of possessory title.
There is provision for an application for discharge of burdens such as leases, charges and easements. For example, a lease may terminate by forfeiture and repossession by the landlord. Proof must be given that the lessee has not applied for relief from forfeiture.
Cancellation of Burden
Where a lease has been terminated by forfeiture and re-entry, the leasehold folio in respect of it may be terminated, by an application which furnished proof of the position. A court order or other evidence of effective forfeiture or surrender will be required. In the case of forfeiture of a lease, a period is allowed in which lessee may apply for relief from forfeiture.
The procedure on application for cancellation of a burden other than by consent, (such as forfeiture of a lease) allows the holders of the burden concerned to make representations. Upon expiry of the time limits for ra eply or on exhausting of the procedures and adjudication by the Land Registry, the title is extinguished and the folio is closed.
A lease may terminate because of the expiry of its term. Rights may arise to new lease for the tenant / lessse. Pending the grant of a new lease the tenant’s tenancy should be protected as a burden which affects land without registration. A new lease may be the subject of an application for registration in itself.
Transmission on Death
Transfers arising on death are referred to as transmissions. They differ to sales by personal representatives which are undertaken by way of a deed of transfer. Since 1959, all property passes to the personal representative on death where there is a will and on issues of letters of administration in the case of intestacy.
Prior to 1959, freehold unregistered title property passed directly to the heir at law. The principle that title pass to the personal representative, has been applied in respect of registered title since the commencement of the original legislation in 1892.
The Succession Act came into force on 1 January 1967 in tandem with the modern Registration of Title Act. It abolished the older rules on the passing of property ownership on death. The personal representative is obliged to administer the estate in accordance with law.
The Land Registry recognise transfers by way of sale and assents vesting the property. For the most part, the Land Registry does not investigate the manner in which the personal representative implements the entitlement of the beneficiaries under the relevant will or intestacy.
The personal representative is recognised as the sole person entitled to deal with the land and vested in the relevant parties. The Registrar does not read or interpret the will in accordance with the principle that is does not examine trusts and beneficial interests.
The personal representative makes an application an assent vesting the property in the persons entitled. The Registrar is not entitled to require why an assent is or is not made and cannot look behind it.
An assent is the written document vesting registered title in the person who is entitled upon the death of the eceased registered owner. It does not require stamp duty. Strictly it need not be in the form of a deed.
In each case, the land registry rules prescribes a form of application an assent relative to the circumstances. No different forms for intestacies, wills or chattels.
Personal representatives maybe registered as owners with inhibitions, in order to protect the interests of beneficiaries. The inhibition may inhibit dealings with the land other than in due course of administration of the estate. his is similar to the manner in which trusts are protected. In some cases, a person named as the personal representative will become a trust under a longer term, under an arrangement provided for by the will. In this case, a new inhibition, may be entered on completion of administration in order to protect the beneficiaries.