Burdens - Registration of Burdens
1.1 Burdens which may be registered No burden can be registered unless: (i) It is specified in section 69, R.O.T. Act, 1964, (the 1964 Act) as amended by any subsequent Act, (e.g. section 66 of the Wildlife Act, 1976). Note that a new burden was added to section 69(1)(kk) of the 1964 Act under section 128 of the Land and Conveyancing Law Reform Act, 2009 (the 2009 Act) to allow for registration of positive freehold covenants under section 48 of that Act. (ii) it is properly created, and (iii) the registered owner, or the person prescribed by Rule 88(L.R. Rules, 2012), concurs in the registration, or registration is ordered by Court (section 69(2), R.O.T. Act, 1964).
1.2 Practice when assent to registration of burden is not lodged If the consent to the registration of burden created by a deed is not provided in the documents lodged the appropriate assent should be requisitioned. The application is not to be rejected for the appropriate assent. If other matters are lodged for registration besides the burden the solicitor may be informed that if the assent is not lodged within a specified time registration will proceed without reference to the burden.
1.3 Notice of Burdens under section 72 The matters set out in section 72 affect without registration and may not be registered as burdens. On lodgment of an application to register any such matter as a burden, the dealing is to be rejected and the Solicitor informed that the burden affects without registration by virtue of section 72. If re-lodged with request to register notice of the burden (under section 72(3)), such registration should be made.
The consent of the registered owner or his Solicitor to the entry of such notice is necessary. Certain Acts have added to the list of burdens under section 72 e.g. The Gas Act 1976 (section 43) Landlord and Tenant (Ground Rents) Act (No 2) 1978 (Section 28(2)), as updated by section 77 of the Registration of Deeds and Titles Act 2006 Capital Acquisitions Tax Act 1976 (section 68 (2)) Finance Act 1993 (section 107(2)) (Residential Property Tax) Act
The entry on the folio should be prefaced by ” Date ) Notice of burden under Section 72 Inst )
1.4 Charges under section 62 of the Registration of Titles Act, 1964 as amended by the Land and Conveyancing Law Reform Act, 2009
Charges of registered land
Section 89(1) of the Land and Conveyancing Law Reform Act, which commenced on 1st December 2009 provided that a legal mortgage of land may only be created by a charge by deed. The former methods of creating a legal mortgage over unregistered land by conveyance or demise, in the case of freehold land, or by sub-demise or assignment, in the case of leasehold land, were abolished.
A further provision contained in the amendments, which are set out in Schedule 1 of the Act, effects an important change in relation to charges over registered land. Section 62 of the Registration of Title Act 1964 provided that a charge over registered land must be ‘in the prescribed form (or an instrument in such other form as may appear to the Registrar to be sufficient to charge the land, provided that such instrument shall expressly charge or reserve out of the land the payment of the money secured)’. The 2009 Act deletes the words in brackets.
Charges executed on or after 1st December 2009 prior to 1st March 2012
The procedures relating to these charges are set out in Legal Office Notice Approval of Deeds of Charge (Rule 52 Land Registration Rules 2012) – No. 9/2009
Charges executed on or after 1st March 2012
Rule 105 of the Land Registration Rules 2012, (S.I. No. 483 of 2012), prescribes charge forms, Form 49 – 53 and 56 – 58. The Rule and Forms prescribed therein apply to all charges, residential and commercial, executed on or after 1st March 2012. The prescribed form of charge for present and future advances, to facilitate residential mortgages, is Form 51. The deed must be one page only with any mortgage conditions filed on a separate document. This is based on the IBF form in widespread use since December 2009 and gives statutory validation thereto.
In respect of debentures and commercial mortgages, executed on or after 1st March 2012, where a specific charge on registered land is intended to form part of the security,Form 52is the prescribed form in accordance with Section 62(2) of the 1964 Act. It is a simple one page document intended as supplemental to the principal deed of commercial mortgage/debenture. The mortgagor will be required to execute both documents but only the one page Form 52 will be lodged with the Authority. The debenture/commercial mortgage will be retained by the lending institution.
Both new forms may be adapted by individual lenders in accordance withRule 52(1) of the Land Registration Rules 2012 and being one-page only will facilitate the introduction of eregistration/econveyancing in due course.
Practitioners and lending institutions should note that while the above requirements apply to registered land only, there being no forms prescribed for unregistered land, the new forms facilitate charging unregistered land also, the mortgagor charging as ‘beneficial owner’ rather than as ‘registered owner’.
