This Practice Direction deals with the inspection and provision of copies of documents filed in the Property Registration Authority on foot of registrations made, pursuant to Rule 159 of the Land Registration Rules, 2012 (LR Rules 2012).

2. Notes for Settling Officers

2.1. Requesting documents

While an application is pending, care should be taken when requesting further documentation to only request documentation that is relevant and necessary for registration.

2.2. Retention of documents

Only documentation required for the registration applied for should be retained. Any documentation that is not necessary (e.g. Family Home or Civil Partnership declarations, and Section 72 of the Registration of Title Act 1964 as amended [1964 Act] declarations) must be returned on completion of the application.

3. Procedure on application

3.1. Meaning of “Document”

There is no statutory definition of “document” in the 1964 Act. For the current purposes of this Practice Direction, a document is to be considered as anything in which information is recorded. This would include anything on an instrument, including deeds, affidavits (and exhibits), correspondence and internal memoranda and notes.

3.2. Meaning of “Instrument”

Likewise, there is no statutory definition of Instrument in the 1964 Act. The generally understood meaning of “instrument” is a formally executed written document that records and formally expresses a legally enforceable act, for example a deed of conveyance or charge or an assent on transmission, or indeed a contract or will.

In the PRA the term “Instrument” also has the technical meaning as the bundle of documents lodged for registration. This will include Form 17, any correspondence and any deeds or documents lodged to support the application for registration. In this practice direction “Instrument” with a capital “I” refers to this bundle of documents.

Rule 159 of the LR Rules 2012 mainly refers to “documents”, with the exception of Rules 159(3) to 159(5) which specify the actual document which may be inspected, and Rules 159(6) and 159(7) which refer to “instruments”. In the context of Rules 159(6) and 159(7), the generally understood meaning of the term “instrument” should be applied, being only the relevant deed, and not the entire bundle of documents.

3.3. Pending Applications

Pending applications are not subject to Rule 159 of the LR Rules 2012 and applications to inspect or copy should not be accepted. Pending dealings are subject to data access requests and may be inspected upon receipt of a valid data access request as set out in the PRA’s Data Protection Policy.

3.4. Right to take copies

Pursuant to Rule 159(8) of the LR Rules 2012, if a person is entitled to view a document, that person is entitled to a copy of it.

3.5. Inspection under supervision

Where an applicant who is entitled to inspect a document wishes to inspect rather than obtain a copy, an officer of the PRA must remain present with the person at all times during the inspection. Where redaction is necessary, it should be done prior to the inspection.

3.6. Third party information/redaction

Having regard to the requirements under the Data Protection Acts, and GDPR personal information relating to third parties should be removed from the document being viewed/copied, and a redacted copy provided. The redaction should take place in line with best practice. Care should be taken that the redaction cannot be bypassed. Note that where the consideration is to be redacted, care should be taken to ensure that the consideration be redacted from the Form 17 of the LR Rules 2012 too, if it is stated on the Form 17.

Under no circumstances, other than to the person who lodged the information, or under an Order of the Court, should a copy of information provided for identification purposes be issued, or be permitted to be inspected (e.g. in the case of personal applications). Where personal information is included, for example utility bills lodged as proof of occupation in respect of an application under Section 49 of the 1964 Act, these documents should not issue except to the party who lodged them, the third party about whom information has been lodged (in the case of information about third parties), or under Order of the Court.

4. Family Law and Civil Partnership documentation

Care should be taken that documentation relating to Family Law and Civil Partnership issues does not issue to parties who are not entitled to such documentation. This includes Family Home or Civil Partnership declarations and copies of Orders made pursuant to Family Law or Civil Partnership proceedings. As a matter of course, Family Law or Civil Partnership documentation is not to issue except in the case of the specific circumstances set out below, and even then, only on specific request.

