The content of the information
GENERAL ISSUES:
A) PROPERTY
1. Description:
The property is described in Part (1) of the folio. See example attached. It will state the County in which the property is situate. The folio number assigned is included and will indicate if the property is held as freehold or leasehold (subject to a term of years). The property will have a common description by reference to street/parish or if in rural area by reference to a townland and barony. The property will have a land registry plan reference number attached which will link to a seedpoint on the title plan associated with the folio. Details of property transferred from the folio are also contained in Part 1.
Any rights that attach to the land are included (i.e for example if the land benefits from a right such as a right of way over another property; this is known as an appurtenant right and if registered, will be shown on Part 1). Many appurtenant rights are not registered on the folio benefiting from the right (dominant tenement) but will be registered on the property burdened by the right (servient tenement).
2. Condominium or not.
There are certain requirements to be met for mapping of multi-story unit(s). See practice direction on our website.
3. Cadastral identification.
The information is recorded on the map by reference to a plan number which has an associated seedpoint to relate directly to the property on the digital map.
4. Degree of legal protection of the physical data.
The question is not clear. The legal protection afforded by registration is dealt with in Part 111? Does this relate to legal conclusiveness of boundaries? If so:
Neither the description of the land on a Folio or its identification by reference to the Registry map is conclusive as to its boundaries or extent. [Section 85(2) of the Registration of Title Act, 1964, as substituted by section 62 of the Registration of Deeds and Titles Act, 2006].
The precise line of the property boundary on the Registry Map is undetermined. The Registry map does not indicate whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence or its inner or outer face or how far it runs within or beyond it; or whether or not the land registered includes the whole or any portion of an adjoining road or stream.
However, the non-conclusive boundary system does not dispense with the requirement that the location of the physical features must be accurately defined on the application map within the limitations of the original scale of the map. Section 85 (description of registered land) of the Registration of Title Act of 1964 as substituted by section 62 of the Registration of Deeds and Titles Act of 2006.
B) OWNERSHIP
1. The matrimonial regime which involves this property.
Ownership details are shown on Part 2 of the folio. If the property is held jointly or as tenants in common this is reflected on the register. The matrimonial regime is generally not shown, although there is provision for registration of a notice of either (1) a marriage or (2) the existence of a civil partnership in Part 2 of the folio. If such a notice of marriage or civil partnership is registered, notice of any dealing lodged is then served on the party concerned.
Generally the purchaser’s solicitor is primarily responsible for compliance with the family law/civil partnership acts as he/she he has the means of knowledge and opportunity (inspection and requisitions on title) to ensure compliance. A purchaser has a duty to make full enquiries on the matter. The position is not investigated by the Land Registry prior to registration other than to check for the existence of either a notice of marriage or civil partnership in part 2 or proceedings under family and civil partnership legislation registered on the folio in Part 3.[Note: It is possible to register the existence of legal proceedings relating to the family home on marriage or shared home for civil partners under the relevant legislation on Part 3 of the folio].In the absence thereof, registration may proceed.
2. Trustee or mortgagee in case of fiduciary mortgage.
There is no provision for the registration of trusts on the register. Such interests are equitable interests and therefore not legal interests in land capable of registration and can be protected by registration of a caution or inhibition.
3. Acquisition title. Date of acquisition.
Date of acquisition is the date on which the application is lodged for registration. Where title is registered for the first time, the date is not the date of registration of the lodgment of the application, but the date upon which the investigation of title is completed.
C) MORTGAGES AND BURDENS
Part (3) of the Folio shows details of the owners of registered burdens affecting the property and falls under Section 69 of the Registration of Title Act, 1964. Various burdens are capable of registration under this section and include mortgages, easements and profits a prendre, rights such as residence support and maintenance created in an inter vivos gift of a property, court orders, etc. The most common registration under this section is mortgage.
Mortgages:
A mortgage is registered under Section of the Registration of Title Act 1964 on lodgment in the correct form. The Rules for registration of mortgages have recently been revised under Land Registration Rules 2011 (Rule 5 refers). Many such transactions are registered and include residential and commercial mortgages and debentures. The only way a mortgage can be created since the Land and Conveyancing Law Reform Act, 2009 is by means of a deed of charge. Registration is made when the charge is then lodged for registration in the correct form. Persons other than registered owners may also have the power to charge e.g. personal representatives of registered owners, person entitled to be registered as owner.
Charge for present and future advances:
A charge in Form 114 is the form prescribed form for residential mortgages, and in Form 115 for Debentures and Commercial Mortgages, both of which relate to a charge for present and future advances.
In respect of Debentures and Commercial Mortgages executed on or after 1st March 2012, where a specific charge on registered land is intended to form part of the security, Form 115 must be used as the prescribed form in accordance with Section 62(2) of the 1964 Act. It is a simple one page document intended as supplemental to the principal deed of Commercial Mortgage/Debenture. The mortgagor will be require to execute both documents but only the one page Form 115 will be lodged with the Authority, the Debenture/Commercial Mortgage to be retained by the lending institution.
