registration of land

Question 1

Introduction

Answer 1

• Land registration systems regulate rights, provide proof of ownership, protect owners and buyers, and support land-based financial transactions essential to the economy.
• There are two systems of land registration:
  1. Registration of title system – Record of Title (Ireland) Act 1865 and Registration of Title (Ireland) Act 1891 – takes place in the land Legistry
  2. Registration of Deed System – established by Registration of Deeds (Ireland) Act 1707
• Since 2006 – the land Registry and the Registry of Deeds are managed under the umbrella of the Property Registration Authority.

Question 2

I. The land registry

Answer 2

• The ownership of the land is registered: a list of owners of land; particulars of the properties owned; charges and restrictions affecting them.
• Register is always up to date and conclusive of title. Buyers are protected from official errors, and anyone can access current ownership and burden details.
• The Irish system is a hybrid. Introduced in 1865 and reformed by the 1891 Act, it made registration compulsory for land bought under the Land Purchase Acts. Most registered land is rural, not urban.
• The 1891 system was replaced in 1964 by the Registration of Title Act 1964, and this has recently been amended and updated by the Registration of Deeds and Title Act 2006 and the Land and Conveyancing Law Reform Act 2009.
• The main objectives of the 1964 Act were to simplify the conveyancing process and facilitate the registration of title over property interests. It essentially provides a document confirming ownership, making subsequent transactions easier and more transparent. By registering land, the process is streamlined, and transactions become more attractive, with registration sometimes being a legal requirement under the Act.

Question 3

The 1891 system

Answer 3

• The 1964 Act established a central land registry in Dublin with four registers for:
  1. Freeholders (full or limited owners),
  2. Leaseholders,
  3. Proprietors (local authority housing), and
  4. Subsidiary Interests.
• Registered land could carry both registered and unregistered burdens (e.g., easements, covenants, land purchase annuities).
• The system aimed to provide conclusive proof of ownership—the mirror principle—with each owner receiving a land certificate as evidence of title.
• Registration was voluntary (except under the Land Purchase Acts), and much urban land remains unregistered due to the cost and complexity of first registration. Once registered, all dealings had to be recorded in the register. An insurance fund was created to compensate for losses caused by registration errors.

Question 4

Defects in the 1891 system

Answer 4

• A key defect was that most titles registered under the Land Purchase Acts, the majority of all registered titles, were recorded “subject to equities.” The Acts transferred the fee simple to the tenant but without investigating existing third-party rights. As a result, titles were registered with a note of equities, effectively preserving unregistered burdens as if no registration had occurred, undermining the goal of certainty in title.

Question 5

Registration of Title Act 1964 / Registration of Deeds and Title Act 2006

Answer 5

• Under Section 8 of the 1964 Act, the following interests can be registered:
  1. Freehold interests (fee simple, fee tail, life estates),
  2. Leasehold interests,
  3. Incorporeal hereditaments held in gross and other rights.
  4. The 2006 Act introduced recognition of electronic registers.
• Importantly, it is the interest in land, not the land itself, that is registered. The register is conclusive only for what appears on it.
• General rule: A purchaser for value is not affected by unregistered interests, even if they had notice, except where:
  1. Section 72 burdens apply (e.g. easements, short leases, covenants).
  2. The purchaser engages in fraud involving an unregistered but registerable interest.

Question 6

Rectifications of the register

Answer 6

• Ss. 31 and 32 of the 1961 Act, as amended by s. 55 of the 2006 Act – Rectification of the register is allowed in limited circumstances, such as fraudulent registration or registry errors, with consent from all interested parties. It can be carried out by the Property Registration Authority or courts.
• Section 120 of the 1964 Act – A person who suffers loss from an official error, uncorrected error, or fraud is entitled to compensation from the State.
• Crumlish v Registrar of Deeds and Titles – in November 1978, the vendor transferred land to A and B as joint tenants for consideration, but it wasn’t registered until January 1980. In February 1980, the vendor transferred the same land to Crumlish, and this was lodged for registration in March. Due to a mistake, both transactions were registered in separate folios as full owners.
  o Under the regulations, the first transfer lodged receives priority, but the Registrar attempted to rectify the error by making the plaintiff’s entry null and void. The applicant argued that this exceeded the Registrar’s power, and the judge agreed, ruling that the Registrar could only rectify the register with the consent of all parties involved.
• Lac Minerals v Chevron Mineral Corporation of Ireland – there had to be some connection between the document sought to be rectified and the applicant. They must be affected by the mistake registered.

