Transfers of Registered Land

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  1. Transfer of registered property by the registered owner to a purchaser for value
  2. Transfer of registered property to two persons as joint tenants
  3. Transfer of registered property to two or more persons as tenants in common
  4. Transfers between joint tenants and tenants in common
  5. Transfer by a registered owner of registered property creating rights in favour of him/her self and others
  6. Transfer of property by a registered owner of a charge in exercise of his/her power of sale
  7. Voluntary transfer of freehold property by a registered full owner with a power of revocation
  8. Transfers by persons entitled to be registered as owners of land
  9. Deeds of transfer dealing with equities
  10. Transfer to a Company within the meaning of the Companies Act 1963
  11. Transfer by a Company within the meaning of the Companies Act 1963
  12. Transfer by Receiver of property owned by an individual
  13. Transfer under Order of the Court
  14. Resulting Uses
  15. Transfer lacking words of limitation
  16. Sealing of Deeds

1. Transfer of registered property by the registered owner to a purchaser for value

The essentials of a deed of transfer are:

1.1 That it bears revenue duty and a particulars delivered stamp, if not exempt from same or from 1st December 2009 is accompanied by a Stamp Certificate (e-Stamping).

1.2 The deed of transfer must be dated on or after the date of registration of the transferor. If it is dated prior to registration of the transferor, see paragraph 8 below re transfer by a person entitled to be registered as owner.

1.3 Transferor must be identified as the registered owner. For example John Smith, the beneficial owner, etc. is not sufficient. If the transfer omits the identification, write to the solicitor to certify that the transferor and the registered owner are identical.

1.4 A transfer must contain an operative part i.e. “hereby transfers all the property to Thomas O Reilly”. Sometimes in transfers of freehold property the words “in fee simple” or “absolutely” are added. Words of Limitation are not necessary in transfers executed on or after the 1 January 1967 (date of commencement of the Registration of Title Act 1964).

A transfer of freehold property to “Thomas Reilly” now makes Thomas Reilly a tenant in fee simple unless:

(i) the transferor has not got power to transfer the fee simple, or

(ii) a contrary intention appears in the transfer (see section 123 of the Registration of Title Act 1964)

but prior to 1967, a transfer of freehold property “to Thomas Reilly” gave him only a life estate. In order to give him a fee simple the words “to Thomas Reilly and his heirs” or the words “to Thomas Reilly in fee simple” had to be used. These words are known as words of limitation. No other words would do. If a transfer of freehold property dated prior to 1967 is now lodged, it must contain words of limitation.

In a transfer of leasehold property, words of limitation were never necessary.

No words of limitation were or are necessary in a transfer to a corporation aggregate e.g. a limited company. No words of limitation have ever been necessary since a corporation never dies. A transfer of the full ownership to a corporate sole required the words of limitation “successor” or successors and assigns” added to the limitation prior to 1 January 1967.

These words are not now required for transfers of registered land (or for conveyances of unregistered land executed on or after 1st December 2009, section 67 of the Land and Conveyancing Law Reform Act 2009). An example of a corporation sole is a Minister of State.

1.5 The address and description of the transferee in the State i.e. within the 26 Counties must be given. Usually when a person resides outside the State the address of the solicitor is given for the purpose of service of notices.

1.6 Where the Transferor is an individual, the transfer should be stated to be signed and delivered by the Transferor and the signature attested. [Sealing by an individual not required for conveyances or transfers executed on or after 1st December 2009, Section 64 of the Land and Conveyancing Law Reform Act 2009]. Bodies corporate having a seal, should execute under such seal. If the incorrect folio number or county is quoted in the operative part of the deed the transfer should be amended and re-executed by the parties and not merely be initialled. If the transferor executes the transfer by affixing his/her mark, an affidavit of attesting witness in Form 20 of the Land Registration Rules 2012 should be lodged. Rule 54 of the said Rules enables us to dispense with the Form 20 affidavit if the required information referred to in Rule 54 is set out in the attestation clause of the deed.

