First Registration in Form 3
1. Scope of this Practice Direction
This Practice Direction deals with applications for first registration based on a solicitor’s certificate in Form 3 pursuant to Rule 19(3) of the Land Registration Rules 2012 and applications by statutory authorities pursuant to Rule 19(4) of the Land Registration Rules 2012.
2. Legislation referred to
1. Registration of Title Act, 1964 – “1964 Act”
2. Land Registration Rules 2012 (S.I. 483/2012) – “2012 Rules”
3. Land Registration Rules 2013 (S.I. 389/2013) – “2013 Rules”
3. Applications that may be registered under Form 3 procedures
Rule 19(3) of the 2012 Rules provides that on a sale where the purchase money does not exceed €1,000,000 that the Authority may register a title as Absolute, Qualified or Good Leasehold, as appropriate.
Rule 19(4) of the 2012 Rules provides that where property is acquired by a statutory body and the purchase money or compensation does not exceed €1,000,000 the Authority may register the title as Absolute, Qualified or Good Leasehold, as appropriate.
An application under Form 3 should not be accepted where;
1.A. In the case of Rule 19(3), if it is not a sale (for example, a voluntary conveyance/assignment, or an exchange with no money paid in equality of exchange). Note that Rule 19(4) does not require the transaction to be a sale.
B. The consideration is over €1,000,000
C. In the case of Rule 19(3), the deed is over 5 years old
D. The application is for a possessory title
E. The purchase money has not all been paid over prior to the application (Note Paragraph 5 in Form 3)
F. The prior title (or part of it) was based on possession
G. The applicant is not in a position to lodge the original deed (for example, if it has been lost)
H. Where the solicitor certifying the title is a party to the transaction
I. Where the following issues are disclosed, whether in recitals or otherwise;
a. That title is subject to any unexplained rents or covenants
b. Where any intermediate or other interest has been forfeited or surrendered
c. Where the interest being conveyed/assigned is the lessee’s interest under a renewable Lease
d. Where a step in the prior title is impossible or erroneous
e. Where there is an enlargement of an existing interest (see also Paragraph 4)
Where there is doubt as to whether an examination of title is merited in any particular case, the application should be passed to the line manager for consideration as to whether such examination is actually required prior to passing it to the Legal Services Unit.
4. Interest passing
Only the interest passing in the deed should be registered under a Form 3 certificate.
a. Where one tenant-in-common acquires the interests of the other tenants-in-common in a property.As the applicants’ pre-existing interest did not pass in the deed the pre-existing interest should not be registered under Form 3. The solicitor should be advised of this and informed that if it is intended to register the pre-existing interest, that prior title to same should be lodged. On receipt of the prior title, the application should be passed to the Legal Services Unit for examination.
b. Where an applicant holds an unregistered leasehold interest and subsequently acquires the freehold, or a superior leasehold interest, and merger is required.This is an enlargement and is not suitable for certification in Form 3. Same should be passed to the Legal Services Unit.
c. Where both the leasehold and superior interests have been acquired simultaneously in the most recent deed.If it is clear that the lodging solicitor has investigated both interests, registration may proceed.
Care should be taken to ensure registration of burdens that appear to affect the land as described in Section 69 of the 1964 Act. Burdens which affect without registration (Section 72 of the 1964 Act) should not be registered.
In relation to certain particular burdens;
a. Easements – these affect without registration pursuant to Section 72 of the 1964 Act and should not be registered. A note of existence of same can be registered pursuant to Section 72(3) if the solicitor applies ab initio, but no query is to issue.
b. Mortgages/Charges – these should be registered. If only a copy deed is lodged and the original deed is not forthcoming, advise the lodging solicitor that registration can proceed without the original deed, but the mortgage would be registered without ownership, noting the consequences of same. The consequence of registering a mortgage without ownership is that the mortgagee does not have a power of sale, and a release of it in the future would require an examination into the title of the mortgage. If the mortgage is still not forthcoming, proceed to register without ownership.
