Registration Systems and Priorities - Lecture Notes and Textbook (including legislation) Flashcards
What are the basic priority rules?
- You cannot give what you don’t have (law)
- Earlier claim is better (equity)
- Applies where you have two legal interests or two equitable interests competing with each other
Explain the bona fide purchaser rule
- The bona fide purchase rule applies where A holds an equitable interest which competing with B’s later legal interest.
- A holds an equitable interest as the trustee of a trust. Legal FS sold to a third party. That sale involves a breach of trust. It is wrongful. C gets land in fee simple subject to trust unless C is equity’s darling.
- B will take priority if:
a) He has obtained the legal estate
b) He has given value for the legal estate (proper value not nominal payment)
c) He has obtained the legal estate in good faith and without notice of the existence of the prior equitable interest. - Knowledge = Actual knowledge, imputed knowledge or constructive knowledge.
- Measure requirements at the time the purchaser paid out their money – Important as the purchase of land often unfolds in stages
Bona Fides and without notice
* Time: Tourville v Naish (1734) 3 P. Wms. 307
see case note
What is the meaning of notice?
s.86 LCLRA 2009:
(a) Actual – What you actually
(b) Imputed – What your agents know
(c) Constructive – What you don’t know but what you could have found out by reasonable diligence where under a duty to do so
Explain the rule in Hunt and Luck.
- When you buy an interest in land, it is your job as a prospective purchaser to inspect the land and if there is anyone in occupation of the land who is not the vendor, that should alert you to the fact that there could be persons with an interest in that land other than the vendor
- Duty to ask questions and get answer.
- If you don’t inspect the land, you’re taking a risk. If you take the risk, you take the land subject to that person’s interests.
- It only applies if we are dealing with a prior equitable claim conflicting with a later legal interests
What are the elements of constructive notice?
Failure to investigate known encumbrances
Failure to make such inquiries as a prudent purchaser would make.
Agra Bank v Barry
see case note
Elements of the Rule – The Legal Estate
- The rule only applies where the purchaser acquires the legal estate.
- If this does not happen then the first in time rule applies (whoever has the older claim wins)
Mere Equities
- Arises where there is a right to have a transaction set aside but the right has not yet been exercised.
Allied Irish Bank v Glynn [1973] IR 188
Registry of Deeds
- Established in 1708 by the Registry of Deeds Act 1707
- Registry of Deeds – Doesn’t say who the owner of the land is. Give you summaries of documents which have affected title to the land. Search the register against the name of the person offering to sell you land. Get back a set of results against that name where that individual was a purchaser in a deed.
- Get a memorial (now called a registration form) – Summary of the transaction – Who was the purchaser and vendor? What was the transaction? Date of the transaction. Date that the memorial was entered into the Registry of Deeds. – You should be able to find a memorial that corresponds to all the deeds in a pile of documents handed to you by the vendor – Get all the way back to Good Market Title?
- Cumbersome and expensive process – Someone needs to go to do the search who knows what they are doing, pay the search fee, run the searches and someone skilful enough to interpret the results
Land Registry
- Take land into the registration system when an event on title happens e.g. land is sold. Prepare an application for first registration. Take all the documents to the land registry. A title examiner looks at them and works out what the result is for the title. That goes into a state database. E.g. John owns Blackacre. Once you have done this once – Rules change. Title to that land is registered.
Deeds Registration
- Non-compulsory system of registering documents.
- A deed is “a document by which an estate or interest in land is created, transferred, charged or otherwise affected … whether under seal or not.”
Memorials
Name and date of the deed
Names of the parties
Description of the property
Date of the registration
Serial number (assigned by the registrar)
General nature of the deed
Registration and Priority
- Registered v Registered - Who registered first
- Unregistered v Unregistered – Depends on whether Legal interest v Legal interest; Legal interest v Equitable interest or Equitable interest v Equitable interest
- Unregistrable v Registered – That deeds can be registered or unregistered is ignored – O’Connor v Stephens (1862) 13 Ir CLR 63
- Registrable but unregistered v Registered
- Didn’t want the 1707 statute to perpetuate fraud.
- Forbes v Deniston (1722) 4 Bro PC 189 and LeNeve v LeNeve (1748) 3 Atk 646 – Registered document takes priority only where the person with the registered document didn’t have actual or constructive knowledge of the prior transaction
- Re: Fuller [1982] IR 161- Title to a car park for sale in Bantry/Santry?. Bought by a shop owner intending to use the car park for his shop. Commonly held view locally that that land had been previously the subject of a transaction – What level of knowledge do you need to have? – SC said as a PP of land, you are not bound by pub talk, you need actual knowledge. Change = Need actual knowledge to trigger forbes and Le neve rule not just constructive knowledge.
- Reilly v Garnett (1872) IR 7 Eq 1
* s.25 – Failure to register within 6 months (or longer with the consent of the Registrar or the Court) results in the purchaser/assignee acquiring no interest or estate in the land.
