Burdens – Cancellation of Burdens

  1. Introduction
  2. Forms of Discharge
  3. Notices and Objections
  4. Proofs required for cancellation of charges
  5. Partial Discharges
  6. Treatment of applications to cancel various specific burdens and the proofs required for cancellation
  7. Cancellation of Judgment Mortgages
  8. Cancellations pursuant to Rule 104
  9. Cancellation of Prohibition Notes
  10. Cancellation of Burdens: Effect of Rule 101
  11. First Schedule
  12. Second Schedule

1. Introduction

The Land Registration Rules, 2012 make provision for the cancellation or modification of Charges and Burdens on the Register. The governing Rules include: Rules 52, 72, 77, 101, 104, 105, 113, 114 and 119.

The fee for registration of a Discharge is €40 for each individual burden.

2. Forms of Discharge

Applications may be in LR Form 57A, LR Form 57B or LR Form 63 in the case of a Judgment Mortgage. Application is usually made by the registered owner of a Charge or the person entitled to the benefit of a Burden (or his/her personal representative) or in circumstances where the registered owner of a Charge does not concur, by the registered owner of the folio.

Note that a Discharge in LR Form 57A or a LR Form 63 application is only required to be signed and signature attested but an application in LR Form 57B must be sworn.

2.1. Discharge by owner (or his/her personal representative) of a Charge/Burden
The discharge may be given in LRForm 57A which, (save in the case of a Company or where a foreign company is executed in accordance with section 64 (2)(4) of the Land and Conveyancing Law Reform Act 2009 i.e. in accordance with the legal requirements governing execution of deeds by such a body corporate in the jurisdiction where it is incorporated and delivered as a deed by the person executing it or by a person authorized to do so on that person’s behalf), need not be sealed but should be dated, signed and the signature attested. As the requisition is not strictly a release of the burden, the Registry is not concerned as to whether Stamp Duty has been paid on the discharge.

Building Societies and Banks issue receipts or Vacates under its Seal (or by Authorised Signatories), usually on the Instrument of Charge (or a Counterpart thereof) and such are sufficient for the purposes of section 65 of the Registration of Title Act 1964. Pursuant to section 18 of the Housing Act 1988 this is extended to Housing Authority Charges. Such Vacates (and discharges in general) do not attract Revenue Duty.

In the case of a Discharge by a personal representative the relevant Grant of Probate/Grant of Letters of Administration should be lodged for noting and return.

2.2. Discharge other than by owner of a Charge/Burden
Any person having an interest in the burden or the property (most usually the registered owner of the Folio on which the Charge/Burden is registered or the successor in title to the registered owner when the Charge/Burden was originally registered) may apply on affidavit in LR Form 57B to have the burden cancelled. LR Form 57B will generally require suitable adaptation, alteration or modification as the circumstances of the case dictate.

No Stamp Duty is payable on such discharges.

2.3 Discharge of Charges registered without an ownership
See Rule 44(e) of the Land Registration Rules 2012.

It must be established that the person/body releasing is entitled to the benefit of the charge. This will necessitate inspection of the Instrument of charge. In LR Form 57B applications it must also be established who is entitled to ownership of the charge and notices served in appropriate cases.

In the case of Banks and other Financial Institutions cancellation may proceed on lodgement of:

  1. An Original Release of the Charge
  2. An up to date Certificate of “No Acts” by the Mortgagee and
  3. The Original Mortgage {which must always be produced}.

3. Notices and Objections

3.1 Notices
Notices to affected parties are not required in the case of a Vacate or requisition for cancellation of a Charge/Burden or Judgment Mortgage under properly submitted LR Form 57A or LR Form 63.

In LR Form 57B applications we must be satisfied that the Charge/Burden no longer affects the property and notice to affected parties is generally required.

Where an amount of a Charge does not exceed €1000 or is of an Annuity of €250 or less discretion may be exercised in appropriate cases and notice need not be served on next of kin.