Unless the transferee is charging the property or granting rights the deed need not be signed by him/her. If a charge or other rights are being reserved by the transferor, the deed must be signed, sealed and delivered by the transferee as well as by the transferor [reservations will operate fully whether or not the grantee has executed a conveyance or transfer on or after 1st December 2009, section 69 of the Land and Conveyancing Law Reform Act 2009].

2. Transfer of registered property to two persons as joint tenants

Form 19 of the Land Registration Rules 2012 refers.

If the transfer is to “A” & “B” simpliciter or to “A” & “B” as joint tenants, they are to be registered as follows:
“A (farmer) and “B” (nurse) both of Spiddal County Galway are owners”

If however any further words are added such as “to “A” & “B” “(in equal shares as joint tenants)” or “(jointly and between them)”, they may be joint tenants or tenants in common.

In such cases the deed should be amended to express the intention of the parties or an assent to their registration as “tenants in common” or “joint tenants” should be lodged. Such words are known as words of severance. Other words of severance are “to be divided amongst” “equally” ” between”. If the words show that the tenants were to take a distinct share in the property a tenancy in common is created.

If a registered full owner wishes to transfer to him/herself and another as joint tenants s/he may do so in the following form:
“John Smith” the registered owner hereby transfers ……….to him/herself the said “John Smith and “Mary Smith”. There is no need for a nominal trustee.

On the death of a joint tenant the whole property goes to the survivor(s) and on the death of the last survivor the whole property goes to the person(s) entitled on testacy or intestacy of the last survivor.

3. Transfer of registered property to two or more persons as tenants in common

Such transfers are effected by use of the appropriate words of severance i.e. “to A & B as tenants in common in equal shares” or “to A & B in the following shares as to A one third, as to B one third, as to C one third”.

If a tenant in common wishes to transfer to him/her self and another as tenants in common, there is no need for a nominal trustee. An undivided moiety is an undivided half share.

If “A” transfers his “undivided moiety” to “B” the registration to be effected is as follows :
“B (Farmer) of Spiddal, County Galway, is owner as tenant in common of the undivided moiety of which “A” was registered at Entry No 1″

If “A” transfers his undivided moiety to “B” the owner of the other undivided moiety, then if there is no burden or charge to prevent the two undivided moieties merging “B” should be registered as owner of the entire property in one entry.  Merger would be prevented by a burden or charge affecting either undivided share only.

When one tenant in common dies, his/her share does not survive to the others but goes to those entitled on his/her testacy or intestacy.

4. Transfers as between joint tenants and tenants in common

If two joint tenants transfer to themselves as tenants in common they may do so without the need for a nominal trustee. Similarly, two tenants in common may transfer to themselves as joint tenants without the need for a nominal trustee. If however each tenant agrees to take a specific part of the whole as exclusively his/her property they are no longer joint tenants or tenants in common. The estate has been partitioned. If one joint tenant of three transfers his/her share to a stranger or to one of the others the transferee becomes a tenant in common with the others. From the 1st December 2009, under section 30(1) of the Land and Conveyancing Law Reform Act 2009, any conveyance, or contract for a conveyance, of land held in a joint tenancy, or acquisition of another interest in such land by a joint tenant without the prior written consent of the other joint tenant(s) is void both at law and in equity unless such consent is dispensed with under section 31(2) (e). Evidence of such consent will have to be lodged in the Land Registry.

5. Transfer by a registered owner of registered property creating rights in favour of him/her self and others

Form 30 of the Land Registration Rules 2012 refers.

The transferee must assent to the registration of the rights and the entry of the inhibition, if required. If the assent is not contained in the transfer it may be given separately by the transferee or his/her solicitor. Where given by the solicitor s/he must state explicitly that s/he is solicitor for the transferee.

