REGISTRATION OF SALES
1. Documents for sales. What type of documents does your LR system envisage for sales and carrying out their registration ?
Documents for registration must comply strictly with LR forms for transfer and deeds must be lodged in the correct format. These are published under LR Rules.
2. Method of registration. Please, indicate which of these circumstances or data form part of the content of the registration annotated in the registration books or land books for sake of a sale or conveyance.
The original deed of transfer in the correct form is lodged for registration and retained as part of the instrument (completed application), and is filed in central storage on completion. The register is updated from the date of registration i.e. the date of lodgment to reflect the new ownership i.e. the name(s) and address (es) of the current registered owner(s), with date of registration and instrument number under which registration was affected duly recorded.
REGISTRATION OF MORTGAGES
1. Please, indicate what main legislation governs mortgages in your system.
The Land and Conveyancing Law Reform Act, 2009 governs the law on mortgages together with the Registration of Title Act, 1964 and the Registration of Deeds and Titles Act, 2006 which govern registration.
2. In your LR system, is the registration of a mortgage constitutive?
The effect or registration of a charge is set out in Section 62 of the Registration of Title Act, 1964 Section 62(2) states … until the owner of the charge is registered as such, the instrument shall not confer on the owner of the charge any interest in the land. Registration gives the lender certain powers e.g. a power of sale as mortgagee in possession under Section 62(6). For unregistered land, the deed can be registered in the Registry of Deeds to ensure priority. In any circumstances where land is sold, it must be registered in the LR, so most mortgages/charges will be compulsorily registrable in the LR.
3. Documents. What type of documents your LR system admits for establishing mortgages and carrying out their registration ?
There are specific prescribed forms of charge. Charges for principal sums are dealt with in Form 67.
In relation to charges for present and future advances, Rule 5 of the Land Registration Rules 2011, published in S.I. 559 of 2011, prescribes two new charge forms, Forms 114 and 115. The rule and forms apply to all charges, residential and commercial, executed on or after 1st March 2012. A prescribed form of present and future charge, to facilitate residential mortgages is prescribed in Form 114. The deed must be one page only with any Mortgage conditions filed on a separate document.
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 115 must be used as the prescribed form in accordance with Section 62(2) of the Registration of Title Act, 1964. It is a simple one page document intended as supplemental to the principal deed of Commercial Mortgage/Debenture. The mortgagor will be require to execute both documents but only the one page Form 115 will be lodged with the Authority, the Debenture/Commercial Mortgage to be retained by the lending institution.
[Note the above will need to be revised when new rules/forms are signed into law Nov/Dec 2012].
4. Method of registration. Please, indicate which of these circumstances or data form part of the content of the registration annotated in the registration books or land books. (In case of not making any annotation but simply recording or collecting a copy of the deed, please indicate so.)
The register will show date of lodgement, application number and a charge either for present or future advances or principal sums in favour of the owner of the charge (i.e. the lender). The amount is generally not shown (note it may be on older registrations where revenue duty was required to be paid and the amount of the charge was noted accordingly). In order to determine terms and conditions, the original mortgage deed would need to be inspected.
5. Types of mortgages. If you believe it appropriate, indicate the kinds of mortgages which are relevant in your LR system.
Registration of mortgages covers many different types of mortgages (all deemed to be charges arising from the Land and Conveyancing Law Reform Act, 2009) such as residential loans between banks/financial institutions and individuals, debentures/commercial mortgages by companies, private loans between individual parties, and loans for present and future advances or specific principal sums.
6. Modifications. What does your legal system envisage about modifying mortgages? Do debtors have any legal possibility of negotiating newly the terms of the contract or any part of them?
Debtors may re-negotiate however no registration is made as the terms and conditions do not form part of the register, which is a register of ownership of the charge, registration of which gives the lender certain statutory powers such as a power of sale as mortgagee in possession.
REGISTRATION OF JUDICIARY CHARGES
1. What kind of orders or judgments can create, modify or cancel an entry in your LR system ?
a) Judicial orders of provisional measures to attach restrict disposition acts or freeze the assets of the debtor. Not applicable
b) Judicial decisions in foreclosure proceedings. Not applicable
c) Judicial decisions transferring the ownership or recognizing the property or other real rights on an immovable asset that can directly create, modify or cancel and entry in the land registry.
Applicable: Under Section 21 of the Registration of Title Act, 1964, the Authority shall obey the order of a court of competent jurisdiction in relation to registered land.
d) Judicial decisions ordering rectification of an entry in the Land Registry?
Applicable: Section 32(1) (b) of the Registration of Title Act, 1964 states that where any error originating in the Land Registry (whether of misstatement, misdescription, omission or otherwise, and whether in a register or in a registry map) occurs in registration, the court, if it is of opinion that the error can be rectified without injustice to any person, may order the error to be rectified upon such terms as to costs or otherwise as it thinks just.
e) Judicial decisions about insolvency of owners or holders of property rights or rights in rem.
In other cases the court may appoint the county registrar to execute deeds or documents such as a deed of transfer for example under Ground Rents legislation where the owner of a superior freehold interest cannot be identified or in family law cases where a party refuses to comply with a prior order of the court. These are registrations on foot of court decisions but are lodged in the usual way, i.e. in the appropriate form that complies with registration of title rules. [1972-2012]
2. What’s the kind of registrations or entries caused in registration books or land books by these judiciary orders or decisions?
Common registrations whose content and duration depend on the decision of the Court.
The order of the court is complied with and the registration is changed as directed by the court or as shown in the deed lodged in the appropriate form.
Regarding «Temporary caveats or annotations», if a person has lodged proceedings in court that relate to the property, an application can be made to register the existence of the proceedings as a burden against the registered title. The application is for registration of a lis pendens, which will put any party inspecting the register on notice that proceedings are pending in respect of the registered land, notice of which will be registered as of the date the application for registration of the lis pendens is lodged. There is also provision for registration of the existence of the court order under s. 69(1)(h) of the Registration of Title Act, 1964 which would include, for example, registration of property adjustment orders under family and civil partnership law.
3. In particular, are creditors-plaintiffs who demand payments of sums or money entitled to rely on the Courts and apply for annotations (caveats) or judiciary mortgages in order to attach debtors’ assets?
Lenders have their priority protected by registration of the charge, registration of which gives priority to it over all burdens registered after it. The owner of the charge may sell under a power of sale given by Section 62(7) of the Registration of Title Act, 1964 and if availed of, all burdens registered after it are cancelled on the exercise of the power of sale.
A person owed money may also apply to court for a judgment mortgage for the sum owing to be registered as a burden on the registered title under Section 71 of the Registration of Title Act, 1964. Judgment Mortgages are registered pursuant to Section 116 of that the Land and Conveayncing Law Reform Act, 2009 and the form is prescribed as Form 112 under Land Registration Rules.