3.2 Objections
On receipt of an objection which prima facie discloses a valid ground for such objection it should be acknowledged and the objector informed that the matter is being taken up with the applicant’s solicitor. The objector may also be informed that it may be necessary in due course to have the legal grounds of objection set out fully on affidavit. If he has requested a copy of the grounding affidavit, this, at the discretion of the officer, may be provided. However care must be taken to ensure that ‘personal data’, within the meaning of the Data Protection Acts in relation of any party referred to in the grounding affidavit is erased. A valid objection should be referred to the applicant’s Solicitor either by way of extract or copy, whose observations thereon should be invited.

Consider asking the applicant’s solicitor for substantiation of the applicant’s claims (on affidavit if necessary).

The response to the objections should then be notified to the objector with a request that his objection be set out on affidavit – to include facts on the matter in dispute.

The applicant’s Solicitor should then be asked for a supplementary affidavit to deal with the objector, if necessary.

4. Proofs required for cancellation of charges

4.1 Where it is claimed that the charge was paid
If it is claimed on affidavit in LR Form 57B that the charge has been paid, then, if a receipt by the owner of the charge is lodged with the application, no notice is necessary, and the charge may be cancelled.

If receipt is not lodged, or what purports to be a receipt is a doubtful document, notice should be served.

4.2 Where it is claimed that charge (or right) is statute barred
When it is claimed that a right or charge is statute barred, the facts shown on the affidavit must constitute a prima facie case that is so, viz.,

  1. that the appropriate limitation period has expired since the right of action of the owner of the burden accrued.
  2. that no acknowledgement in writing has been given during that period and no part payment made.
  3. that the owner of the burden was not under such disability (of unsound mind or infancy) as would stop the statute running.

The right of action accrues on the following dates:

  • Money Charges: The date on which the charge became payable.
  • Rights and privileges: The first date on which such right could be validly claimed.
  • Charge on a furture interest: The date on which such interest vests in possession. Future interests are equitable interests only from 1/12/2009.
  • Judgment Mortgage: The date on which the judgment becomes enforceable (section 47)(c)(3) of the Statute of Limitations 1957 (i.e. the date on which the judgment was obtained). See paragraph 7.3.

Limitation periods are as follows:

  • Mortgage to Church Temporalities Fund, Charges under section 31 of Land Law (Ireland) Act 1881 and charges under Housing (Gaeltacht Acts) 1929 and 1934. …………………………………………………………………..30 years
  • Other charges…………………………………….…………………………….. 12 years
  • Arrears of interest, rent charges, annuity etc,…………………………….6 years
  • Action by a State Authority claiming the sale of land which is subject to a mortgage or charge……………………………….. 30 years.

Future interests are equitable interests only from 1/12/2009 on the commencement of Part 3 of the 2009 Act.

It would appear that a rentcharge, annuity or other periodic sum may be barred after 12 years, but not a “conventional rent”, or interest on a mortgage, or a terminable annuity under the Housing (Gaeltacht) Acts 1929 to 1934. (See Statute of Limitations 1957, definition in section 2 “land”, “rentcharge”, “conventional rent” and Counahan on the Statute of Limitations 1957, pp 25-26. Section 2 of the 1957 Act was amended in Schedule (8)(1) amendments of the 2009 Act to substitute the definition of judgment mortage to mean a mortgage registered by a judgment creditor under section 115 of the 2009 Act. Any such application should be carefully considered and Deputy Registrar consulted.

In any case where a prima facie case has been established, notice should be served and if no objection is received, the burden may be cancelled.

4.3 Where it is claimed that alternative security is adequate
Sometimes application is made to cancel a burden on the grounds that alternative security for the burden is adequate. For example, on transfer of part of a folio it might be claimed that the lands remaining on the folio are sufficient security for the burden and application might be made to register the part transferred free from the burden. Such a claim is not strictly sufficient grounds to cancel the burden and the applicant should be informed that the burden will not be cancelled unless a release or discharge by the owner of the burden is produced.