c. Leases granted for a term of more than 21 years. The original lease or a certified copy should be lodged. Register as a burden.
d. Covenants and conditions – it often happens that property in housing or commercial developments are subject to covenants and conditions relating to the use and enjoyment of the property. If it appears from the certificate or the deed that the property is subject to such covenants and conditions, a copy of the deed creating the covenants and conditions should be lodged and same will be registered.
a. Form 3 in the prescribed form (2013 Rules) with all paragraphs included, signed personally by the solicitor certifying the title, and dated within 1 month of lodgement. The solicitor certifying the title must a practising solicitor i.e. must hold a practising certificate from the Incorporated Law Society of Ireland. In addition the solicitor certifying the title must be the purchaser’s solicitor i.e. the solicitor who acted for the purchaser in the relevant conveyance or assignment.
b. Form 17 signed by an individual practising solicitor who must be the solicitor who signed the Form 3 or be from the firm of the solicitor who signed the Form 3. The Form 17 can also be signed by a solicitor on behalf of a financial institution where a charge by the purchaser in favour of the financial institution forms part of the title.
c. The most recent conveyance/assignment on title. In addition the following deeds which should be referenced in the application should be lodged.
1. Where the interest passing is leasehold, the lease or an attested copy thereof should also be lodged.
2. Where the interest passing is held under a fee farm grant, the fee farm grant, or an attested copy thereof should also be lodged.
3. Where the property is conveyed or assigned by reference to a map attached to an earlier deed, a copy of that earlier deed with a colour copy of the map attached should also be lodged for identification purposes.
4. Original deeds evidencing burdens [Section 69)
- Mortgage/Charge that are on title e.g. by the purchaser/applicant.
- Subsisting leases granted for more than 21 years.
- Subsisting covenants and conditions.
5. Where the rents under a lease or a fee farm grant have been adjusted, apportioned or indemnified in full or in part, and it is intended that the adjustment, apportionment or indemnity be registered, then a copy of the deed adjusting, apportioning or indemnifying the rent should also be lodged for the purpose of registering same. Where such deeds indemnifying/apportioning or adjusting the rent are not lodged, registration may proceed without query, but the indemnity, apportionment or adjustment should not be noted on the folio to be opened.
d. PRA compliant map
e. Fees (currently €130)
Other than as set out in Paragraph 6(c) above, the prior deeds or documents forming part of the prior title should not be lodged. If unnecessary prior title is lodged and the title is not being investigated by the Authority [i.e. where the application is not being processed in the Legal Services Unit] the following query will be raised with the lodging solicitor
“As application is made in Form 3 of the LR Rules 2012, prior title should not be lodged as the PRA relies solely on the solicitor’s certificate. The lodgement of prior deeds/ documents is therefore confusing. These documents have not been read. Please confirm that you are satisfied that the title is in order and that an examination of the prior title lodged is not required, in which case we will proceed on the basis of the certificate and the earlier documents will be returned, unread. If any doubt exists as to title, an application in Form 1/2 of the LR Rules 2012 may be required”.
Having regard to the requirements under the Data Protection Acts, any documentation not required for registration should be returned on completion.
Mapping Branch should be directed as to whether to map as freehold or leasehold.
A search for Cautions against First Registration and continuation searches in the Registry of Deeds and Judgment Office [from the date prior to the date of the Form 3] should be carried out prior to completion. A Certificate of No Acts may be requested in lieu of searches in the case of a statutory body applying under Rule 19(4). In appropriate circumstances the Certificate of No Acts may be dispensed with, for example, where the property acquired by a local authority comprises roadway.
Legal Office Notice 8/2011, having been incorporated into this Practice Direction, is hereby rescinded.
Practice Direction “First Registration in Form 3” (27 November 2009 (updated 1 February 2013) is hereby rescinded.
John Murphy ______________________
5th September 2019