Registration of Deeds and Title Act – Legal Office Notice No. 14 of 2006
The Registration of Deeds and Title Act 2006
The Registration of Deeds and Title Act 2006 [the Act of 2006] was enacted on the 7th May 2006.
In short, the Act provides for the following:
- The establishment of the Property Registration Authority [the Authority]
- The repeal of all legislation in relation to the registration of deeds and new provisions for its operation and procedures
- The amendment of the Registration of Title Act 1964 [the Act of 1964] with a view to preparing the way for an electronic conveyancing system [eConveyancing]
- The amendment of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978
Section 2 of the Act provides that the Act or part thereof shall come into operation on such day or days as the Minister may appoint but goes on to make specific provision in relation to Section 76 and 77 of the Act.
- Sections 76 and 77 which amend the Landlord and Tenant (Ground Rent) (No. 2) Act 1978 take effect from the 7th of May 2006 being the date of passing of the Act [section 2(2)]
- S.I. No. 271 of 2006 Registration of Deeds and Title Act 2006 (Commencement) Order 2006 appointed the 26th of May 2006 as the day on which sections 1,2, 3, 5, 6, 50 [except paragraph (e)], 52 [except paragraphs (b) and (d)], 58,59, 60, 63 , 65 ,68, 69, 70 came into operation.
- S.I. No. 511 of 2006 [Registration of Deeds and Title Act 2006 (Commencement (No. 2) Order 2006] appoints the 4th day of November 2006 as the day on which sections 4 (except insofar as it applies to Part 1 of the Schedule), Part 2, sections 46 to 48, sections 50(e), 51, paragraphs (b) and (d) of section 52, sections 53 to 57, 61, 62, 64, 67, 71, 72, 74, 75, and 78 and Part 2 of the Schedule of the Registration of Deeds and Title Act 2006 come into operation. The Order further appoints the 1st day of January 2007 as the day on which section 73 of the Registration of Deeds and Title Act 2006 comes into operation.
- S.I. 512 of 2006 [Registration of Deeds and Title Act 2006 (Establishment Day) Order 2006] provides that the 4th day of November, 2006 shall be the establishment day for the purposes of the Registration of Deeds and Title Act 2006.
The final commencement order will be in relation to Part 3 dealing with the registration of deeds and this is expected early next year.
3. PROPERTY REGISTRATION AUTHORITY [Part 2]
Part 2 of the Act contains provisions relating to the establishment of the Authority including its membership, functions and staffing. It is to be a statutory body with a representative board. Part 2 contains standard provisions relating to the establishment of the new Authority and inter alia provides that it will be a body corporate with perpetual succession and may sue and be sued in its corporate name. It will be independent in the exercise of its functions and will have an official seal. It will be the “registering authority” [section 4(2)], substituting references to the Authority for references to the Registrar in the Act of 1964.
The Minister shall appoint the Chief Executive of the Authority on the recommendation of the Chief Executive of the Public Appointments Service [Section 22 of the Act]. The current Registrar of Deeds and Titles will be the first Chief Executive of the Authority. The Chief Executive will be the accounting officer in relation to the appropriation accounts of the Authority for the purposes of the Comptroller and Auditor General Acts 1866 to 1998.
4. REGISTRATION OF OWNERSHIP [Part 4]
Part 4 of the Act contains a series of amendments to the Registration of Title Act 1964. These amendments are intended to clarify certain aspects of the law relating to the registration of title, to improve efficiencies within the Land Registry and to extend the registration of title system. In particular, they will provide the Land Registry with the means to develop and operate an e-registration system in line with an e-Conveyancing system.
Main provisions commenced on 26th May 2006:
- Section 50 amends certain definitions in section 3 of the 1964 Act. In particular, it substitutes an amended definition of register and inserts a new definition of index in order to facilitate computerisation of records. Both definitions will contain references to material “kept in electronic or other non-legible form which is capable of being converted into a permanent form”. It provides for deletion of the definitions of “local office” and “local registrar” since the computerisation of registers will obviate the need to keep and maintain duplicates in local offices for inspection locally. In future, access to the registers will be available by electronic means. It also provides for the amendment of the definition of ‘leasehold interest’ to allow for a period of less than 21 years i.e. such other number as may be prescribed and includes in the definition the right or interest of a person who has barred, under the Statute of Limitations, the right of action of a person entitled to such leasehold interest.