An exclusive right of residence will be registered as a burden e.g. exclusive use of a bedroom or exclusive use of a dwellinghouse, see section 81 of the Registration of Title Act 1964. Otherwise an exclusive right to the use and possession of specified property is a trust which cannot be registered as a burden e.g. exclusive use of a field or a haggard. Same can be protected by way of suitable inhibition, if required.

6. Transfer of property by a registered owner of a charge in exercise of his/her power of sale

Form 24 of the Land Registration Rules 2012 refers.

The registered owner of a charge for the repayment of any money advanced on the security of the property has power to sell the property on which the charge is registered. In the usual case if A is registered as owner of freehold property and B is the registered owner of such a charge, then B can sell the full ownership provided the date for repayment has arrived. See section 62 (1) (2) & (6) of the Registration of Title Act 1964.

When any such power is being exercised, unless the folio clearly indicates that the charge is for money actually advanced on the security of the property, registration is not to proceed until the officer has been clearly satisfied that the charge was for money so advanced.

In respect of charges dated on or after 1st December 2009 a mortgagee’s power of sale shall not become exercisable without a court order granted under section 100(3) of the Land and Conveyancing Law Reform Act 2009 unless the mortgagor consents in writing to such exercise not more than 7 days prior to such exercise. Evidence of a court order or relevant consent under this section will be required in relation to powers of sale exercised under charges dated on or after the 1st December 2009. Section 100(3) applies to any housing loan mortgage notwithstanding any stipulation to the contrary and notwithstanding any powers and rights expressly conferred under such a mortgage, but in relation to any other mortgage, take effect subject to the terms of the mortgage [section 96(3) of the 2009 Act]. A court order or relevant consent under section 100(3) is not required if evidence is lodged that the charge is not a housing loan mortgage and that the provisions of section 100(2) and (3) have been contracted out of in the deed of charge. The evidence that the charge is not a housing loan mortgage can be either; the chargor/mortgagor is not a natural person or if the chargor/mortgagor is a natural person the PRA will require a solicitor’s certificate that the charge/mortgage is not a “housing loan mortgage” within the meaning of Section 3 of the Land and Conveyancing Law Reform Act 2009 and Section 2(1) of the Consumer Credit Act 1995 and the chargor/mortgagor is not a “consumer” within the meaning of Section 2(1) of the Consumer Credit Act 1995 for the purposes of the relevant charge/mortgage.’

In the case of sales by the owner of a charge created on registered land notice is to be served after registration on the registered owner of the folio and on the owners of all charges and burdens that rank in priority after the transferor’s charge. Burdens and Charges that are shown on the Register to rank in priority to the transferor’s charge are not to be cancelled.

In the case of sales by the owner of a charge created prior to first registration (including first registration of a lease dated prior to 26th May 2006) prior notice must be served on the registered owner and on the owners of all charges and burdens which it is proposed to cancel pursuant to section 60 of the Registration of Title Act 1964 and any objections received must be carefully considered by a Divisional Manager or Assistant Principal Officer. The priority of burdens entered upon first registration must not be presumed from the order of registration of such burdens and great care must be exercised before cancelling any such burden as section 74 of the 1964 Act does not apply (see McAllister at page 178).

If the transferor’s charge is registered as a burden on a limited ownership, a joint tenancy or a tenancy in common, the case is to be submitted to the Divisional Manager.

If the transferor is registered as a joint tenant, a tenant in common or a limited owner of a charge, the case is to be referred to the Divisional Manager.

7. Voluntary transfer of freehold property by a registered full owner with a power of revocation

Form 23 of the Land Registration Rules 2012 refers.

The transfer is to be made by the registered owner to the transferee subject to the power of revocation. The transferee will be registered as owner of the folio subject to an inhibition.

If a power of revocation is reserved in a transfer of a leasehold interest, the case should be submitted to the Divisional Manager.

8. Transfers by persons entitled to be registered as owners of land

A person on whom the right to be registered as owner of registered land has devolved by reason of:

(a) the death of such owner, or

(b) the defeasance of the estate or interest of such owner, or

(c) a transfer, may transfer the land subject to any burdens or rights that would affect his estate or interest if such estate or interest were registered even though he is not himself registered as owner and such transfer will have the same effect as if he were the registered owner at the date of the transfer or charge. (See section 90 of the Registration of Title Act 1964.)