2. Charges other than by sole registered full owners
2 .1 Charges by personal representatives of registered owners (a) Charges in respect of (i) the debts of deceased owners and (ii) the liabilities of the personal representative in the administration of the deceased owner’s estate are to be entered in the Register as:- “Charge for such sums (not exceeding €……. in favour of X, the personal representative of Y, which he is liable to pay as such personal representative”.
(b) Charges where created in respect of a distributive share of next-of-kin of a deceased registered owner who died prior to 1st June 1959 are to be created in favour of such next-of-kin and entered in the Register as:- “Charge for sums not exceeding €…….. in favour of X in respect of his distributive share in the estate of Y, deceased. X, of ………………………… is owner of this charge.”
2.2 Charges by joint tenants A charge by one of a number of joint tenants does not sever the joint tenancy. Where such a charge is dated prior to 1st December 2009, the applicant should be informed that the charge will fail on the death of the joint tenant who created the charge unless s/he is the surviving joint tenant. If no reply is received to this requisition within 21 days, registration is to proceed. The following note is to be entered at the foot of the charge:
NOTE: “This charge affects the interest of A B in the property.”
Notwithstanding that a charge by one joint tenant does not sever the joint tenancy, the prior written consent of the other joint tenant(s) is required for such a charge dated on or after 1st December 2009. In the absence of such prior consent(s), the Dealing should be rejected with the following query raised:
“As a charge does not constitute an alienation, it cannot of itself operate to sever the joint tenancy. In the event of such a charge being validly created, it could only be registered against the interest of the chargor and it is liable to fail if the chargor is not the surviving joint tenant. However, in view of Section 30 of the Land and Conveyancing Law Reform Act 2009, and the definition of “conveyance” in that Act as including “charge, and in the absence of the prior written consent of the other joint tenant(s), the charge lodged for registration appears to be void”.
In the event that a charge, which is dated on or after 1st December 2009, is accompanied by the prior consents of the other joint tenants, proceed in the same manner and raising the same query as for charges dated prior to 1st December 2009.
2.3 Charge by person entitled to be registered as owner of land or charge See Section 90 R.O.T. Act, 1964.
2.4 Priority of charge to judgment mortgage in certain cases
If an application for priority is made and proof as set out below is furnished, a charge executed by a purchaser from the registered owner [or alternatively the registered owner]and lodged for registration subsequent to the registration
of a judgment mortgage affecting the interest of the purchaser from a registered owner [or alternatively the registered owner] may be registered in priority to the judgment mortgage where there has been a loan agreement and payment of the loan moneys pursuant to it, prior to the date of registration of the judgment.
See Industrial Credit Corporation PLC V. M. J. Gleeson & Co. Ltd. and the Governor and Company of the Bank of Ireland (High Court, O’Carroll J. 1 8.2.92)
Such registration is to be made only if a request for priority is made and proof is given and then only after notice to the party in whose favour the judgment mortgage is registered and in the absence of objection.
The proof required is the Loan Agreement (with a certified copy for retention) [or if not available the executed deed of charge which must predate the registration of the judgment mortgage] and an affidavit by the party seeking the priority and in whose favour the charge is made. The affidavit must prove the loan agreement and the payment of the loan moneys on foot of it prior to the date of the registration of the judgment as a mortgage. It must also identify the person against whom the judgment was registered as a mortgage (that is the judgment debtor) with the purchaser from a registered owner [or alternatively the registered owner] who executed the loan agreement, received the loan money and executed the charge.
The priority note is to be entered at the foot of the charge showing its priority to the judgment mortgage and a note is to be entered also at the foot of the entry of the judgment mortgage showing that it ranks in priority after the charge.
3. Charges by companies
3.1 Charges by companies within the meaning of the Companies Act, 1963
See Rule 106 of the L.R. Rules, 2012.
The Companies Registration Office (CRO) regard Form 51 and the incorporated terms and conditions together as a single charging transaction. Therefore, only one delivery to the CRO of particulars of that transaction is required and only one entry is made on the register of charges maintained under Section 103 of the Companies Act 1963. Only one certificate of registration of the charge will issue from the CRO.
Similarly, where Form 52 and the mortgage/debenture are dated the same day, the CRO view them as a single security transaction spread over two (or more) deeds or other documents. In such cases, only one entry is made on the register of charges maintained under Section 103 of the Companies Act 1963 and only one certificate of registration of the charge will issue.
It may be the case, in either of the above situations, that the certificate of registration of the charge in the CRO is attached to the mortgage terms and conditions or to the mortgage/debenture. It is a matter for the solicitor to lodge the certificate, or a copy thereof, with the Form 51 or 52.