- Section 52 amends section 23 of the 1964 Act. It responds to a recommendation by the Law Reform Commission to exempt lands covered by the Irish Church Act 1869 from the compulsory registration provisions of the 1964 Act. Following its consideration of practical problems arising in this area, the Commission concluded that what was required was a provision that would absolve non-compliant owners from the obligation to register. This is the purpose of paragraphs (a) and (c). These changes are in turn linked with the amendment in section 50 which deletes the reference to the Irish Church Act 1869 from the definition of the Land Purchase Acts. (subsections (b) and (d) will commence on 4th November 2006 and give the Minister power to extend compulsory registration to specified dispositions of land).
- Section 58 amends section 51 of the 1964 Act and provides that the word ‘transfer’ shall include a lease. Under the 1964 Act in the case of registered freehold property, any lease of the property or parts of it are deemed to confer an unregistered leasehold interest. Before any such interest can be registered it is necessary for the lessee to apply for first registration which can be a cumbersome time-consuming process. Section 58 provides that where a registered owner of land leases the land or any part of it, the lessee shall be registered as owner of the leasehold interest in that land.
- Sections 59 and 60 amend sections 69 and 72 of the 1964 Act. Coupled with the amended definition of “leasehold interest ” [section 50 (d)], allows for registration of leases for less than 21 years which, if prescribed, will no longer be section 72 burdens but instead section 69 burdens. In addition, leasehold folios can be opened for such leases. Section 72 of the Act amends section 126 of the Act of 1964 and the new amended section 126(2) provides that the Registration of Deeds and Title Rules Committee in determining whether this period should be altered should have regard to the function of the Authority to promote and extend registration and ownership of land and to the resources available to it for performing that function.
- Section 63 amends section 90 of the 1964 Act, and widens the powers conferred by it to include the granting of a lease, easement, or profit a prendre in respect of property in addition to the powers to sell or charge as at present, before a person is registered as owner. This was recommended by the Law Reform Commission. The amendment takes account of the amendment in section 58 that the word ‘transfer’ includes a lease. The amendment also provides that the Minister for Agriculture and Food shall have powers previously conferred on the Land Commission.
- Section 65 amends section 107 of the 1964 Act to allow for inspection of material in the form in which it is stored or in a legible reproduction of it. The computerisation of registers, maps and indexes will of necessity require changes to the inspection and searches of registers and maps.
- Section 69 removes a reference in section 120 to the determination of a claim by the Registrar of Titles. The section provides for determination of the claim by the Court rather than the Registrar, as at present.
- Section 70 amends section 123 of the 1964 Act (words of limitation) by dispensing with words of limitation in respect of the granting and conveying of easements and profits a prendre as well as the transfers referred to in section 123 [s.60]. The Law Reform Commission has stated section 123 of the 1964 Act does not appear to apply to the granting of appurtenant rights such as an easement of profit à prendre. The absence of these words of limitation would probably mean the easement or profit would last for the lifetime of the grantee only, which is obviously not the intention. This is remedied in section 70 which inserts three new subsections in section 123 of the 1964 Act.
Main provisions to be commenced on 4th November 2006
- Section 51 replaces section 7 in the 1964 Act and provides that the Land Registry will be under the control and management of the Property Registration Authority.
- Section 53 amends section 24 of the 1964 Act. It will permit extensions of compulsory registration, not only to specified geographical areas as at present, but also to specific categories of buildings or land. In addition, the Minister will be empowered to extend, by order, compulsory registration to dispositions other than sales or assignments of land. In short, the section provides the means of extending compulsory registration by means other than the geographical route set out in the 1964 Act.
- Section 54 substitutes a new section for section 25 of the 1964 Act. It provides that in cases where compulsory registration applies, the person acquiring the interest in land must register the change of ownership within six months of such acquisition. This amendment provides clarification of a doubt in the interpretation of section 25.
- Section 55 amends section 32 of the Act of 1964. The effect of this amendment will be that the Authority will have power to rectify errors in the registers or registry maps arising in registration i.e. official errors, where it is of opinion that such official error can be rectified without loss to any person and after service of prescribed notices. Any rectification of error under this new provision will require prior service of notice on the registered owner and any other affected party and no such correction or alteration can be made that would cause loss to any person.
- Sections 56 and 57 amend sections 33 and 40 of the 1964 Act to allow applications for first registration with qualified title In effect an applicant will be free to apply for registration of a title subject to certain reservations that will appear on the register. A title registered subject to specific limitations entered on the Register is called a “Qualified” Title. These amendments will permit applications for qualified title ‘ab initio’ thus removing the stigma currently associated with qualified status.