1. Parties to the declaration may inspect or obtain a copy.

2. As a deed may be voidable within 6 years pursuant to the provisions of Section 54(1)(b) of the Family Law Act 1995 or Section 28(12) of the Civil Partnership and certain Rights and Obligations of Cohabitants Act 2010, the current registered owner may inspect or obtain a copy of any Family Home or Civil Partnership declaration that is made in support of a deed that is less than 6 years vintage but only on specific request.

Applications other than as above should be referred to the Divisional Manager for consideration on a case-by-case basis

5. Applications based on Entitlement (Rule 159 LR Rule 2012)

5.1. Registered Owner/Consent of Registered Owner (Rule 159(1))

The registered owner of a folio may inspect any instrument or document related to his/her title or any Instrument entered on his/her folio subject to certain limitations;

1. The documentation should relate to the title of the registered owner. With transfers of part, for example, where part of the folio has been transferred to a third party, the registered owner may only inspect the transfer of the property to the third party, and not any subsequent documents (e.g. charge by the new owner etc), other than documents creating rights in favour of or against the applicants folio.

2. Family Law and Civil Partnership documents should be dealt with in accordance with Section 4 above.

5.2. Person entitled if the land was unregistered (Rule 159(2))

Rule 159(2) of the LR Rules 2012 provides that any person who would be entitled to inspection of a document relating to property, if its ownership was not registered under the 1964 Act and the document was in the possession of the person by law entitled to the custody thereof, shall be entitled to inspect the document, if filed in the Land Registry.

This rule provides for parties such as the registered owners of charges or persons in whose favour a burden is registered.

This rule also provides for access to a document on the prior registered title for inspection by a person or his/her solicitor where such person has joined in, sworn or executed such document.

It would also apply to persons who had purchased part of the property prior to first registration of the remainder and who had an undertaking for safe custody of the documents being retained by their vendor and now filed in the Registry on first registration of the vendors title to the retained land. In this case consult an Examiner of Titles.

In such cases access is to be granted to the relevant document only, and not to all of the documents attached to the Instrument.

For example, under this rule, a person authorised by a bank would only be entitled to access to that banks charge attached to an Instrument and not to the deed of transfer or other documents.

5.3. Uncancelled Judgment Mortgage (Rule 159(3))

A judgment mortgage registered on a folio may be inspected by any person under this rule, so long as notice of its deposit or the entry of the judgment mortgage is uncancelled in the register. If an application is being made under this rule, the folio should be inspected to ensure that the judgment mortgage has not been cancelled. The right of inspection under this rule only extends to the affidavit in Form 60, 60A or 60B of the LR Rules 2012.

5.4. Uncancelled Lis Pendens (Rule 159(4))

A subsisting entry of a lis pendens, bond, recognisance or inquisition, filed in the Land Registry, may be inspected by any person under this rule, so long as the entry relative to it remains uncancelled in the register. If an application for inspection is made under this rule, the folio should be inspected to ensure that the relevant entry has not been cancelled. It is to be noted that the right of inspection is confined to the specific documents referred to in Rule 159(4) of the LR Rules 2012.

5.5. Devisee or next of kin entitled on intestacy, or successor (Rule 159(5))

Rule 159(5) of the LR Rules 2012 provides that an application, assent, affidavit, or transfer, made by a personal representative of a deceased owner of property that vested in the personal representative may be inspected by a devisee or other person, except a creditor, having an interest in the property under the owner’s will or, where the owner died intestate, by a person in whom a beneficial interest in the property devolved on the intestacy or by a person who satisfies the Authority that they are the successor in title of one such persons.

This would not extend to a transfer for value by the personal representative.

In such cases, lodgment of the necessary proofs setting out fully the applicant’s interest is required. Lodgment of photocopies or faxes from law search firms does not suffice. Access under this rule is to be provided only to the relevant document.

5.6. Person entitled pursuant to Rule 130(5) (Rule 159(6))

Rule 159(6) of the LR Rules 2012 provides that an instrument filed in the Registry under Rule 130(5) of the LR Rules 2012 may be inspected by the person by whom it was lodged or by any person who satisfies the Authority that s/he is entitled to the benefit of a right created by the instrument.