Both new forms may be adapted by individual lenders in accordance with Rule 52(1) of the aforesaid rules.
Charge for principal sums:
The correct form of charge for registration of ownership of a charge for a principal sum is in Form 67.
The amount the charge is intended to secure is not shown on the folio and charges do not attract stamp duty and therefore are not required to be presented to the Revenue Commissioners prior to lodgment for registration. If the mortgagor is a company there are certain requirements which must be met under company law legislation prior to lodgment. Failure to do so will lead to appropriate notice being registered under the registration of the charge.
The registered owner of the property must assent to the registration of the charge as a burden against the property and this is incorporated in the body of the Forms.
Registration of a charge is not compulsory however no interest in the land is vested in the creditor until the charge is registered, and the creditor does not become entitled to the statutory rights and remedies of a chargee until registration is made. Once registration is completed (which is effective from the date of lodgment) the mortgagee has the benefit of Section 62 of the Act, which includes a power of sale in the event of default and repossession. However certain requirement must be met before such power can be exercised such as evidence of consent or a court order. Priority is established as of date of registration. Where there is more than one mortgage over a property, the basic rule is that standard securities rank according to the dates of registration. As between a registered charge an unregistered mortgage, the registered one has priority.
Rules and requirements for registration of a mortgage:
1. Form 17
2. Fee €125
3. Appropriate Form Deed of Charge with charging clause and assent clause
4. Charge must be signed by the borrower and witnessed
5. The property must be properly identified by reference to its folio number and/or map if over part of a folio
6. Borrower must show entitlement to charge (e.g. as registered owner, as person entitled to be registered owner etc.)
Priority is established as of date of registration. Where there is more than one mortgage over a property, the basic rule is that standard securities rank according to the dates of registration.
Easements:
Registration of easements is provided for in Section 69 of the Registration of Title Act, 1964, which provides for the registration of any easement, profit à prendre or mining right created by express grant or reservation. Registation is made on foot of lodgment of the deed with the right expressley granted therein and marked on a map which is acceptable for registration. The assent to registration of the burden on the folio of the property burdened by the right is required (i.e the servicent tenement).
An easement is a right which an owner of land has by virtue of that ownership, over neighbouring land. There are different types of easement.All easements are created for the benefit of one property known as the dominant tenement and burden the property of another known as the servient tenement. The easement most commonly encountered is an easement right of way; others include pasturage and the right to water (wayleave). There are four essential features of an easement:
1. There must be a dominant and servient tenement
2. The right over the servient tenement must be for the accommodation of the dominant tenement
3. The ownership or occupation of both lands must be in the hands of different persons
4. Such rights must be created by way of grant in so far as they are capable of affecting land.
A profit a prendre (right to take) is the right to go on to another persons and to take something from it regarded as belonging to it naturally as produce of that land e.g. timber, fishing, turf. It can exist as between neighbouring owners of land but is commonly held in gross i.e. independently of any land owned by the holder of the profit.There are three categories of profits:
1. Those which are appurtenant to lands e.g. mineral rights, turbary rights
2. Those which are appendant to lands i.e. attached by operation of law. Some of these are rare rights of common pasturage rights created under feudal grants of land.
3. Those held in gross i.e. independently of land e.g. fishing rights
There may be registered as affecting registered land any easement profit a prendre or mining right created by express grant or reservation after the first registration of the land. Those created prior to first registration are burdens which affect property without registration. An easement may be created by express grant (hereby grants or together with a grant of right of way) or by reservation (excepting and reserving a right of way). Both cases must be created by deed. The most common types of deed registered are (a) a disposition (transfer) containing either an express grant or express reservation and (b) a deed of grant of easement (a deed setting out the conditions affecting an area of land) containing an express grant. The deed creating the easement must nominate and identify both the burdened property and the benefited property.
Registration is made on lodgement of the deed together with Form 17 and fees. The application can also be made on the prescribed Form 80 and under Rule 130. The requirements of Rule are met by identifying the folio number of the dominant tenement (if any). It the dominant tenement is not registered, title to it should be established and the property identified on a map. Registration is effected as of date of lodgment.
Rules and requirements:
1. The deed or Form 80 must be dated
2. The grantor/grantee identified as owners of registered property
3. The dominant/servient tenements identified
4. As with all burdens the registered owner should assent to the registration of the burden on the folio
5. The deed to be signed and witnessed
6. Fees
7. Map
The Property Registration Authority has recently establised a scheme whereby easement and profits a prendre acquired by prescription (long user) can be registered on foot of an affidavit in the appropriate Form for uncontested rights based on long use. These types of applications were previously dealt with in court. A person claiming such rights can now either go to court (if contested) or if uncontested has the option of applying directly to the Authority. The claim is grounded on affidavit showing that requirements at common law have been met to establish such rights, notice is served by the Authority and in the absence of valid legal grounds of objection, registration is effected as of date of completion of investigation into the establishment of the right (as opposed to date of lodgment).