In some cases, (for example: where the owner of the burden is a person of unsound mind, or where his whereabouts are unknown or where he is under serious disability), it might not be possible to obtain such release. The Authority will in some cases be prepared to cancel such burden without such release if the merits of the case demand it, and if an indemnity is given against any claim for compensation under section 120 of the Act arising from such cancellation. All such cases must be considered purely on an ad hoc basis and the Deputy Registrar consulted through the usual channels.

4.4 Where it is claimed that money has been provided on deposit in a Bank, etc.

Solicitors, on occasion, when no release is forthcoming, attempt to procure the cancellation of charges by lodgment of the amount on deposit in Banks in joint names, etc. This type of application may have been  based on Section 5 of the Conveyancing Act 1881 which related to payment of money into court. However Section 5 of the 1881 Act was repealed by the Land and Conveyancing Law Reform Act 2009 and not replaced. Such lodgment does not constitute a satisfaction of the charge.

Any such case lodged for consideration based on hardship or smallness of amount should be referred to a Divisional Manager for consideration based on the circumstances of each case.

4.5 Where it is claimed that a Charge should be cancelled on the happening of a particular event
If there is a charge for a sum of money registered in favour of X, payable on a certain event, it is not sufficient to show that the event happened, it must also be shown that the sum was paid.

If there is a charge for a sum of money registered in favour of X, it is not sufficient to show that X has died. The charge on his death will subsist in favour of his estate.

5. Partial Discharges

5.1 Partial Discharge lodged with a Transfer of Part
No registration in effect is required here. The new folio will be opened free of the relevant charge. No registration fee is due.

5.2 Partial Discharge lodged in isolation
Discharge in this case requires mapping. A separate entry should be made on the Folio stating the charge at the relevant entry to be discharged from the charge in respect of the allocated plan. Both entries should be cross-referenced.

A fee of €40 is payable in this instance.

5.3 Partial Discharge lodged with a Lease

Where it is clear that the Discharge lodged with the Lease actually relates to a discharge of part of the freehold interest, (or superior leasehold), the following entry should be made:

“Note: This charge does not affect the parts of the property referred to in Deeds of Lease registered at Entry No’s….”

Additions may be made to this entry as required.

Where it is stated in the Discharge that it relates to the Leasehold interest being demised, a priority note should be entered to the effect that the Lease ranks in priority to the charge. The charge and Lease are both burdens on the superior interest. The charge is not a burden on the leasehold interest and a partial discharge in these terms suggests an intention to retain security over the reversion, but without prejudice to the lessee’s interest in the event that the power of sale is exercised by the mortgagee.

6. Treatment of applications to cancel various specific burdens and the proofs required for cancellation

6.1 Rights of residence, maintenance and support etc.
An affidavit by a person with knowledge of the facts proving that the event has occurred which terminates the rights may be accepted. If the event is death an affidavit averring the death may be accepted without a supporting death certificate.

It happens on occasion that a death may not be officially recorded and consequently an official Death Certificate is unavailable. Where a death is required to be evidenced consider providing secondary proof of death such as: Memorial Cards, statement from local clergy as to burial etc, funeral receipts, photographs of headstones.

Some decades past where certain rights were granted/reserved and same included exclusive use of a dwellinghouse or part thereof {e.g. exclusive use of a bedroom} an inhibition would be registered on Part 2 of the folio in addition to the burden on Part 3.Where such burden is being cancelled on the death of the person entitled to the benefit thereof the inhibition is to be cancelled also without query. The instrument creating the rights may be first inspected.

6.2 Life Annuities
Similar evidence of death is to be accepted. The affidavit must contain an averment that the annuity was paid up to date of death and at that time there were no arrears of annuity outstanding.

6.3 Rights of Residence and Support and alternative annuity
The affidavit must, in addition to proving the death, contain an averment that the alternative annuity never became payable, or, if it did, it was paid up to date and that there are no arrears of annuity outstanding.