Where Land Registry Form 52 is executed on a date other than the date of the mortgage/debenture, the CRO take the view that there are two separate charges to be registered by CRO against the company concerned. In this case, a separate certificate of registration will issue in respect of the Form 52. The date of the security referred to in any CRO certificate of registration, which is presented with the Form 52, must be the same date as that set out in the Form 52.
In any case where the certificate referred to in the Rule has not been produced the following entry should be made-
Note:- “The Certificate as to registration required by section 409 of the Companies Act, 2014, has not been produced”.
3.2 Debentures A debenture is a charge by a company, which is expressed to be a floating charge on all its assets, and may also include a fixed charge on lands or other immovable assets. From 1st March 2012, a debenture is not registrable per se as a charge affecting folio lands. A supplemental charge in Form 52 is required to create a specific charge of registered lands.
3.3 Charge by Societies registered under the Industrial and Provident Societies Act 1893 A Society registered under this Act is entitled under section 36 to mortgage land held by it and no purchaser or mortgagee is bound to enquire as to the authority for any such mortgage.
Similarly the Land Registry is not bound to enquire. The name of a Society registered under this Act must end with the word “limited” e.g. The Ballymagash Co-operative Agricultural Society Limited. As such a society is not a company within the meaning of the Companies Acts 1963 to 1983,Rule 106does not apply to it.
4. Charge for debts of a transferor
A transferor may charge the property transferred with the amount of specified debts in favour of a specified creditor and such a charge may be registered.
A transfer by A to B subject to the debts in general of A, to which A’s creditors are not parties and which is not known to them, does not create any right over the property for the creditors.
It is, in effect, a transfer to B in trust to pay A’s debts and subject thereto on trust for B. On such a transfer, a general charge for debts is not to be registered.
While there is no obligation on the registering authority to insist on the entry of an inhibition to protect the trust to pay the debts, the Solicitors should be referred to Rule 64 of the L.R. Rules, 2012 and informed that the following form of inhibition would be appropriate and will be entered if required:-
“All dealings by the registered owner are inhibited except after notice to A or his personal representative.”
5. Lien for unpaid purchase money
A lien for unpaid purchase money should not be registered unless its registration is applied for under Rule 117 and the appropriate fee for its registration is paid. Where a transfer on sale is lodged, and it appears that the purchase money or part of it is unpaid, no query is to be issued as to whether registration of a lien as a burden is desired and registration should proceed without regard to the question of lien.
6. Miscellaneous Burdens
6.1 Rights of residence (exclusive and otherwise), Maintenance, Supportand the like
Such rights are burdens. See section 69(1)(q) R.O.T. Act, 1964. They may be created by express grant or charge by the registered owner, or transfer of the property subject to them.
When rights of maintenance and support only are created these rights are to be specifically referred to in the entry of the burden on the folio as “maintenance and support” in view of the decision in Morgan V Morgan (93 I.L.T.R. 117).
Where rights and privileges of a temporary nature which cannot be stated concisely are created, they may be entered on the folio by reference to the Instrument, e.g.:-
“The rights and privileges specified in Instrument No…………… in favour of X during his life.”
Section 41 of the 2009 Act prohibits the creation of rentcharges in law or in equity after the 1st December 2009. This does not apply to the creation of a rentcharge under a contract entered into before the commencement of this Chapter, an order of the court or any statutory provision. Therefore it appears that where a transfer is made after 01 December 2009 subject to an annuity, the annuity can no longer be registered as a burden on the property and remains a contract debt only.
Unless a contrary intention appears in the Instrument, an annuity or right of residence is to be deemed to endure during the life of the person entitled.
6.2 Exclusive Use The right to the exclusive use of any specific part of property (except as in (3) below) cannot be registered as a burden since it is an equitable right to the ownership of the specific part of the property. (National Bank -v Keegan I.R. 1931, pp. 344, 357).
An inhibition is to be entered against all dispositions for value by the registered owner with the specific part of the property specified on the instrument during the period it is subject to the exclusive user except with the consent of the person entitled to such user.
6.3 Exclusive Use of Dwellinghouse or Part An exclusive right of residence or exclusive use of a Dwellinghouse or any part thereof is a burden and must be registered as such. (Sections. 69(1)(q) & 81 of the R.O.T. Act, 1964.)
6.4 Where Inhibition has been entered in respect of exclusive use of the Dwellinghouse On many old folios an inhibition will have been registered restricting all dealings for value by the Registered Owner affecting the Dwellinghouse (or specific part thereof) without the consent of the person in whose favour an exclusive use has been reserved or granted.
