Disability - Persons under a disability
An applicant for registration or a registered owner of land may be under disability in law to deal with property.
Section 102 of the Registration of Title Act 1964 deal with persons under disability (section 101 having been repealed by Schedule 8(3) and Schedule 2 of the Land and Conveyancing Law Reform Act 2009) herein after referred to as the “2009 Act”.
Section 102 of the Registration of Title Act 1964 deals with categories of persons of unsound mind and who may represent them i.e. their committee or guardian appointed under the appropriate provisions of the Lunacy Regulations Ireland) Act 1871 or guardian appointed by the court.
2. Disability of Infancy
Rule 148(1) of the Land Registration Rules 2012 sets out the persons who may represent an infant for the purposes of the Registration of Title Act 1964. It provides that an infant may be represented by his/her guardian (if any) appointed by a court of competent jurisdiction or, if there is no guardian so appointed by his/her parents or by a person who is his/her guardian under the Guardianship of Infants Act 1964, or by trustees under the provisions of section 57 of the Succession Act 1965.
Rule 148(2) provides that where it appears to the Authority in the course of any proceeding under the Registration of Title Act 1964, that the person representing an infant has an interest adverse to, or conflicting with, the interest of the infant or that it is in the interest that some other person should be appointed to represent him/her, the Authority may refuse to proceed until another person is appointed to represent the infant in the proceedings.
Rule 149 of the Land Registration Rules 2012 provides that where there is no person authorised by Rule 148 to represent an infant, or where someone other than such person ought to be appointed, the Authority may appoint a person to represent the infant for all or any of the purposes of the Act.
The application to the Authority for that purpose is to be made in writing and is to be accompanied by the consent to act of the person whom it is proposed to appoint and an affidavit of his/her fitness.
All such applications are to be referred to the Divisional Manager for consideration.
The Age of Majority Act 1985 came into operation on the 1 March 1985 and reduced the age of majority from 21 years to 18 years of age.
Section 2 of the said Act provides that a person attains full age
1. If s/he has already attained the age of 18 years or is or has been married at the date of commencement of the Act and
2. After the date of commencement of the Act when s/he attains the age of 18 years or, in the case s/he married before attaining that age, upon his/her marriage.
On attaining the age of majority the description “infant” can be removed from a folio on application on affidavit exhibiting documentary proof of age i.e. State Birth Certificate.
The 2009 Act provides:
1. that where land is vested in a minor, there is a trust of land for the purposes of Part 4 of the Act [section 18(1)(c)], and
2. for the repeal of section 101 of the 1964 Act (registration of infants) [section 8 and Schedule 2, Part 5]
The trustees of the trust are now owners and, in the case of registered land, are entitled to be registered as owners from 1/12/2009. An infant cannot be registered as owner post 1/12/2009 and it is open to the trustees under section 9 of the 2009 Act to apply for registration as full owners as a result of a minor no longer being able to hold a legal estate or interest in land.
Where minors are registered as full owners and are so described, the trustees can be registered as owners simpliciter. Prior to establishing the trustees entitled to be registered as owners there is provision for registration of a cautionary entry to be made under Rule 145 of the Land Registration Rules 2012:
“Where property is registered in the name of a limited owner or an infant or minor, an entry in LR Form 85 set out in the schedule hereto may be made on the folio”.
LR Form 85: “The title is subject to the provisions of the Land and Conveyancing Law Reform Act 2009”.
This registration shows that the Register has effectively been overreached by the 2009 Act pending the registration of the trustees.
To facilitate the registration of the trustees as owners of registered land an application for such registration as follows can be made as follows under Rule 66 of the Land Registration Rules 2012:
“An application for registration of trustees, who are owners of registered land by virtue of the Land and Conveyancing Law Reform Act 2009, shall be in LR Form 86”.
3. Disability of unsoundness of mind
No person is to be described in any Folio of a register as being either a lunatic or a person of unsound mind.
Where documents lodged show that the person entitled to be registered as full owner of land appears to be a person of unsound mind, inquiry should be made as to whether a committee of his/her estate or guardian has been appointed under the Lunacy Regulation (Ireland) Act, 1871, or whether a guardian has been appointed by the Court pursuant to section 102 of the Registration of Title Act, 1964. If such a committee or guardian has been appointed, an office copy of the Order should be lodged. The person of unsound mind may then be registered as full owner and an inhibition entered restricting dealings by him/her without the consent of such committee or guardian (as the case may be) or the Registrar of Wards of Court.
Generally, except where a guardian has been appointed pursuant to Section 102 of the Registration of Title Act 1964 or where a valid enduring power of attorney has been created, a person of unsound mind will be a ward of court. Where an inhibition is applied for, restricting dealings except with the consent of the Registrar of Wards of Court, such inhibition should be entered rather than an inhibition restricting dealings without the consent of the committee or guardian.
Where the application is made by the committee or guardian of a person of unsound mind such person is to be registered as full owner without any description of his/her incapacity and an inhibition entered restricting dealings by him/her without the consent of the committee or guardian.
If no committee or guardian has been appointed under the Lunacy Regulation (Ireland) Act 1871, or under section 102 of the Registration of Title Act, 1964, the person of unsound mind may be registered as full owner and an inhibition entered restricting dealings by him/her except with the approval of the Authority. On lodgement of any dealing by the registered owner, the Settling Officer concerned should seek a direction from the Divisional Manager.
Where a burden is being registered in favour of a person who appears to be of unsound mind and the evidence (supra) is furnished that a committee of his/her estate or guardian has been appointed under either of the above Acts, the burden may be registered and an inhibition entered restricting dealings therewith without the consent of the committee or guardian.
If no such committee or guardian has been appointed, the burden may be registered and an inhibition entered restricting dealings therewith except with the approval of the Authority. On lodgement of any dealing with the burden, the Settling Officer concerned should seek a direction.
Where land has been registered or where a burden has been registered and an inhibition has been entered restricting dealings except after notice to the Registrar of Wards of Court or the General Solicitor for Wards of Court and any dealing with such land or burden (as the case may be) is lodged, the Settling Officer concerned should seek direction. Normally, where a committee or guardian has been appointed, the General Solicitor for Wards of Court has been found to have no function in these matters.
30 November 2009
Updated 09 January 2015
Revised 8 April 2015