Rules and requirements:
1. Form 17
2. Form 5A
3. Map
4. Fees
Usus Fructus:
The term is not used in Irish common law. See the above for reference to the rights attaching to lands (dominant tenement) by virtue of long user over the lands of another (servient tenement) or acquired after first registration by deed.
Annotations by judicial measure:
Court orders are capable of registration under Section 69(1) the Registration of Title Act 1964. Provision is made for registration of orders made pursuant to family home or shared home legislation e.g. Property Adjustment Orders. The Court may order the Register to be changed at the direction of the court and any such order is complied with.
Attachment:
Judgments of the High and Circuit Courts for a liquidated sum [i.e. judgments which require the payment of a sum of money] are capable of being registered. A decree of the District Court for a liquidated sum is also capable of being registered as a Judgment Mortgage.
Judgments obtained abroad, outside EU member States, are not generally capable of registration as judgment mortgages. However, the High Court has jurisdiction to make enforcement orders, in respect of foreign judgments, made by Courts of competent jurisdiction, for payment of fixed money sums. Since 1988, there has been legislation in place giving effect to the Brussels Convention 1968, (as amended), for the enforcement of judgments in civil and commercial matters throughout EU Member States. The Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 [No. 3 of 1988], (as amended by Jurisdiction of Courts and Enforcement of Judgments Act, 1993 [No. 9 of 1993]), was repealed and consolidated by the Jurisdiction of Courts and Enforcement of Judgments Act, 1998 [No. 52 of 1998]. Except for Denmark, enforcement of judgments of member states is now governed by the Brussels I Regulation of 2002, (Council Regulation [EC] No. 44/2001). This is given effect to in European Communities (Civil and Commercial Judgments) Regulations 2002 [S.I. No. 52 of 2002].
If a judgment creditor wishes to enforce a judgment in Ireland, which was obtained in the national Courts of another EU Member State, an application for recognition and enforcement of that judgment must first be made to the Master of the High Court. The Master will deal with such application in accordance with Brussels I Regulation. An application for registration of a judgment mortgage, in respect of a judgment obtained in another EU Member State, must be accompanied by the order of the Master of the High Court.
Exception on n uncontested claim:
An exception to this procedure is contained in section 7 of European Communities (European Enforcement Order) Regulations 2005 S.I. 648 of 2005 [which implemented into Irish Law, Regulation (EC) No. 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims- effective from 21st October 2005]
“Where a judgment, court settlement or authentic instrument on an uncontested claim has been certified as a European Enforcement Order in a Member State of origin, that Judgment, court settlement or authentic instrument, as the case may be:
a) shall be of the same force and effect as a judgment of the High Court, and
b) may be enforced by the High Court, and the proceedings taken on it, as if it were a judgment of that Court”.
To register such a foreign judgment [for EU counties except Denmark]
• There is no need to acquire an order of the Master of the High Court .
• An application for a European Enforcement Order shall instead be made to the Court which delivered the judgment on the uncontested claim [See section 8(1) of 2005 Regulations] and the Order be lodged with the LR Form 112 application.
• A translation into English of the European Enforcement Order [if in a different language] should be requested.
• No enquiry should be made by the Authority as to whether the judgment issued on foot of an uncontested claim if the relevant European Enforcement Order is provided.
• LR Form 112 should include the usual details of the Court of issue together with details of the European Enforcement Order. There is no need to have the certificate from the proper officer of the court added after the affidavit [LR Form 112] as the details of the enforcement order are part of the affidavit.
Dispute:
If there is a legal dispute and proceedings have been initiated which relates to registered property, a notation can be made on the register of notice of the proceedings by registering a lis pendens. If the property is the subject of family home/shared home proceedings, an entry can be made of the existence of a Property Adjustment Order.
Prohibition:
The court or, subject to an appeal to the court, the Registrar, on the application of any person interested in any registered land or charge, may, after directing such inquiries (if any) to be made and notices to be given and hearing such persons as the court or Registrar thinks expedient, make an order or, in the case of an application to the Registrar, an entry, inhibiting for a time, or until the occurrence of an event to be named in the order or entry, or except with the consent of or after notice to some specified person, or generally until further order or entry, any dealing with any registered land or registered charge.
Any person entitled to any right in, to, or over registered land or a registered charge, may, on producing an affidavit in the prescribed form of his right, lodge a caution with the Registrar to the effect that no dealing with the land or charge is to be had on the part of the registered owner until notice has been served on the cautioner.