- Section 61 substitutes a new section 84 in the Act of 1964 Act and will allow the Authority to use electronic or digitalised maps. Provision will be made by general rules for identifying on maps [registry maps] land whose ownership has been registered. The above change facilitates the Land Registry Digital Mapping Project which was launched by the Minister for Justice Equality and Law Reform in June 2005. This provision will commence on the 4th of November 2006 [S.I. No. 511 of 2006].
- Section 62 deals with the description and identification of registered lands and substitutes a new section for section 85 of the Act of 1964 providing for such description to be prescribed (by the Rules Committee). This provision will commence on the 4th of November 2006 [S.I. No. 511 of 2006].
- Section 64 is substituted for section 104 of the Act of 1964 and clarifies the responsibilities of the Registries as regards stamp duty.
- Section 67 inserts an amended sub-section (2) into section 116 of the Act of 1964 and replaces the requirement to file a memorial of first registration of land in the Land Registry with a requirement that the Authority shall cause a record of the registration in the prescribed form to be registered in the Registry of Deeds.
- Section 72 amends section 126 of the Act of 1964. The amended section provides that the Registration of Deeds and Title Rules Committee [section 74 of the Act of 2006 ], with the agreement of the Minister for Justice, Equality and Law Reform, may make general rules for carrying into effect the objects of the Act
- Section 74 of Act establishes the Registration of Deeds and Title Rules Committee, which will replace the Registration of Title Rules Committee established under section 73 of the Courts of Justice Act 1936, and will make general rules relating to both the Registry of Deeds [section 48 of the Act] and the Land Registry [section 72 of the Act]. Section 74 provides that the committee shall consist of a Judge of the High Court [chairperson]; and the nominees of the Bar Council and the Law Society, the Chairperson and the Chief Executive of the Authority. This provision will commence on the 4th of November 2006 [S.I. No. 511 of 2006]
Phased abolition of Land Certificates and Certificates of Charge (Commencing 1st January 2006)
- Section 73 (1) of the Act of 2006 provides for the phasing out of land certificates and certificates of charge over a three year period. Specifically, it provides that land certificates and certificates of charge issued before the commencement of subsection (1) and not already cancelled will cease to have any force or effect three years after the commencement of subsection (2). During this 3 year period any existing land certificates or certificates of charge issued before commencement of section 73(1) will still need to be lodged for registration of any dealings with the property but they will be cancelled on completion of such dealings and will not be re-issued. This provision will commence on the 1st of January 2007 [S.I. No. 511 of 2006].
- Section 73 makes provision for the conversion of any outstanding equitable mortgages created by deposit of a land certificate to a lien during that three-year period. Such lien will be deemed for the purposes of sSection 69 of the Act of 1964 to be a burden which may be registered as affecting registered land and will be registered on the land without any fee or duty being charged for doing so. If someone has loaned in a private transaction or as a lending institution on foot of a deposit or arrangement whereby he or she held onto the land certificate, he or she will effectively have three years to do something with his or her interest in the land. Otherwise, it will cease to have any significance by the end of that time. In addition, section 105 of the Act of 1964, [which requires the production of a land certificate or certificate of charge on the lodgement of a dealing in the Land Registry], shall cease to operate three years after the commencement of subsection (2).
- Subsection (3) contains details of this conversion process. Any person holding a lien on registered land or charge through deposit of a land certificate or a registered charge may apply to the Authority in the manner determined by it for registration of the lien [subsection 3(b)].The application will be on notice to the registered owner and must be accompanied by the original certificate.
It is to be noted that the mode of application is to be determined by the Authority. It is envisaged that a fairly straightforward form of application will be accompanied by a copy of the notice of intention to apply for registration of a lien. Such application must be lodged for registration within three years from date of commencement. Where, prior to the date of commencement, a solicitor has given an undertaking to lodge a land or charge certificate where advances on foot of the said undertaking have been made prior to the date of commencement, it is envisaged that the application be accompanied by an original or certified copy of the said undertaking together with confirmation that monies have been advanced on foot of the same.. For this reason, provision is made in subsections (4) to (8) for a compensation mechanism.
In the event of it being used, the holder of a land certificate or certificate of charge could apply to the court for compensation for the claimed financial loss. Under the stringent conditions set out in subsection (5), the court could declare that the holder was entitled to compensation and determine the amount. This provision was included in case someone’s property rights, particularly those of a vulnerable person, could be extinguished without their knowledge and to their prejudice.