Conclusivity
- s.31(1) – The land register is conclusive evidence of the ownership of land
- s.85(2) – The register is not generally conclusive as to boundaries
s72 RTA 1964
Burdens Affecting the Land without Registration – Overriding Interests
s.72 RTA 1964 – This stuff doesn’t appear in the folio but nonetheless overrides what is on the folio. Usually stuff that is created without a document.
a) Succession taxes, state rents arising from fee farm grants
b) Land improvement and drainage charges
c) Annuities under the Land Purchase Acts and other Irish Land Commission rights
d) Public rights of way
e) Customary rights arising from tenure
f) Easements and profits not registrable under s.69
g) Leases for a term of less than 21 years
h) Rights of persons in occupation
i) Covenants and rents arising under a Deasy’s Act grant
j) Annuities and associated rights under the Labourers Act 1936 –
k) Rights acquired (or being acquired) by adverse possession.
s.72(1)(j) – Persons in actual occupation
“the rights of every person in actual occupation of the land or in receipt of the rents and profits thereof, save where, upon enquiry made of such person, the rights are not disclosed”
- Kingsnorth v Tizzard
- Friends Provident v Doherty [1992] ILRM 372
s69 RTA 1964
Section 69 Registered Burdens – Bind the land only to the extent that they are registered
a) Encumbrances at the time of first registration
b) Charges created after first registration
c) A rent charge or fee farm grant
d) A power or trust to charge the land as security
e) A vendor’s lien for purchase money
f) Leases for lives or for more than 21 years
g) Court orders under the Family Law Acts
h) Judgment mortgages
i) Easements, profits created after first registration
j) Restrictive covenants
k) Powers of appointment, distress or rights of entry
l) Rights of residence
Documents Losing Priority without Registration
- S38(1) RDTA 2006 – Registered deeds based on priority
- S38(2) – Unregistered deeds void against registered deeds
- S38(3) – Doesn’t apply where the holder of a registered deed had notice of an unregistered deed
The Effect of Priority between Deeds
- Registered vs Registered = Order of their registration s38(1) regardless of whether interest is legal or equitable (Eyre v Dolphin)
- Unregistered vs Unregistered = Unregistered principles apply (Tench y Molyneux)
- Unregisterable vs Registered = Pigot CB in O’Connor vs Stephens = Not the intention of the legislature
- Registrable but unregistered vs Registered = Not registered interest is void but two exceptions
1. Actual Notice - A knows B entitled to some interest under a registerable but unregistered deed; Obtains similar or conflicting interest and registers it to get priority over B = Fraud (Bushell v Bushell)
- A doesn’t know that B has an interest at the time of acquiring the land and later does and then registers to get priority over B = Allowed, advancing self-interest (Reilly v Garnett)
- Forbes v Deniston – A’s conscience affected if actual notice; followed in Le Neve v Le Neve (mala fides)
- Same for imputed notice (Re Bourke’s estate)
- Not constructive notice (Reilly v Garnett)
2. Volunteers - If the owner of the registered document has not given consideration, then bound by earlier unregistered deed. Christian LJ in Reilly v Garnett
Boundaries and Maps
- S85 RTA 1964 – Mapping and Land Registry not conclusive but courts presume correct until contrary is proven (Gannon v Ní Ghruagain)
- Boyle v Connaughton – Laffoy J = Account for minor errors
- Still have compensation for larger errors – Lagan Bitumen Ltd v Tullagower Quarries Ltd = HC held 1/3 not minor
- S32 – Rectification of land registry maps by Tailte Éireann with registered owner and other interested parties consent; “without injustice” equitable jurisdiction
Thompson v Foy
- Thompson v Foy – 1. Ordinary words and physical presence; 2. Can be caretaker or company representative; 3. Licensee not a representative of the occupier does not count as actual occupation by the licensor; 4. Claimant’s furniture presence does not mean actual occupation; 5. Not physically present – Necessary to show occupation manifested and accompanied by a continuing intention to occupy – 1. Ordinary words and physical presence; 2. Can be caretaker or company representative; 3. Licensee not a representative of the occupier does not count as actual occupation by the licensor; 4. Claimant’s furniture presence does not mean actual occupation; 5. Not physically present – Necessary to show occupation manifested and accompanied by a continuing intention to occupy
Cautions and Inhibitions
S92(2) RTA – Not allowed on Register
Cautions – S97 RTA;Form supported by affidavit showing evidence of right; Tailte Éireann – Transfer of land for value – Cautioner gets 21 days’ notice
Inhibitions
- Prevent the registration of any ispositions that would prejudice the rights of the inhibition holder for a specified period or until a specified event occurs or until get the consent of a specific person
- Ordered by a court or inserted onto the Register after an application to Tailte Éireann
- PF interest which justifies inhibition; submissions from registered owner
- S98(3) RTA 1964 – Court discretion to vary or cancel inhibitions “as the justice of the case requires”
Lites Pendentes:
- Lis pendens – Part 12 2009 Act
- S121(2) – Must relate to a question of of title to the land concerned; not just any litigation about the land
- S69(1) – Lis pendens as burden against the land
- Cancelled by deletion from the Register of the Central Office
- S123 – Cancellation; includes undue delay
Transfer for value
- RDTA 2006 – Take for valuable consideration = Take title subject to:
1. Registered burdens under s69
2. Cautions and inhibitions
3. S72 interests
4. Actual fraud or mistake
Transfer not for value
RDTA 2006 – Take title subject to:
1. Registered burdens under s69
2. Cautions and inhibitions
3. S72 interests
4. Actual fraud or mistake
* Take subject to:
1. Above four categories of interests
2. Under s52(2) RTA 1964, any unregistered rights which bound the transferor
Adverse possession
- Can register title (s49(2)RTA 1964); Original title extinguished (s49(3)) but not valuable consideration