6.4 Powers of Revocation
The affidavit proving the death of the person entitled to the power should be supported by a death certificate or the like. {e.g. Memorial Card…} The affidavit must also aver that the power has not been exercised. No notice is to be served on the representative of the owner of the power.

6.5 Lis Pendens
Rule 119(3) sets out the terms on which a Lis Pendens may be cancelled.

If however, for some valid reason, the evidence required by Rule 119(3) of the Land Registration Rules 2012 is not forthcoming a release by the plaintiff or his personal representative or if no personal representative the persons entitled to the assets of the plaintiff may be accepted. The situation usually arises in an old suit that is in abeyance but has never formally been dismissed from Court.

In Coffey and Moylan v. Brunel Construction Company Ltd (1981), the Supreme Court held that a lis pendens registered on a folio prior to the lodgment in the Registry of a transfer for valuable consideration should be cancelled because the contract for sale and the payment of the purchase money were made prior to the registration of the lis pendens.

However the law has been changed in this area under section 52 of the 2009 Act which states “the entire beneficial interest passes to the purchaser on the making of an enforceable contract for the sale or other disposition in land” (from 1.12.09) The effect of this provision is that a purchaser under section 52 acquires full beneficial interest in the property which will have priority over any lis pendens registered after the date of the contract.

6.6 Property Adjustment Orders
Cancellation in this instance is similar to the requirements to cancel a Lis Pendens. Note section 9 (4)of the Family Law Act 1995 and section 14 (4)of the Family Law (Divorce) Act 1996 as amended by sections 74 and 75 of the Civil Law (Miscellaneous Provisions) Act 2008 provide for their registration as burdens.Legal Office Notice 2/2009 Property Adjustment Order LR refers. They may be cancelled from the Register on receipt of:

  • Where the property is transferred on foot of the Property Adjustment Order: Application to be made by Solicitor’s certificate in LR Form 59A or by the beneficiary in LR Form 59B.
  • Where the consents of the affected parties are furnished confirming that the terms of the order have been satisfied. Application to be made in LR Form 59C. The form may be embodied in a Deed of Transfer.
  • Production of Certificate from the Court Registrar confirming that the terms of the property adjustment order has been complied with in so far as the property is concerned. The relevant folio number, county and entry number should be specified in the Certificate.

6.7 Options to purchase and rights of pre-emption
The persons entitled to exercise the option or right may release it. If there are a number entitled to the right or option the survivor may be entitled to release on proof of death of the other. The affidavit proving the deaths should be supported by death certificates or the like. In some cases, however, the option is transmissible on death of Donee – See I.L.T. 1943 Page 12. In these cases the personal representative must release.

6.8 Covenants/Conditions relating to use and enjoyment of property
The Authority may cancel such a covenant or condition with the consent of all persons entitled to the benefit of the covenant or condition. (See section 69(3)of the Registration of Title Act, 1964). If the covenant or condition is expressly for the benefit of specific lands the owner of such lands is the proper person to release it. If it is not so expressed the covenant or condition could be for the benefit of all the property owned by the covenantee at the time the covenant was entered into. The owners of all the lands of the covenantee are the proper persons to release and evidence must be obtained to prove that the covenantee had no other land at the date of the covenant. (The address of the covenantee must also be obtained and notice served on him or his personal representative, or if none, on the persons entitled to his assets).

6.9 Leases
Leases registered as burdens under section 69 of the Registration of Title Act 1964 or tenancies noted under section 72(3) of the Registration of Title Act 1964 which have determined by effluxion of time may be cancelled under Rule 6.
Notice should be served on the lessee. Cancellation may proceed after 10 days of the service of such notice unless good cause to the contrary is shown.

6.10 Easements
If an easement is registered as an appurtenant right on the dominant folio, said entry must be cancelled on cancellation of the entry of the burden. Section 39 of the 2009 Act provides for the extinguishment of easements or profits a prendre acquired by prescription or implied grant or reservation. The easement or profit is extinguished after a 12 year continuous non-user period except where the interest is protected by registration in the Land Registry (or Registry of Deeds).

