Land Commission Orders
A dealing may disclose that a first registered owner in whom the property was vested under the Land Acts was dead at the date of such vesting. In such circumstances it is to be noted that the vesting order is not void. See section 22 of the Land Act 1965.
Where a first registered owner was a full owner, the vesting order was effective to vest the property in his personal representative to such uses and upon such trusts as the lands would have stood limited if they had been vested in such person immediately prior to his death. The existing practice established under section 63 of the Land Act 1923, is still to be followed except that the former equity note is not to be amended. The instrument number which disclosed the death is to be noted opposite the former equity note (if any).
Where the first registered owner was a limited owner the vesting order was effective to vest the property in the person or persons next entitled under the settlement. In such a case, therefore, on application being made, the person or persons next entitled under the settlement could be registered in succession to the deceased limited owner as if such owner had died after the date of vesting. As and from 1st December 2009 being the commencement date of the Land and Conveyancing Law Reform Act an appropriate application pursuant to Rule 93 of the Land Registration Rules would be required.
When the first registered owners were two or more joint tenants and one or more of them had died prior to the vesting, the vesting is valid and the survivor or survivors may be registered on application being made as if such deceased joint tenant or tenants had died after the date of vesting.
Section 41 of the Land Act 1965, clarifies the position in relation to Partition Orders made by the Land Commission in exercise of their powers under section 24 of the Land Act 1939 as extended by section 25 of the Land Act 1950, and as amended by section 23 of the Land Act 1953.
Partition Orders are made under section 24 of the Land Act 1939 as amended.
All or some of the owners apply to the Department of Agriculture (Land Commission) for leave to partition the commonage. The effect of such an order is to confirm and authorise a scheme rearranging commonage between the owners in severalty subject to the estates, interests, burdens, charges, liabilities and equities , which immediately before the order affected the undivided share. Section 41(1) of the Land Act 1965 refers.
Section 41 of the Land Act 1965 is retrospective in its operation and operates to transfer all estates, interests, burdens, charges, liabilities or equities affecting an undivided share (on a Partition Order being made) to the portion of the holding allotted to the owner of that undivided share. They will no longer affect the portion allotted to the owner of the other undivided share. For example, suppose A is the registered owner of a folio which comprises one-third share in 100 acres and these lands are subject to a money charge. Suppose B is the registered owner of another folio which comprises a two-thirds share in the same 100 acres but this folio is not subject to the charge. If a Partition Order is made allotting say 30 acres to A in severalty and 70 acres to B in severalty, the charge will affect only the 30 acres allotted to A.
In some cases, Partition Orders may contain conditions relating to the erection, maintenance and repair of fences. In such a case the following entry should be made on the relevant folio:
“The property is subject to the fencing conditions contained at No.s……. and of the terms and conditions in the Land Commission Partition Order No….(Instrument No…..)”
Where an order is made under section 24(2) of the Land Act 1939 all owners will have consented to the making of the order.
If an order is made under section 24(3) of the Land Act 1939, only some of the owners will have consented to the making of the order. It should be noted that partition orders generally refer only to Section 24 of the Land Act 1939 and do not specify the sub-section.
If same are not lodged within four weeks, registration is to be proceeded with, on the basis that, as we are giving effect to the exercise of an order of the Department of Agriculture (Land Commission) made under its statutory powers, the Authority will treat the partition order as an instance where the estate of the registered owners is overreached by statutory order.
It is the practice of the Land Commission to include new rights of way in Partition Orders made under section 24 of the Land Act 1939. Section 24 does not provide for the creation of easements in favour of the Land Commission or the owners involved. However, it is probable that such right(s) of way exist on the ground and are being exercised by the parties. Registration may proceed without enquiry.
As a partition order is the facilitation, by the Department of Agriculture (Land Commission) of the partition of commonage between the owners, it is not a vesting. Folios should not be closed unless there is also a consolidation order with other folio lands. The references to the shares on Part I of the folio are to be struck out, the area to be amended to show the extent of the plot now held in severalty by that owner and all plan numbers are to be struck out, except the plan relevant to the plot now held in severalty on that folio. In the Official Notes Column the words “Partition Order. Instrument No. and Date “should be inserted. If because of a consolidation order with another folio, a new folio is being opened, the existing ownerships should be carried over.
A Partition Order, for the reasons set out above, does not operate to vest any interest in Land Commission Nominees. Any Land Commission Nominee, appearing on folios subject of partition orders, is appointed for the purpose of completing the partition proceedings and for no other purpose. Where a record number appears on the nominee note, it will correspond with the Record Number on the Partition Order. When a partition order is being settled a direction is to be given to cancel the Land Commission Nominee note. No other alterations should be made in Part 2 of the folios.
The Land Commission usually acquire property under the Land Act 1923 by way of a Final List (section 24) or Vesting Order (section 36).
On lodgement of any of these in the Land Registry, the Land Commission is to be registered as full owner effective from the appointed day. The Notice of Equities and all registered burdens and charges, if not expressly preserved, are to be cancelled.
Any Land Purchase or Reclamation Annuity or any fishing rights or right of way in favour of the Land Commission are to remain on the folio.
If a Final List or Vesting Order includes unregistered land, same is to be registered without calling for an affidavit in LR Form 3 of the Land Registration Rules 2012.
PROPERTY REGISTRATION AUTHORITY
01 DECEMBER 2009
Updated 01 February 2013