Such exclusive use is to be regarded as a burden only (section 81 & 69(1)(q) of the R.O.T. Act 1964) and all transfers for value are to proceed without reference to the inhibition. Same is however a valid registration and is to remain on the folio.
6.5 Registration of a charge on a Folio on which an inhibition is entered On the registration of a charge for valuable consideration on a folio on which is registered an inhibition against dealings with a specified part of the property except with the consent of same person or persons and such consent is not lodged, the following note is to be inserted in the entry of the charge:-
“Note:- This Charge does not during the life (lives) (or other period) (of X) referred to at Entry No …. affect the part of the property referred to at said Entry No….”.
6.6 Covenants to Support, etc A Covenant to support and maintain a person on the land or in a Dwellinghouse on the land or to permit him to reside thereon and/or for payment or an annuity, alternative or otherwise, may be registered as a burden with the assent of the transferee, even if the covenant is not expressly charged on the land. (See Re Shanahan (1919) 1 I.R. 131).
If the assent of the transferee is not lodged registration should proceed without reference to such covenants, unless registration thereof is specifically applied for, in which case such assent should be requisitioned as directed in Chapter 1. (2) of this Practice Direction.
6.7 Covenants and conditions relating to Use and Enjoyment of Land Such covenants and conditions may be registered on lodgment of the prescribed concurrence to their registration, (see section 69(1) (k) R.O.T. Act 1964 and section 69(1) (kk) of the 2009 Act).
6.8 Lis Pendens No entry of a lis pendens as a burden can be made on the register unless the suit in question is one that affects the title to the property comprised in the folio. If it appears from the application that part only of the property is affected, the part affected should be identified in accordance with Rule 56. The application to be in LR Form 64 of the Land Registration Rules 2012, as amended by the Land Registration Rules 2013, to reflect the procedural changes made in the 2009 Act. The entry on part III shall be in LR Form 65 (L.R. Rules 2012). The lis pendens must be registered in the Register in the Central Office of the High Court under the 2009 Act, even where the lis pendens was obtained in the Circuit Court.
6.9 Options to purchase Agreements and covenants in deeds and leases which give options to purchase or to lease are not to be registered as burdens. The only entry that can be made is an inhibition against dealings with the land affected by the option except with the consent of the person entitled to the option.
6.10 Powers of Revocation A power of revocation when properly created is to be registered as an inhibition (see LR Form 23). In freehold land a conveyance to uses is no longer necessary to properly create such a power following on from the repeal of the Statute of Uses (Ireland) Act 1634 in section 62 of the 2009 Act.
An inhibition can be registered (as per LR Form 23) in relation to the power of revocation: The entry of the inhibition is made as follows:- “No registration under a disposition for value is to be made without prior notice to A.B (A.B, the transferor)”
On exercise of the power the settling officer must carefully consider whether the interests protected by the inhibition created by the original deed are overreached by the revocation. If the documents lodged do not show the concurrence of the registered owner, the notices specified in section 60 of the R.O.T. Act 1964 and Rule 76, L.R. Rules 2012, should be served.
6.11 Choice of Site It occasionally occurs in transfers and transmissions that the choice of a site for a house is given to a member of a family other than the transferee or devisee as the case may be.
If the choice of site has been made the Solicitor should be requested to show the site on a map and informed that an Inhibition may be entered affecting the plot shown on the map on lodgment of the consent of the applicant or his Solicitor.
If no choice has been made the Solicitor should be informed that an Inhibition may be entered affecting all the lands in the folio on lodgment of the consent of applicant or his Solicitor.
The form of the Inhibition should be as follows:- “All dealings with the property (or the part of the property specified in Instrument No. ) are inhibited except with the consent of …”.
7. Land Purchase Annuities
7.1 The Entry The entry of a Land Purchase Annuity on all new folios, (save as at (2) hereunder), is to be in the following words:- “The property is subject to a Land Purchase Annuity.”
In all folios subject to a Land Purchase Annuity the Collection Numbers are to be shown at the foot of Part 1 of the folio.
7.2 On Consolidation with Labourers Plot In the case of the consolidation of Labourers Plots with holdings subject to a cottage purchase annuity and a Land Commission annuity the annuity is to be entered on the new folio in this form:- “The property is subject to a Land Purchase Annuity and a cottage purchase (years) annuity payable to the Land Commission.”