Easements may be cancelled on the following proofs:

(i) Express release or discharge by the registered owner of the dominant tenement, where same is registered land. If the dominant tenement is unregistered land an examination by an Examiner of Titles of the releasor’s title is required. See Part 10 below and Rule 101.

(ii) Transfer of the right by the registered owner of the dominant tenement to the registered owner of the servient tenement.

(iii) Severance from the dominant tenement by the unilateral act of the registered owner of the dominant tenement. On such severance the easement is extinguished. (Note, however, that such severance may not extinguish a profit a prendre such as a grazing right for a specified number of animals or a right of turbary in respect of a specified quantity of turf).
Where the dominant tenement is not registered an examination by an Examiner of Titles is required.

(iv) On proof that the dominant and servient tenement have come into the ownership of the same person, e.g. that the same person has been registered as owner of both properties in the same capacity. Notice should be served on the registered owner of the easement [if consent not already lodged] [Rule 104] and on any other person with an interest e.g. owners of charges on the dominant tenement or a cautioner where a caution is registered on the dominant tenement. See Part 8 below and Rule 104.

(v) Under Court Order.

(vi) On proof of abandonment, implied release or extinguishment by operation of law. It is not sufficient to prove mere non-user no matter for how long a period. Such cases must be referred to the Deputy Registrar. A right to take water from lands may not be cancelled on non-user. Section 39 of the 2009 Act provides for the extinguishment of easements or profits a prendre acquired by prescription or implied grant or reservation. The easement or profit is extinguished after a 12 year continuous non-user period except where the interest is protected by registration in the Land Registry (or Registry of Deeds).

(vii) Extinguishment under section 61 of the Wildlife Act, 1976. See Practice Direction – Forestry Acts 1946 to 1978.

Note: On application by the registered owner of the dominant tenement in LR Form 57A to cancel/release a Right of Way it should be established before proceeding that no transfer from the dominant tenement has taken place since the registration of the Easement on the Servient folio. The registered owner of the new folio opened on foot of such a transfer may also be entitled to the benefit of such right and also be required to release. Once the situation is clarified (Mapping Branch consulted) registration may proceed.

No certification is to be requested from the lodging solicitor however as to whether there ever was any assignment of the right.

6.11 Profits a Prendre
Where such profits are appurtenant to a dominant holding the provisions above relating to easements apply.

In the case of a profit held in gross the burden may be cancelled on release or transfer by the owner of the right to the registered owner of the servient Folio. Where the ownership of such right is registered on the register of ownership of incorporeal hereditaments and other rights, the Folio on said register is to be closed on cancellation of the burden.

Where the ownership of the right is not so registered an examination by an Examiner of Titles is required.

6.12 Fee Farm Rents and Covenants and Conditions therein contained
Cancellation here may be procured by:

  1. Lodging a re-Conveyance of the property by the successor in title to the original grantor of the property subject to and with the benefits of the Rent and the Covenants and Conditions contained in the Grant. The Re-Conveyance would contain a declaration of merger by the grantee.
  2. Lodging a Vesting Certificate.
  3. In exceptional cases it may be claimed that the Rent is statute barred.

These cases will generally be dealt with by Examiners of Title.

6.13 Cancellation of Fishing Rights
In general it is not possible to cancel Fishing Rights on a folio, one reason being that rivers have been known to change course and access may be necessary. On transfers of part such rights are carried over to affect the new folio with the exception of house plot subdivisions or commercial developments in urban areas.

Where fishing rights are reserved to the Land Commission cancellation may be considered on receipt of a request by the Central Fisheries Board. {Higher Executive Officer should be consulted}.

In all other cases an application in LR Form 57A is required from the person(s) entitled to the benefit of the rights together with evidence of their entitlement {i.e. investigation of their title} or a Court Order directing cancellation.