Question 7

The central office

Answer 7

• All land in the country is now registrable in the Central Land Registry, managed by the Chief Executive (CE) of the Property Registration Authority (PRA). The CE heads both the Land Registry and the Registry of Deeds, collectively known as The Registries. The CE has quasi-judicial powers, including the authority to:
  o Require the attendance of relevant persons for registration matters,
  o Demand evidence related to title (e.g., documents, maps, surveys),
  o Examine individuals under oath (s. 16 of the 1964 Act).
• The Land Registry operates three offices in Dublin and one office in Waterford, serving the southern counties.

Question 8

Maps and boundaries

Answer 8

• The Central Land Registry uses Ordnance Survey maps to define the boundaries of registered land, but the description on the Register is not conclusive. Neighbouring landowners can apply to the PRA to have their boundaries marked as “conclusive” on the register. The PRA can also confirm a boundary as conclusive when part of the land is transferred, and the Registrar can settle boundary disputes during transfers.

Question 9

Folios

Answer 9

• Under the 1891 Act, a folio represented the registered title, describing the land, the first owner, and all subsequent dealings. These folios became bulky.
• Under the 1964/2006 System, the folio is divided into three sections:
  o Section 1: Details of the property, including description, location, land registry plan, and attached rights.
  o Section 2: Information on registered owners, title quality, and any cautions or inhibitions.
  o Section 3: Lists burdens on the property, such as mortgages and rights of way. Most folios include a plan map of the property.

Question 10

Compulsory registration

Answer 10

• The 1964 Act aimed to extend the registration of title system through both compulsory and voluntary registration. Landowners could voluntarily register their land, but certain cases still require mandatory registration, with minor amendments in the 2006 Act (s. 23).
• Compulsory registration under Sections 23 and 24 applies to: Land conveyed under the Land Purchase Acts, All freehold and leasehold land when:
  o Acquired by a statutory authority, or
  o Located in areas designated by the Minister for Justice.
• Carlow and Meath ad Laois were the first counties with compulsory registration (1970) – Dublin and Cork the last (2011)
• Section 25 1964 Act – If registration becomes compulsory, the person won’t acquire the estate or interest unless registered within six months (or later, if allowed). Once registered, ownership is backdated to the conveyance date, and any dealings between execution and registration are noted retrospectively.

Question 11

Classes of owners and classes of title under the 1964/2006 Acts - Classes of owners

Answer 11

• Under the 1964 Act, freehold landowners could be registered as either full owners (fee simple) or limited owners (e.g., fee tail, life estate, tenant for life under the Settled Land Acts). Similarly, for leasehold titles, owners were registered as full or limited owners under the same system.
• The 2009 Act changed this by removing references to full/limited owners and introduced a trust for land system, where trustees are now registered as the owners of the land.

Question 12

Classes of title

Answer 12

• Section 37 – Absolute title: The best title for freeholders, subject only to registered and unregistered burdens, with no doubt about its strength. Leaseholders can also have this title.
• Section 39 – Qualified title: Applies to both leasehold and freehold titles, arising when there’s doubt about the title, such as limited evidence or qualifications.
• Section 38 – Possessory title: Applies to both leasehold and freehold titles, offering no guarantee for matters before first registration, but being conclusive for dealings after. It’s used for those with title from adverse possession but no documentary evidence prior.
• Section 40 – Good leasehold title: Similar to absolute title but applies only to leasehold property.
• Under s.50 of the 1964 Act, titles can be converted from a lower class to an absolute title if the Property Registration Authority (PRA), on application or its own initiative, is satisfied that the new title class is justified. This can be based on the passage of time, new evidence, or other reasons.
• If land has been vested by the Irish Land Commission and remained vested for 15 years, the PRA will register the title as absolute for freehold or good leasehold for leasehold titles, upon receiving satisfactory evidence that the person is still in possession.

Question 13

The mirror principle

Answer 13

• Registered land operates under the principle that the register is conclusive. The folio (or Land Certificate) reflects all interests in the land and serves as conclusive evidence of title, governed by the mirror principle.
• Section 31 of the 1964 Act – the register is conclusive proof of the owner’s title and any rights or burdens shown on it.
• The Act recognises two types of burdens:
  1. Registrable burdens – must appear on the register.
  2. Overriding burdens – affect the land even if not registered.

Question 14

i. Registrable burdens

Answer 14

• Section 69 – allows certain non-ownership rights over land to be registered.
• These interests will only bind purchasers for value if they are actually registered. Therefore, holders should register their interest to protect it.
• Registration can be done by the landowner or the interest holder (with the owner’s consent). If consent is refused, a court order is needed.
• These registrable burdens include: Mortgages; Express easements / profits a prendre; restrictive covenants as to the use of the land; freehold covenants within the 2009 Act; fee farm rents; judgment mortgages; vendor’s lien for unpaid purchase money; profits a prendre; certain rights of residence.
• Section 69 burdens bind purchasers for value only if they are registered. Unregistered burdens will not affect such purchasers.
• However, those who acquire land without consideration are bound by s.69 burdens whether registered or not.
• Registered burdens are ranked by the date they are entered on the register; unregistered burdens rank by their date of creation.

