Land registration Flashcards
Property registration in Ireland
currently 2 separate systems for recording property transactions in Ireland: (i) registration of title system (Land Registry); and (ii) registration of deeds system (Registry of Deeds). Both systems are mutually exclusive i.e. they do not depend on each other for functionality. Both systems are however both under the control and management of the Property Registration Authority (PRA). A title is the ownership of a property and a deed is a document that affects property (but it can be used for other transactions as well).
ROD
Documents existence of a deed Registration gives no validity to title Title is not conclusive Title is not guaranteed by the State Deed identifies prop
LR
Effect of document noted
Registration gives validity to the effect of a doc
Title is conclusive except for Section 72 burdens (explained below)
State guarantee
OS map identifies prop
ROD
Where did it come from?
ROD was established to combat fraud and forgeries in land transactions by establishing a system for determining priority between documents relating to the same piece of land. While registration did not guarantee ownership of land, it meant that a registered document took priority over later registered documents and unregistered documents.
ROD How does it work?
Crucially, as opposed to the LR (below), this is the registration of documents, not of title. It is not compulsory (like the LR), but if you need priority, then the ROD is essential. When a deed is lodged in the ROD it is not filed there permanently. Rather, it is returned to the party who lodged it for registration. Instead a ROD application form (formerly a memorial) is filed. The new signed deed becomes the latest deed showing the ownership of the property, adding to the chain of deeds stretching back to the first time the deed was registered (can go back as far as 1707). The latest deeds have a legal priority over unregistered deeds and other deeds recorded later in time. As the ROD application form is on public record, anyone can inspect it and see who owns the property (therefore, the doctrine of equitable notice applies). However, a purchaser of unregistered land must read the actual deeds to examine the title to the property (investigation of title). Transfer of title occurs not with registration but when the deed is delivered and the purchase monies are paid.
LR Where did it come from?
Historically, was set up as farmers were being lent money by the State to buy back their lands and financial institutions needed a more conclusive system of ownership, which was State backed.
LR How does it work?
When title is registered in the LR, all relevant details about the property and its ownership are entered on documents known as folios. Folios are the building blocks which form the registers maintained in the LR. Property that is registered at the Land Registry is known as registered land, as every transaction on a property is registered on a folio (and consequently ROD only is considered unregistered land. There is a rule now however, that when any property changes hands it is subject to compulsory registration i.e. registration in the LR so that eventually all prop in Ireland will be registered). The folio is guaranteed by the State to be a confirmed record of the title to the property that it refers to. You can therefore use the folio to find out who has the title or ownership of a property, without having to read the original deeds.
The registers in the LR:
3 distinct registers concerning the ownership of land:
(i) register of freehold land; (ii) register of leasehold interests; and (iii) register of the ownership of incorporeal hereditaments held in gross (profits etc.).
Incorporeal hereditaments are basically
intangible rights like easements and profits (right of way, right to lay an ESB cable etc.). Those not held in gross are registered against freehold or leasehold interests.
Mirror principle:
Section 31 1964 Registration of Title Act (ROTC64) provides that the register is conclusive evidence of the landowner’s title and any right, privilege, appurtenance or burden as it appears on the register; doctrine of notice therefore does not apply, only in the absence of actual fraud will the registered title be affected by notice of a deed, document or matter relating to the land. In the case of fraud or mistake the court can order rectification on what terms it considers just.
Section 69 ROTC64 Burdens (e.g. court judgments, easements, profits, covenants relating to the use of the land, freehold covenants under Section 43 Land Conveyancing Law Reform Act 2009 (LCLRA09) and charges):
shows the mirror principle in operation. These are third party rights which must be registered in order to bind purchasers for value. The purchaser for value is only bound by those rights on the folio. If you hold one of these rights you must register and the purchaser is only obliged to check the folio.
Section 72 ROTC64 Burdens:
similar to Section 69 burdens but undermine the mirror principle (sometimes called a ‘crack in the mirror’). Here, the purchaser for value will be bound whether these interests are registered or not, and as such, these interests override the register.
So what now?
Registration of actual ownership of land in LR is legally superior to the ROD. As noted, the ‘Compulsory First Registration’ (since 2010) policy which is triggered once a property changes hands, will ultimately lead to the closure of the ROD and thereby facilitate progression of eConveyancing (this system has been stalled until the PRA receives more funding). Ireland has a comparatively high (93%) registration of land mass compared to other countries, representing about 88% of all legal titles in Ireland. While unregistered titles are very rare over much of the country, many of the titles that remain unregistered relate to particularly valuable commercial and residential properties located within urban inner-city areas of the two largest cities Dublin and Cork.