9. Deeds of transfer dealing with equities

Where a deed or transfer recites matters affecting the equities, if the equities are not discharged and no application is pending for their discharge, [or if the property is registered as Possessory and no application for conversion is lodged] the Settling Officer should enter a title note “See Instrument No…….”

10. Transfer to a Company within the meaning of the Companies Act 1963

10.1 General
See Rule 74(1) of the Land Registration Rules 2012. Evidence of incorporation must be produced on registration of a transfer to a company.

10.2 Irish Company
If registered under the Companies Acts the original Certificate of Incorporation or a duplicate issued by the Registrar of Companies must be produced, if a company is not already registered in the Land Registry.

If not so registered, evidence of its incorporation e.g. by Charter or Statute must be produced if such company is not already registered in the Land Registry.

10.3 Foreign Company
A company incorporated outside the State that applies for registration shall produce evidence of its incorporation.

Accordingly on receipt of an application for registration of a foreign company, the solicitor for the applicant company should be asked to furnish either a Certificate from the Registrar of Companies pursuant to the European Communities (Branch Disclosures) Regulations 1993 or a certificate from the Registrar of Companies that the particulars required by section 352 of the Companies Act 1963 has been filed disclosing that the company is incorporated in _________.

In certain cases either of the above proofs will not be available. In such cases, relevant documentary proofs of incorporation (with certified copies for retention) and if necessary, duly authenticated translations may be lodged.

Alternatively, a Statement or Certificate (with authenticated translation, if necessary) by a recognised authority on the corporate law of the domicile of the company i.e. the law by which it is incorporated, that it is a corporate entity in accordance with such law, is acceptable.

In cases where doubts arise as to the adequacy of the proofs of incorporation lodged the direction of the Divisional Manager is to be sought.

The property is to be transferred to the Company in the same name as that on the Certificate of Incorporation.

The seal of the company should likewise be in the same name as the Certificate of Incorporation.

However it has been held that the word “Limited” can be contracted to “Ltd”.

A grant to a company in any other than its true name is void.

An error in the name will not, however, render a grant bad, if the name given is sufficient to indicate the intentions of the grantor and to clearly distinguish the grantee from others.

11. Transfer by a Company within the meaning of the Companies Act 1963

11.1 General
Every limited company shall, under the Companies Acts, have its name engraven in legible characters on its seal.

“Engraven” according to the Companies Office means “put on by metal, stone or wood, but not rubber”.

If the seal of a company does not cause an impression in the paper and/or is illegible, the direction of the Divisional Manager is to be obtained.

The name of the company, on the Register, recited in the deed and appearing on the seal must correspond (allowing for the accepted contractions).

The sealing requirements for transfers by companies are as follows:

11.2 Irish Company registered under the Companies Acts
On such a transfer where the seal appears to have been affixed in the presence of

  1. the Secretary, or
  2. Deputy Secretary, or
  3. a member of the Board of Directors of the company,

the Authority shall be entitled to assume that the deed was duly executed by the company. See Rule 74(4) of the Land Registration Rules 2012.

If attested by any person other than one of these, the Memorandum and Articles of Association should be produced in order to ascertain that the deed was duly executed.

11.3 Other Irish Corporate Bodies
Same must affix a seal and execute the deed in accordance with their governing regulations. Appropriate evidence of such compliance should be lodged.

11.4 Foreign Companies
If the company has a corporate seal and is empowered to use it, it must be affixed to the deed and evidence of compliance with the company’s governing regulations lodged (with authenticated translations where necessary).