Question 15

ii. Burdens affecting the Land without Registration

Answer 15

• Section 72 burdens, known as overriding interests, bind purchasers whether or not they are registered. This is a major exception to the mirror principle, which normally makes the register conclusive.
• Because registering every right would be too complex and costly, s.72(1) recognises certain burdens that affect land regardless of registration. These burdens override the register and bind purchasers even if they have no notice of them.
• Under s.72(2), if it’s clear that such a burden does not affect the land, the PRA can note that on the register.
• Under s.72(3), the PRA can enter a notice of such a burden with the owner’s consent.
• Examples of s.72 burdens include: Land purchase annuities; Public rights and franchises; Short tenancies (≤ 21 years) where the tenant is in occupation; Rights under the Statute of Limitations; Rights of people in actual occupation or receiving rents (unless undisclosed on enquiry); Succession duty; Land improvement or drainage charges.

Question 16

Section 72(1)(i)

Answer 16

• The most challenging aspect of section 72 is s.72(1)(i), which covers the rights of those in actual occupation or in receipt of rents. These rights bind purchasers automatically, even if they were not aware of them. This replaces the older doctrine of notice with a stricter standard.
• A purchaser must actively identify occupants and ask about their rights. If they fail to do this, they are still bound by the occupant’s rights, regardless of notice. The occupation must show some permanence but does not need to be continuous.
• De Londras’ example illustrates the risk for purchasers: A lives in a house with their partner and has unregistered rights. A works in New York for 10 months, returning every two months. Despite being intermittently away, A is still in actual occupation, and a purchaser may be unaware of this. However, the purchaser is still bound by A’s rights when A returns and enforces them.
• Williams and Glyn’s Bank v Boland – a husband was the sole registered owner of the family home, but his wife had an equitable interest due to contributing to the purchase price (through a purchase money resulting trust). The husband created a registered charge over the house in favor of the bank.
  o The bank failed to inquire about the wife’s interest, despite her living on the property. The House of Lords ruled that the wife’s interest took priority over the bank’s registered charge, as the bank had not properly investigated her potential rights.
• Doherty v Doherty – a husband and wife bought a site for a house, with the wife paying for its construction. The property was registered solely in the husband’s name. They later took out a mortgage with the bank, during which the wife signed documents that the property was solely in the husband’s name and gave consent for the mortgage under the Family Home Protection Act 1976. The bank did not inquire about her interest in the property. The wife later sought to claim a beneficial interest in the property, but the court ruled:
  1. The wife had a beneficial interest in the property due to her financial contributions, making it an unregistered burden under s.72 of the Registration of Title Act 1964.
  2. There was no obligation on the bank to explain the mortgage to her since she had legal advice.
  3. The wife’s conduct and declarations led the bank to assume she had no interest.
  4. The wife was estopped from asserting her interest in priority to the mortgage.

Question 17

Cautions and inhibitions

Answer 17

• There are other interests which may be registered on a folio apart from those under s. 69.
• Section 97 allows anyone with an unregistered right in relation to registered land to lodge a caution with the PRA, preventing any dealings with the land until the cautioner is notified.

Question 18

Cation – Lyall

Answer 18

• A caution is temporary and serves to protect the cautioner until their unregistered interest can be registered. It restricts dealings with the land by the registered owner and requires notice to be given to the cautioner. It is entered by affidavit and is typically temporary unless the PRA decides otherwise.
• Section 98 – allows for the registration of an inhibition on the folio, preventing dealings with the land or charge. This can be ordered by the court or, with an appeal, by the PRA. The purpose is to protect the holder of an interest that cannot be protected by registration.

Question 19

Inhibition

Answer 19

• An inhibition is a more serious restriction on dealing with registered land, requiring consent from a specified person. It is entered by the Court or PRA upon the application of an interested person and is more permanent, lasting for a specified time or until further order.
• It may restrict dealings by anyone able to deal with the land and is used to protect interests that cannot be secured by registration.

Question 20

Trusts

Answer 20

• The general rule is that trusts cannot be entered on the register, meaning the purchaser does not need to enquire about the existence of a trust over the land. However, trustees must act according to their fiduciary duties and powers under the deed of trust. To protect their interest, a beneficiary can lodge a caution or an inhibition.

Question 21

Disabilities

Answer 21

• Before the 2009 Act, an infant or minor could be registered as such on the register. However, under the 2009 Act, when land is purported to be vested in a minor, it creates a trust of land, with the trustees being the registered owners.

Question 22

Bankruptcy

Answer 22

• The registrar of the bankruptcy court must now notify the PRA of every bankruptcy petition and arrangement. The PRA must then check if the individual is a registered landowner. If so, an “inhibition” will be entered against further dealings on the land. This inhibition can be lifted upon notice from the bankruptcy registrar that the proceedings have concluded.