6.14 Cancellation of Sporting Rights pursuant to Section 18 of the Land Act 1965
Except where sporting rights are reserved to the Land Commission or the Minister Agriculture, Food and the Marine, any application lodged pursuant to section 18 of the Land Act, 1965, for cancellation of sporting rights should be on affidavit in the form set out in the First Schedule hereto accompanied by a copy of an advertisement inserted in a local newspaper in the form set out in the Second Schedule hereto.

If any objection is received in the Registry as a result of the advertisement the objection should be referred to the Divisional Manager for consideration.

Where the sporting rights are reserved to the Land Commission or the Minister, a letter from the Lands Division of the Department of Agriculture, Food and the Marine may be substituted for the affidavit and no advertisement is necessary. If an application is made on affidavit accompanied by copy advertisement, the applicant should also be required to furnish a letter from the Department of Agriculture, Food and the Marine.

It is to be noted that “Sporting rights” within the meaning of the Irish Land Act, 1903, include fishing rights (See section 13 of that Act). Section 18 of 1965 Act relates to the cancellation of “Sporting rights other than fishing rights”. Therefore, on cancellation of Sporting rights pursuant to this section, where the reservation is of sporting rights within the meaning of the 1903 Act, it is necessary to retain a note on the folio indicating that the property is subject to “the fishing rights (if any)”.

6.15 Quit Rent and Tithe Rent Charges etc.
All Ecclesiastical Tithe Rent Charges appearing on folios may be cancelled when processing any registration application having regard to section 72(2) of the Registration of Title Act 1964 pursuant to Rule 6. Rent charges in lieu of Tithes, perpetuity Rents or other periodic payments collectable by the Land Commission and payable to the Irish Church Temporalities Fund were deemed to be extinguished in 1975.

Quit Rents and arrears were written off by the Minister for Finance in 1975 under the State Property Act 1954.

Where these entries of Ecclesiastical Tithe Rent Charges and Quit Rents appear on folios they may be cancelled without enquiry.

6.16 Land Purchase Annuities
Pursuant to section 2 of the Land Act 2005 all annuities of less than €200 are to stand discharged from 4th November 2005. The Department of Agriculture, Food and the Marine are furnishing qualifying farmers with written confirmation that their annuity is written off. Where such letter, or other evidence that the amount of the annuity is less than €200, is produced, the entry of Land Purchase Annuity is to be cancelled. Otherwise a specific letter of discharge is required from the department. No fee is payable is payable for these registrations.

7. Cancellation of Judgment Mortgages

7.1 General
A judgment mortgage may be cancelled from the register on production of the evidence prescribed by Rule 113 or Rule114 of the Land Registration Rules 2012. (A“Satisfaction Piece” under section 9 of the Judgment Mortgage Act 1850 or a requisition inLR Form 63). It can also be cancelled on other appropriate grounds e.g. under Rule 72 or Rule 101 of the Land Registration Rules 2012.

A Discharge by the Judgment Creditor in LR Form 57A is also acceptable provided it is sufficiently clear giving details regarding the entry to be cancelled.

Note that a minor cannot release a judgment mortgage.

No note can be entered on a folio to the effect that a judgment was registered in error and cancellation recorded on that basis – without an Order of the Court to such effect.

NOTICES: In respect of all applications for cancellation, other than a release by the Judgment Creditor, notice must be served on the Judgment creditor before cancellation. Any objection must be treated on its merits. This also applies in the case of a subdivision where the application is to prevent the judgment being carried over onto the new folio.

7.2 Rule 113 Applications
All applications for cancellation of Judgment Mortgages under Rule 113 where it is claimed the deposit and notice of the judgment in the Register does not create a valid burden are to be referred to the Higher Executive Officer.

Applications here must be on Affidavit setting out the grounds of such claim. The most usual claim is that the judgment debtor had no estate or interest in the property capable of being affected at the date of registration of the judgment.

In the case of In re Strong (1940) I.R. 382 – 386 the Supreme Court held that a purchaser of registered land is entitled to have a judgment mortgage against the interest of Vendor (the registered owner) cancelled from the register on the grounds that the entire purchase money under the contract had been paid over to the Vendor prior to registration of the judgment mortgage as a burden on the folio.