Under section 64(2) (b) (iv) of the Land and Conveyancing Law Reform Act 2009, an instrument executed on or after the 1st December 2009 is a deed “If made by a foreign body corporate, it is executed in accordance with the legal requirements governing execution of the instrument in question by such a body corporate in the jurisdiction where it is incorporated”. Therefore a seal is no longer necessary for a foreign company. Rule 74(5) of the Land Registration Rules 2012 provides “On a disposition made by a foreign body corporate where a certificate is lodged from a lawyer from the country in question or who has sufficient knowledge of the laws of the country in question, that the deed was executed in accordance with the legal requirements governing execution of the instrument in question by such a body corporate in the jurisdiction where it is incorporated, the Authority shall be entitled to assume that the deed was duly executed by the body corporate”.

Such certificates should be along the lines of the following and should omit any matters not required under Rule 74(5):

“I am a lawyer in (insert jurisdiction where the corporate body is incorporated) OR I am a lawyer who has sufficient knowledge of the laws of (insert jurisdiction where the corporate body is incorporated).

I hereby certify that (Insert name of foreign body corporate) is incorporated in the jurisdiction of (insert relevant jurisdiction) and the Deed of (insert description of the deed e.g. Transfer) dated XXXX made between (insert name of foreign body corporate) and AB has been executed in accordance with the legal requirements governing execution of the deed in question by (insert name of foreign body corporate) in the jurisdiction of (insert jurisdiction where the body corporate is incorporated).

11.5 Company in Liquidation
If a company is in liquidation this should be recited in the deed and the name of the company should be set out as “A B Ltd (in liquidation)”. The corporate status of the company subsists until it is dissolved. The liquidator has power to sell the property of the company and to execute in the name of and on behalf of the company all deeds and to use, when necessary, the company seal. See section 231 of the Companies Act 1963.

Unless the property has vested in the liquidator under section 230 of the Companies Act 1963 the property remains vested in the company and a transfer must be by or in the name of the company. Accordingly the requirements for the sealing of a transfer by a company in liquidation are as follows:

  1. Where the property is vested in the Company, the seal of the company should be affixed by or in the presence of the liquidator who should also join in the deed to give receipt for the purchase money.
  2. Where the property is vested in the liquidator under section 230 of the Companies Act 1963, the transfer should be by the liquidator and executed as such.

The following documents must also be lodged:

  1. Members/ Creditors voluntary winding up; Copy of resolution for winding up of the company and of appointment of the liquidator, certified by the Company Secretary or copies of the relevant CRO Forms evidencing same certified by the CRO, or
  2. Winding up by the court:  Office copy of the court order winding up the company and appointing the liquidator, or
  3. Where property has vested in the liquidator under section 230 of the Companies Act 1963: an office copy of the order.

11. 6 Company in Receivership
The name of the company should be set out in the deed as A B Limited (in receivership).

It should be noted that a receiver, whether contractual or statutory, is the agent or attorney of the borrower. Therefore, a sale by a receiver does not overreach any interests puisne to the charge. All such interests and the charge itself must be specifically released or discharged.

The points below refer to contractual receivers. Statutory receivers are dealt with in the Practice Direction – NAMA Applications for Registration (updated 1 February 2013).

(i) Debenture not registered:
Before the receiver can exercise the powers conferred under the debenture, the crystallised charge must be registered as a burden on the folio. See Rule 107 of the Land Registration Rules 2012.  The application for registration of the crystallised charge shall be in Form 54 and the entry in Part 3 of the folio shall be in Form 55.

The additional prior documentation to be lodged to enable registration of a transferee from a receiver in such a case are:

  • Original Debenture and appointment of receiver and certified copies of same
  • Application in Form 54
  • Assent to registration of the crystallised charge as a burden (Form 48 of the Land Registration Rules 2012). The receiver may assent, on behalf of the company, to the registration of the crystallised charge as a burden.
  • Certificate re section 99 of the Companies Act 1963 (if the debenture has been registered in the Companies Office). See Rule 106 of the Land Registration Rules 2012.
  • After lodgement of the deed of transfer, the crystallised charge may be released in Form 57A of the Land Registration Rules 2012.