Under Rule 130(5) of the LR Rules 2012 an “instrument” (meaning in this context a legal document in writing such as a deed or will) creating an unregistered right or interest, may, if the applicant so applies, be filed in the Land Registry for safe custody. Such unregistered right or interest will be protected by way of registration of an inhibition. Rule 129(1) of the LR Rules 2012 refers.

The necessary proofs must be lodged setting out in full the interest of the applicant. Photocopies or faxes from law search firms are not acceptable in cases of applications made under this rule. Access is to be provided only to the relevant document.

5.7. Unregistered property subject to easement/profit registered under Rule 46 (Rule 159(7))

The owner of unregistered property subject to an easement or right of way by prescription and registered under Rule 46 of the 2012 Rules may inspect the application. It is not necessary for the applicant to prove title to the standard of a full application for first registration, but sufficient proof that the applicant is the owner should be lodged, for example, a certified copy of the conveyance of the property to the applicant.

6. Applications based on special circumstances (Rule 159(9) LR Rules 2012)

Rule 159(9) of the 2012 Rules provides that the Authority may, in special circumstances, and on such terms as it shall think fit, permit a person to inspect a document filed in the Land Registry. Any such application should be in writing, and set out fully the reasons for seeking access.

Applications for access to documents by bodies such as the Revenue Commissioners, the Gardai, the Criminal Assets Bureau, and the Department of Social Protection (formerly Department of Social, Community and Family Affairs) (where such bodies are not on title) are to be processed under this rule.

Note that each sub-section of Rule 159 of the LR Rules 2012 operates independently. If, for example a person is entitled under Rule 159(7) of the LR Rules 2012, then if that person also makes application under Rule 159(9) of the LR Rules 2012, it need not be considered as the person is already entitled to a copy.

Regarding the appropriate test for “special circumstances”, in Quinn v Property Registration Authority [2016] IEHC 212, Abbott J stated;

McAllister in Registration of Title in Ireland 1st Ed., (Dublin, 1973) p. 314, traces the history of similar provisions to r. 159 of the Land Registration Rules 2012 in the earlier rules, and states, in relation to the earlier r. 188 of the Land Registration Rules 1972, as follows:-

“Rule 188 now, clearly limits further the right to inspection. Notwithstanding the decision In Re Fitzgerald, supra, it is submitted that a man’s title deeds are his private property so that no one except those with a genuine interest should be allowed inspection of them and that efforts of would be litigants, curiosity mongers and mischief makers should be discouraged as much as possible”

I am satisfied that for the purpose of this application r. 188 of the Land Registration Rules 1973 [sic] sets a standard which has been replicated by r. 159 of the Land Registration Rules of 2012.

On appeal, (Quinn v Property Registration Authority [2017] IECA 231) Hogan J did not dispute this view, adding that “every iteration of the Rules since 1937 to 2012 has, in one shape or another endorsed the general confidentiality of the land registry system, subject to appropriate exceptions”

Accordingly, inspection pursuant to Rule 159(9) of the LR Rules 2012 should only be granted in cases where the applicant has established circumstances of such a nature that would warrant deviation from the principle of general confidentiality and duty to protect data under the Data Protection Acts.

Certain types of applications will generally be considered to have shown sufficient “special circumstances” within the meaning of Rule 159(9) of the LR Rules 2012;

1. The former registered owner, where the property has been sold under a Power of Sale, or a sale by a receiver would generally be approved to inspect the transfer by the bank/receiver and if applicable, the subsequent release of the mortgage. This applies to the transfer and release only, and not to subsequent documentation (e.g. a new mortgage or subsequent dealings by the new owner)

2. Where a bank is in possession under a Court Order, and requests a copy of a deed containing easements that affect the property (whether as burdens or as appurtenant), a copy of the deed may issue, redacted as necessary.

Other cases should be referred for consideration as to whether to grant or refuse inspection. Where an application is refused a written decision should be provided as the refusal may be appealed to Court under Section 19 of the 1964 Act. See also the Practice Direction – Court Cases and Procedures.