Note, as is sometimes claimed, the Instrument of Transfer does not defeat the judgment, rather the key elements being the rights created by the contract in addition to the payment of the purchase monies.

The position of a Judgment Mortgage registered after a deposit was paid on a contract for sale came before the Supreme Court in Tempany v Hynes (1976). By a majority, the Supreme Court held that when a contract for sale has been signed the Vendor becomes a trustee of the beneficial interest in the property to the extent that the purchase money has been paid.
Accordingly, the Supreme Court held that until the whole of the purchase money is paid, the Vendor has a beneficial interest in the land which may be charged by a Judgment Mortgage.

However the law has been changed in this area under section 52 of the 2009 Act which reverses the majority position in Tempany v Hynes and states “the entire beneficial interest passes to the purchaser on the making of an enforceable contract for the sale or other disposition in land” (from 1.12.09)

The effect of this prosvision is that a purchaser under section 52 acquires full beneficial interest in the property which will have priority over any judgment mortgage registered after the date of the contract.

A transfer of a judgment mortgage may not be registered unless the title to the judgment mortgage is registered on a Subsidiary folio under Rule 186 of the Land Registration Rules 2012. If not so registered the transferee’s interest may be protected by an Inhibition. The transferee may release a judgment mortgage.

When a properly grounded application is lodged, the Instrument under which the judgment was registered should be associated. Notice should be served on the judgment creditor. Consider also in appropriate cases serving notice on the solicitor who lodged the judgment and in the case of a Company to the Secretary thereof at the Registered Office of the Company.

7.3 Application to cancel a Judgment Mortgage under the Statute of Limitations
Applications in this case are in LR Form 57B, suitably adapted to suit the circumstances. The claim should be set out as at paragraph 4.2 above similar to a situation where it is claimed a charge is statute barred.

It is to be noted that:

  • Usual limitation period is 12 years from the date the right of action accrued.
  • Under section 32 of the Statute of Limitations 1957 the limitation period for action by a State Authority is 30 years from the date on which the right of action accrued.
  • Under section 47(c)(iii ) of the Statute of Limitations 1957 the date of accrual of a right of action upon a judgment mortgage is the date on which the judgment became enforceable and NOT the date on which it was registered as a mortgage.

Note: See separate Practice Direction on Judgment Mortgages.

8. Cancellation pursuant to Rule 104

8.1 General application of the Rule
Rule 104 provides for the cancellation of burdens where the registered owner of a burden becomes the registered owner of the property on which it is a burden. Note the Rule is discretionary and the burden may only be extinguished and cancelled in the Register following notice to all interested parties and where no objection is received.

In view of the judgment of the High Court in the case of Stepstone Mortgage Funding Limited (Plaintiff) v. Mary Tyrrell (Defendant), which was delivered on 30th day of March 2012, particular care must be taken with easements and other burdens that are appurtenances to other lands. In that case, the Court held that the order for possession obtained by the owner of a charge, included the folio lands and the appurtenant rights of way and easements, which were registered on that folio when the charge was created and when the plaintiff was registered as owner of the charge. The Court found in this case that the Authority acted in error in cancelling appurtenant rights on acquisition of the dominant and servient tenements by the same owner.

8.2 Form 32 applications
Where the Local Authority is registered as owner pursuant to the LR Form 32 procedure, a charge in favour of the Local Authority is NOT to be cancelled under Rule 104. It should only be cancelled on receipt of a formal discharge in LR Form 57A or Vacate etc.

9. Cancellation of Prohibition Notes

9.1 Section 12 and 45 of the Land Act 1965
From 4th November 2005 sections 12 and 45 of the Land Act have been repealed (section 12 Land Act 2005). No new Prohibition Notes are to be entered on folios from that date. Existing Prohibition Notes should be cancelled when processing applications. No note is to be added.