(ii) When charge is registered and ownership of same is registered:

  • Original Deed of Appointment of receiver and certified copies of same
  • Deed of transfer from receiver

After lodgement of the deed of transfer, the charge may be released in Form 57A of the Land Registration Rules 2012.

(iii) Execution of the Deed of Transfer by Receivers:

The Supreme Court dealt with the execution of deeds by receivers in the case of IDA v Moran [1978] I.R. Page 159.

The Court held that by reason of the powers vested in the receiver by the debenture and the provisions of Section 46 of the Conveyancing Act 1881, [now Section 17 of the Powers of Attorney Act 1996], the execution of the conveyance by the receiver in his own name was effective to vest in the purchaser the company’s fee simple estate in the lands assured by the receiver and that the company’s Articles of Association did not require the grant by the company of a power of attorney to be authorised by the company in general meeting.

In an “obiter dictum” Kenny J. set out the “usual and better practice” in executing such deeds:

  1. The receiver writes the name of the Company
  2. Underneath this he/she writes words that indicate that the name of the company was written by the receiver as attorney of the company under power of attorney given by the debenture.
  3. He/she then executes the deed in his/her own name. This confers the advantages of Section 46 of the Conveyancing Act 1881, [now Section 17 of the Powers of Attorney Act 1996], provided that Article 81 of Table A was included without material qualification in the Articles of Association of the company, at the time that the debenture was entered into.

12. Transfer by Receiver of property owned by an individual

Such transfers are acceptable for registration provided that;

The charge under which the receiver is purporting to transfer the property is already registered as a burden on the folio.

The instrument containing the charge must be inspected to ensure that the charge authorises the appointment of a receiver [that the receiver is appointed as attorney of the borrower and has a power of sale] in the event that the borrower defaults on the loan.

The original or certified copy of the deed of appointment of the receiver must accompany the deed of transfer. Check the deed of appointment to ensure that the receiver has been appointed as attorney of the borrower under the powers contained in the deed of charge.

In the transfer, the property should be transferred by the registered owner through the receiver as attorney for the registered owners.

The deed should be “executed by the receiver as attorney for the registered owners” and witnessed.

In these cases the charge is not automatically cancelled on registration of the new owner. Neither are any other burdens which rank in priority after the charge (unlike a transfer in Form 24). A deed of discharge/partial discharge (if part being transferred) by the bank is required to cancel the charge. Likewise a discharge of any subsequent burdens/charges will be required in order to cancel these.

13. Transfer under Order of the Court

Any such transfer should be submitted to the Divisional Manager.

14. Resulting Uses

In the case of a deed of transfer of registered land executed after 1st January 1967, a resulting use or trust for the transferor is not be implied simply by reason of the fact that the property is not expressed to be transferred to the use or benefit of the transferee. (See section 123 of the Registration of Title Act 1964).

Example: A transfers to B, no consideration is expressed (either valuable or natural love and affection) and the words “unto and to the use of B” are omitted. B is to be registered as full owner.

15. Transfer lacking words of limitation

In the case of a transfer of freehold registered land to a person or corporation sole executed after 1st January 1967, (unless a contrary intention appears in the deed), the fee simple or entire interest which the transferor had power to transfer passes under the deed and there is no necessity to use any words of limitation, e.g. “in fee simple”, “and his heirs”, “and his successors”. (See section 123 of the Registration of Title Act 1964.)

16. Sealing of Deeds

Sealing by an individual is not required for conveyances or transfers executed on or after 1st December 2009, section 64 of the Land and Conveyancing Law Reform Act 2009).

On a disposition by a company where the seal appears to have been affixed in the presence of and attested by the secretary, deputy secretary or a member of the board of directors, this may be taken as sufficient evidence of due execution. (Rule 74, Land Registry Rules 2012.)

Property Registration Authority
01 December 2009
Updated:
16 April 2013
23 August 2017
27 September 2017
9 April 2018
13th August 2018