7. Receivers/Powers of Sale

7.1 Power of Sale

A mortgagee is entitled to a copy of the mortgage pursuant to Rule 159(2) of the LR Rules 2012 whether or not the mortgagee is in possession. If the mortgagee applies for other documents, it will be necessary to consider these applications under Rule 159(9) of the LR Rules 2012.

7.2. Possession by way of surrender

In some cases the owner of a property surrenders possession of the property to the bank voluntarily. In such cases, there may not be an Order granting possession to the bank. In such cases appropriate proofs of possession should be lodged and the application should be referred to the HEO for consideration, and referred to the Examiner of Titles, if deemed appropriate.

7.3. Receiver

Generally, a mortgage contains a power to appoint a receiver, who acts as attorney for the mortgagor. The General Mortgage conditions provide the receiver with powers which appear sufficient to act in the place of the registered owner. Accordingly, an application by a receiver may be treated as an application under Rule 159(1) of the LR Rules 2012. It will be necessary for the receiver to prove appointment by lodging a certified copy of the power of appointment and a copy of the mortgage to determine that the receiver actually has the powers to permit inspection or copy.

8.Multiple Applicants/Owners including Bulk Transactions

Where there are a number of registered owners registered as tenants-in-common , and an application to inspect an Instrument is received in respect of one of these owners, only documents relating to that particular owners interest in the property may be inspected. For example, a charge by one tenant-in-common cannot be inspected by the other tenants-in-common.

Similarly, where an application relates to multiple folios, only information relevant to the applicant should be provided.

In recent years there have been a number bulk transactions involving the transfer of the ownership of a significant number of charges. In order to minimise the risk of significant data breaches, these Instruments are retained separately from general filing, and every application for a copy of same should be treated with extreme care to ensure that only information relating to the individual applicant is provided, e.g. details of all third parties and the consideration should be redacted. See also the Practice Direction – Bulk Transfers of Charges and Judgment Mortgages.

9. NAMA

Section 220 of the National Asset Management Agency Act 2009 states:

1. Notwithstanding anything in the Land Registration Rules 1972 to 2008, an officer of NAMA, an adviser acting on behalf of NAMA or a person nominated in writing by the Chief Executive Officer of NAMA may inspect and take copies of any document filed in the Land Registry on a dealing or transaction with the property of any person.

2. This section applies only to documents relevant to an acquired bank asset.

3. A person who seeks to inspect or take a copy of a document pursuant to subsection (1) shall produce to the Property Registration Authority evidence that he or she is a person authorised under that subsection to do so.

In cases of doubt the application is to be referred to the Divisional Manager for direction.

Access under this rule is to be provided only to the relevant document.

10. Miscellaneous Matters

10.1. Accountable Trust Receipts

Rule 152 of the LR Rules 2102 provides that certain original documents contained on an instrument may be returned to the person who would be entitled to custody, on payment of the prescribed fee. Broadly, the categories of documents that may be returned Rule 152(1) are;

instruments dealing with registered and unregistered property
A subsisting settlement or trust
A subsisting lease or fee farm grant
A charge to secure future advances.

Any application for the above categories of document should be made pursuant to Rule 152(1), and the practice of issuing deeds on Accountable Trust Receipt is to cease, except in the case of applications by the Revenue Commissioners in the performance of their statutory functions.

Where the document sought does not fall into the categories provided for in Rule 152(1), an application may be made under Rule 152(3), but it should only be considered in the most exceptional of circumstances. Alternatively a Court Order may be lodged requiring delivery of the document, in which case, the document should be delivered, in compliance with the Order.

All such applications should be recorded as an “S” application, and a copy of the document(s) should be taken, together with a colour copy of any maps, prior to issuing the document. Rule 154 of the LR Rules 2102 provides that no original deed shall be delivered from the Registry unless it is suitably endorsed, and all deeds should be endorsed prior to delivery.