9.2 Section 90 (Housing Act 1966) Restriction Notes
Where property is subject to a Prohibition Note pursuant to section 90(6) of the Housing Act 1966 it may be modified or cancelled as follows:

  1. To cancel the alienation, mortgaging and charging clause a Transfer for value is required together with the consent of the relevant Local Authority OR if the period stated (if any) has elapsed, this clause is cancelled automatically. A fresh entry of the Conditions etc.is entered on the folio.
  2. To cancel the Conditions, an application is required from the relevant Local Authority in LR Form 57A with a fee of €40.
  3. Where a property subject to such prohibition note is transferred to the Local Authority the prohibition note in its entirety is automatically cancelled.

9.3 Cottage Purchase Annuities and Restriction Note under the Labourers Act 1936
Such an annuity may be apportioned or redeemed (See section 98 and 99 of Housing Act, 1966) by the Local Authority entitled to the Annuity. If a redemption Certificate is lodged in isolation a dealing number should be allocated. Registration fee of €40 is required.

If a transfer etc…is pending and the payment period of the annuity has expired dealings are to be registered as if there were no restriction note on the property and the annuity and restriction note is to be cancelled {Rule 6 applies} and the cancellation may be recorded on the folio under that dealing number.

9.4. Housing Charge Restriction Notes and similar entries
Where a property is subject to such restrictions {e.g. section 39 of the Housing Act 1966} until a subsequently registered Local Authority Charge is repaid, on the discharge of the charge the restriction note should be cancelled also.

10. Cancellation of Burdens: Effect of Rule 101

10.1. Effect of Rule 101

The following circumstances require careful consideration under Rule 101 of the Land Registration Rules 2012:

  1. Cancellation of an easement, by the owner of the Folio to which it is appurtenant, (the dominant tenement) whether or not it is registered as appurtenant, in cases where there is a charge registered on the dominant tenement.
    The cancellation of the easement could reduce the Lender’s security or prejudice the exercise of a power of sale, or sale by a receiver, in circumstances where the access to the secured property was compromised by cancellation of the easement.
  2. Cancellation of an easement or profit a prendre, by the owner of the Folio to which it is appurtenant, (the dominant tenement) whether or not it is registered as appurtenant, in cases where there have been subdivisions of that Folio and consequential apportionment of the right.
    In such cases, there may be other parties who have purchased land that are entitled to the benefit of the right, who would be prejudiced by its cancellation as a burden.
  3. Cancellation of covenants and conditions relating to the use and enjoyment of property in building estates or schemes.
    Cancellation on one or more Folios of such a burden, without the concurrence of other owners, could prejudice the enforceability of mutual covenants.

The direction of the Divisional Manager should be obtained before settling a discharge in any of the circumstances referred to above.

Frank Treacy
Deputy Registrar
27 November 2009
Updated 20 February 2015

 

First Schedule

County
Folio

Cancellation of Sporting Rights Section 18 Land Act 1965

I……………………….of……………………..                      make oath and say as follows:-

  1. I am the registered owner or occupier of the lands in
    Folio……….. County……………….. or otherwise interested as follows:-
  2. I refer to the sporting rights (other than fishing rights) reserved to the Earl of …………………… his heirs and assigns registered on first registration of said lands.
  3. To the best of my knowledge and belief the said sporting rights so reserved have not been exercised for at least 12 years before………………………… (the date here should be 9th March 1965 or a date subsequent thereto).
  4. I refer to advertisement in (……………. Herald) dated the…………………………. day of …………….. annexed hereto. No claim has been received by me in response thereto.
  5. I hereby apply pursuant to section 18 of the Land Act 1965 for the cancellation of the said entry of sporting rights (other than fishing rights) on the said Folio.

Sworn before me, this …………day of……………20..

Before me etc.

Second Schedule

LAND REGISTRY

  1. B…………………. of……………………. at the expiration of 14 days from the date hereof intends to apply pursuant to Section 18, Land Act, 1965, to the Property Registration Authority for cancellation of certain sporting rights reserved to …………………………………….. on Folio No…………………………………..County ……………………………………………