Hidden charges and overriding interests

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1. Are there any such hidden charges in your system? If so, please list them, and explain how a buyer can discover them. Explain if there is any simple way that the property can be freed from them.

There are legal interests that will bind a bona fide purchaser for value and successors in title, regarding registered land.

Conclusiveness of the Register

Under Section 31(1) of the Registration of Title Act, 1964, the register is conclusive evidence and the title of any person shown on the register is not affected by his having notice of any deed, document or matter relating to or affecting the title shown, unless there is actual fraud, and a purchaser for value who becomes the owner of registered land is not affected therefore by notice of anything not appearing on the register unless it is a burden affecting registered land without registration. There are limits to the conclusiveness of the title protected by a State guarantee.

Section 69 of the 1964 Act enumerates the burdens that must, in order to affect a purchaser of registered land, be registered as such. Registration under s.69 means that the burden becomes a legal interest in the land on the register, which being conclusive is enforceable against all owners of the land as long as it remains registered. The section includes for example, charges, judgment mortgages, rights of support and residence. Easements and profits à prendre created by express grant or reservation after first registration of the land, fall into this category of rights capable of protection by registration.

Section 72 prescribes burdens which affect registered land without registration, which all registered land shall be subject to, that is the prescribed burdens that affect the land, whether those burdens are or are not registered.

There is provision for the registration of a notice of existence of a Section 72 burden. Notice of the existence of the burden shall be given by an entry in the register to that effect. This is rarely availed of  practice.  Section 72 interests override the interest of the registered owner and are automatically binding of the registered estate.

Section 72 burdens are prescribed as follows:

a) estate duty farm tax and interest payable on farm tax [Section 21(6) of the Farm Tax Act, 1985], succession duty, gift tax and inheritance tax [Section 113 of the Capital Acquisitions Tax Consolidation Act, 2003], former crown rents, tithe rentcharges and payments in lieu of tithe or tithe rentcharge, residential property tax [Section 107(6) of the Finance Act 1993];

b) land improvement charges and    drainage charges;

c) annuities or rentcharges for the repayment of advances made under the provisions of any of the Land Purchase Acts on account of purchase money;

d) rights of the Land Commission or of any person under a vesting order, vesting flat, final list or transfer order made or published under the Land Purchase Acts;

e) rights of the Land Commission upon the execution of an order for possession issued under section 37 of the Land Act, 1927;

f) rights of the public or of any class of the public;

g) customary rights, franchises and liabilities arising from tenure;

h) easements and profits à prendre, unless they are respectively created by express grant or reservation after the first registration of the land;

hh) any wayleave which is a wayleave to which this section applies; [inserted by Section 43 of the Gas Act, 1976],

i) tenancies created for any term not exceeding twenty-one years (or such other period as may be prescribed) [amended by Section 60 of the Registration of Deeds and Title Act, 2006] or for any less estate or interest, in cases where there is an occupation under such tenancies;

j) the rights of every person in actual occupation of the land or in receipt of the rents and profits thereof, save where, upon enquiry made of such person, the rights are not disclosed;

k) in the case of land registered with a possessory, qualified or good leasehold title, all rights excepted from the effect of registration;

l) a perpetual yearly rent (in this section referred to as the superior rent) which is superior to another such rent (in this section referred to as the registered rent) registered as a burden on registered land and which, as between the said registered land and the registered rent, is primarily payable out of the registered rent in exoneration of such land;

m) the covenants and conditions contained in the deed or other document creating the superior rent, in so far as those covenants and conditions affect such land;

n) a purchase annuity payable in respect of a cottage which is the subject of a vesting order under the Labourers Act, 1936;

o) restrictions imposed by section 21 of the Labourers Act, 1936, on the mortgaging or charging of cottages purchased under that Act;

p) rights acquired or in course of being acquired under the Statute of Limitations, 1957;

q) burdens to which section 59 or 73 applies.

r) covenants which continue in force by virtue of section 28 of the Landlord and Tenant (Ground Rents) (No. 2) Act, 1978. [inserted by Section 28 of the Landlord and Tenant ((Ground Rents) (No. 2) Act 1978]

The investigation of Section 72 burdens which affect registered land as a burden whether registered or not is a matter for investigation by the purchaser, who is usually represented by a solicitor. It is common practice for a declaration to be completed by the vendor in the matter. The declaration is not required for registration purposes.

2. Do any of these, or any other similar matters, have priority over a mortgage, where the lender was acting in good faith and was unaware of them? Explain if there is any simple way that the property can be freed from them.

The duty of a mortgagee to investigate the title fully is no different from that of a purchaser for value, i.e. it must satisfy itself to the existence or otherwise of Section 72 burdens prior to securing its charge against the property. Registration of the charge will be subject to any Section 72 burdens that affect without registration and the mortgagee makes the necessary enquiries to satisfy itself as the existence of any legal interests which may affect its ability to enforce the security.