10.2. Production of Documents in Court

Rules 156 and 157, LR Rules 2012, deal with the transmission of a document filed in the Registry for a court hearing. The document can be all, or part, of an Instrument. The application for transmission of such a document or Instrument shall be made in Form 82 and should quote the title of the court case together with the Record Number under which it is being dealt.

On receipt of a completed Form 82, an “S” application should immediately be created and the original Instrument recalled from the Central Storage Facility. Once the Instrument is to hand, it should be copied to include colour copies of any maps contained therein. The copy Instrument should be retained with the “S” until such time as the original has been returned. The Instrument should then be sent to the relevant Registrar of the court where the case is pending under cover of registered post. If the registered owner/s of the property in question is/are not a party to the court case, then notice should be served informing such registered owner/s of the fact that the Instrument has been transmitted to the court outlining the court case heading and Record Number.

10.3. Statistics

Under section 32(6) of the Freedom of Information Act 1997 enactments (the definition of which includes statutory instruments) which authorise non-disclosure of information in the possession of public bodies will be considered by a Joint Committee of the Oireachtas.

Each Department must provide the Committee, within 12 months of the commencement of the Freedom of Information Act 1997 (21 April 1998) with a report as to whether (in view of the provisions, purposes and spirit of the Freedom of Information Act 1997) such provisions authorising non-disclosure should be amended, repealed, or allowed to continue in force.

In view of this statutory obligation and the need for management to provide such report to the Joint Oireachtas Committee, a statistical record is to be kept of the number of Rule 159 applications made each month, the number granted, the number refused, and of the grounds for refusal.

10.4. Freedom of Information Act

The Freedom of Information Act 2014, (“FOI Act”), which was enacted on the 14th of October 2014, came into operation in respect of the Authority on the 14th of April 2015.

Section 41(1) of the FOI Act provides that the CEO as head of the PRA shall refuse to grant an FOI request, where the disclosure of the record is prohibited by enactment, or the non-disclosure of the record is authorised by enactment in certain circumstances, and the case is one in which the head would, (pursuant to the enactment), refuse to disclose the record. As “enactment” includes a statutory instrument, the LR Rules 2012 are an “enactment” for the purposes of Section 41(1).

Where an application, under Rule 159 of the LR Rules 2012, to inspect a document or Instrument filed in the Land Registry is refused, such non -disclosure is authorised by the Rule. It appears, therefore, that any request to inspect or obtain a copy document or Instrument, which has been refused under Rule 159, must also be refused under Section 41(1) of the FOI Act.

The general “right of access” under Section 11 of the FOI Act is subject to the other provisions of that Act. In the event that a person is aggrieved by a decision of the Authority, s/he may, in appropriate cases, appeal to the court. It is not appropriate and serves no purpose to advise a party, who has been refused access under Rule 159, to apply to inspect a document or Instrument under the FOI Act, when we would be obliged under Section 41(1) to refuse such request. In any event, a “document” or “instrument” to which Rule 159 applies would appear to be an “exempt” record within the meaning of Section 2(1) of the FOI Act.

10.5. Fraud

Where a concern exists that an application is being made fraudulently, refer to the PRA Counter Fraud Policy for guidance on how to proceed.

Where an application contains an allegation of fraud which could impact negatively on the Register, the matter should be brought to the attention of the PRA Counter-Fraud Officer for investigation.

10.6. Data Protection

Under the Data Protection Acts, and the GDPR, the Authority has a duty to secure personal data. While Rule 159 of the LR Rules 2012 provides for the inspection of documents in certain circumstances, care should be taken that personal data is not given to a third party where the information is not authorised under Rule 159, as this would result in a data breach. Where there is doubt, the matter should be referred for consideration.

Where it is believed that a data breach may have occurred, the matter is to be reported to the Data Protection Officer immediately.

Practice Direction – Inspection of Documents [published 1 December 2009] is hereby rescinded.

___________________

John Murphy

Deputy Registrar

19 November 2018