7.3 Change made in amount of annuity shown Where a change is made in the amount of the annuity where such amount is noted on the folio the existing entry is to be cancelled and an entry in the above form made.
7.4 Additional Advance If the note is in the new form the collection number of the additional advance is to be inserted at the foot of Part 1 of the folio.
7.5 Certificates of Revised Annuities No certificates of revised annuities are in future to be requisitioned from the Land Commission.
8. Charges and Prohibition Notes under the Purchase of Land (Advances by Land Commission) Regulations 1967 – made under section 5 of the Land Act 1965
Land in respect of which an advance is made may be charged with such advance by charging order (or by deed) made by the Land Commission and, whether created by Order or by Deed, such charge shall take priority over all charges and encumbrances whether statutory or otherwise, except sums payable to the Commissioner of Public Works in Ireland and any annuity payable to the Land Commission. (It is understood that the charging order procedure will be used exclusively by the Land Commission).
Land on which an annuity is charged shall not within a period of ten years from the date of such charging be let, sublet, transferred, assigned or subdivided without the consent of the Land Commission, and any such consent may be made subject to such condition as to apportionment or redemption of the annuity as the Land Commission may think fit to impose. Any attempted or purported letting, subletting, transfer, assignment or subdivision shall be null and void as against all persons.
The prohibition note and charge are to be drafted as follows:-
“The property is subject for 10 years from (date of charging) to the provisions prohibiting letting, subletting, transfer assignment or subdivision specified in the Purchase of Land (Advances by Land Commission) Regulations, 1967 made under section 5 of the Land Act, 1965.”
“Charge in favour of the Irish Land Commission in respect of an advance of £/€ made under Section 5, Land Act, 1965 and the Purchase of Land (Advances by Land Commission Regulations, 1967 (Serial No. ).
The annuity is € : :
Note: “This charge ranks in priority prescribed by Article 13 of the Purchase of Land (Advances by Land Commission) Regulations, 1967”.
The amount of the annuity will be obtained from the Certificate of Advance by the Land Commission attached to the dealing.
If the annuity is redeemed with the consent of the Land Commission the prohibition note and charge are to be cancelled in respect of the property on which the annuity is redeemed. Except on the expiry of the period prescribed by the regulations the prohibition note is not to be cancelled except with the consent of the Land Commission.
Stamp duty shall not be chargeable on any instrument made for the purpose of this section and this includes both the transfer to the purchaser and the charging order (see section 5(3) of the Land Act, 1965 and section 20 of the Finance Act, 1967).
No registration fees are to be charged on the transfer or charging order both of which will be lodged by the Land Commission in pursuance of its policy and duty (section 14 of the Registration of Title Act, 1964).
9. Land Reclamation Charges and Inhibitions
9.1 Registration of Inhibition Where a notification pursuant to section 2(3) of the Land Reclamation Act, 1949 is lodged it is to be given effect to by the entry of an inhibition on the relevant folio in the following form:-
“All transfers for value by the registered owner of the lands comprised in this folio are inhibited except after notice to the Minister for Agriculture (section 2(3) of the Land Reclamation Act, 1949).”
If no other dealing is pending the notice may be pinned to the folio and the folio filed without the actual engrossing of the entry.
If subsequently a further dealing is lodged the notice is then to be set up and settled as a dealing and the above inhibition entered. The required notice will then be served on the Minister for Agriculture if the subsequent dealing is a transfer for value before proceeding to register such subsequent dealing.
9.2 Registration of the Charge Where the Land Commission charges the property with a Land Reclamation Charge and lodges the certificate under section 3(8) the charge is to be registered. The date of registration of the charge is the date of the Certificate of the Minister certifying the completion of the works.
If an inhibition under paragraph (1) hereof is registered in respect of the same occupier’s contribution, such inhibition is to be cancelled on the registration of the charge.
9.3 Where transfer for value lodged On lodgment of a transfer for value affecting a folio subject to an inhibition under the above provisions, notice should be served on the Minister for Agriculture in Form O/155B.
If no objection is received from the Minister within the time stated in the notice, registration under the transfer should proceed, but the inhibition should not be cancelled.
The Land Reclamation Act does not place a restriction on the right of the owner to transfer or sell. Therefore, it would appear that the Minister has no authority to cause the registration to be delayed. Any objection by the Minister should, of course, be considered, but unless valid grounds of objection are made, registration should proceed after the expiry of the notice period and the Minister so informed. The Authority is not authorised to delay registration merely at the behest of the Minister.
Originally published 24 July 2012
Updated 9th January 2015
Paragraph 2.4 updated 5th November 2018