Question 23

II. Registration of deeds

Answer 23

• “Unregistered land” refers to land registered under the Registration of Deeds (Ireland) Act 1707, not the Registration of Title Act 1964. So, while called “unregistered,” it is in fact registered—but only under a different, older system.
• The Registry of Deeds, established by the 1707 Act (now repealed and replaced by the 2006 Act), was designed to give priority to registered deeds and help prevent fraud in land transfers.
• Key points about this system include: (1) it registers documents, not title; (2) it accepts documents other than deeds (e.g. contracts for sale); (3) it does not verify the validity of documents; and (4) registration determines priority.
• As compulsory registration expands, the Registry of Deeds is expected to phase out.
• Under this system, deeds and instruments affecting land are registered through an application form (formerly a memorial). Its main function is to regulate priorities between documents relating to the same land, creating some order in unregistered land.
• Unlike the Registration of Title system, it does not guarantee title or the validity of the documents, its role is limited to establishing the order of priority among competing interests.

Question 24

Registering you deeds

Answer 24

• Any deed relating to land, along with other documents, may be registered in the Registry of Deeds. Documents that may, but don’t have to, be registered include transfers, settlements, mortgages, pending lawsuits (as lis pendens), judgments, court orders, and assents by personal representatives.
• If not registered, these documents lose priority to later registered ones.
• As Lyall explains: “As between a document which is capable of being registered but unregistered and a later registered document, the normal rule as to legal interests, that the first in time prevails, is replaced by the principle that the first to be registered prevails.”
• However, some documents must be registered, specifically, judgment mortgages and bankruptcy-vesting certificates of adjudication, otherwise they will not be effective.

Question 25

Priorities

Answer 25

- When multiple people hold interests in the same land and the land cannot satisfy all these interests, the law of priorities decides whose interest comes first. - The main aim of registration under the 1707 Act (as amended by the 2006 Act) is to establish a clear, straightforward system that gives priority to registered interests, based on the order in which they are registered. - Under this system, a registered deed takes priority over both an unregistered deed and a later registered deed. - Section 37 of the 2006 Act assigns a serial number to each application for registration, and section 38 confirms that priority is based on these serial numbers. However, the older equitable rules of priority were not entirely abolished, so the statutory and equitable systems continue to operate in parallel. - To figure out which system applies: 1. Consider if all the interests can be registered pursuant to the 1707 Act – if they can’t, then the equitable principles apply. 2. If all the interests can be registered, consider if at least one is registered. 3. If so, apply the registration rules under the 1707 Act. 4. If not, then apply the equitable principles.

Question 26

The equitable interests

Answer 26

- Where at least one interest cannot be registered, or where all interests could be registered but none was, the equitable principles apply. - Two key questions arise: (a) when was the interest created? and (b) is it legal or equitable? If both are legal or both are equitable, the first created prevails. A legal interest will also prevail over a later equitable interest. - However, if an equitable interest is created first, it will usually have priority, unless the later legal interest is held by a bona fide purchaser for value without notice, in which case the legal interest takes priority.

Question 27

The registration of deeds system

Answer 27

- The Registration of Deeds Act (Ireland) 1707 introduced a straightforward system of priority that applies where all interests are registrable and at least one has been registered. - If none are registered, equitable principles apply instead. - Under the Act, priorities are determined solely by registration, regardless of whether the interests are legal or equitable. The first registered interest takes priority, and any registered interest will prevail over an unregistered one.

Question 28

Application form

Answer 28

- When documents were submitted to the Registry of Deeds, a memorial, a summary of the deed’s effect and date, was created and registered. Under section 6 of the 1707 Act, three requirements had to be met: a) the deed or conveyance must be properly executed; b) the memorial’s execution had to be witnessed by two people, one of whom must also have witnessed the execution of the original deed; and c) that shared witness had to swear an affidavit confirming the memorial’s signing and sealing, the deed’s execution, and its delivery to the Registrar. - Section 7 of the 1707 Act required the memorial to include the date of perfection, party and witness details, and property information. - From 1 May 2008, the memorial was replaced by an Application Form under new Registry of Deeds rules (Rule 6). - This form includes the deed's date, party details, and property description. If completed by a solicitor, it only requires a signature; otherwise, it must be sworn. - For documents prior to May 2008, memorials were used, but now only the Application Form is required for registration.

Question 29

Searches

Answer 29

- A Registry of Deeds search reveals interests over land and can be done by anyone. There are two types of searches: o Hand Search: Done by the applicant or a professional, where they extract and note memorials, with liability on them. o Official Search: Conducted by a Registry official, resulting in a certificate. - Negative and Common Searches have been replaced by the Official Search under new rules.