Cases moving from Examiners’ Areas to Dealings Divisions – Legal Office Notice No. 3 of 2011
CHECKLIST No. 1
Assignments of Leases of registered land dated prior to 26th May 2006
a) Assignment lodged in same dealing as the Lease
b) Assignment lodged as a separate Dealing while Lease was pending registration
c) Assignment of a Lease already registered as a burden with a residue of more than 21 years unexpired
This Checklist applies to all of the above application types.
1. A Deed of Assignment or Deed of Transfer is acceptable. Ensure that the Deed of Assignment or Deed of Transfer adequately describes the property by reference to the Lease.
2. In the case of c) above, if there is more than one assignment on title, ensure that there is a complete chain of title from Lessee to applicant and that any mortgages appearing on searches, apart from any subsisting mortgage by the applicant, have been lodged and vacated, or that searches show the relevant vacate or release was registered in Registry of Deeds..
3. Form 2 and 16 {as replaced by Form 2 of the Land Registration Rules 2012}, completed by the applicant for registration should be lodged.
4. Registry of Deeds searches from date of Lease and Judgment Office search for last five years against the applicant should be lodged. If the applicant is a company, Companies Office Search should also be called for. Any acts appearing on searches should be explained by lodging solicitor. If not, return searches with query asking that acts on searches be explained. (See Checklist No. 3).
5. Where the Dealing has been lodged for some time, the property is residential, the applicant’s mortgage has been lodged and the only query is the absence of Form 2, consider if the application can be completed at the discretion of the settling officer as per Direction of 7th October 2009.
6. Subject to the above, continuation searches and cautions search, such applications may be settled and completed. Date of settling is date of registration.
Fergus Hayden
Chief Examiner of Titles.
2nd March 2011
Direction of 7th October 2009 on Leases and Assignments
Introduction:
Section 58 of the Registration of Deeds and Title Act 2006 commenced on 26th May 2006. It amended Section 51 of the 1964 Act to provide that “transfer” shall include “lease”. Therefore, a lease dated after 26th May 2006, which is carved out of registered land, is not regarded as a first registration and affidavits in Forms 2 or 16 or searches are not required for such leases.
A lessee under such a lease has the benefit of Section 90 of the 1964 Act. Therefore, such lessee is entitled to transfer their interest, while they are entitled to but not yet actually registered as owner.
Rule 18 of the Land Registration Rules 1972 {as replaced by 18 of the Land Registration Rules 2012} provides that the PRA may in any case dispense with or modify the official examination of title. Rule 214 of the Land Registration Rules 1972 {as replaced by Rule 182 of the Land Registration Rules 2012} provides that the PRA may, in any particular case, relax the regulations made by the Rules. Relying on these provisions, and by analogy with the processing of Leases dated post 26th May 2006, requests for Forms 2 and 16, could be waived, with little or no risk to pre 26th May 2006 Leases of registered land,in the following cases:
Leases of registered land and subsequent Assignment:
- where the Assignment is on sale
- where Deed of Mortgage/Charge has been executed by the assignee and is lodged with the Deed of Assignment or as a further dealing
- where the consideration is less than €1 million
- the property demised is residential
Direction:
Provided the Dealings meet all four criteria set out in bold above, and that no queries arise other than the absence of Form 2/16 and/or searches, Leases and associated Assignments/Transfers may be completed without seeking Form 2/16. Searches should, in these cases where no searches are lodged, or continuation searches are required, be carried out in-house. Date of registration will be date of settling.
If it is necessary to raise other queries in these cases, then the absence of the Form 2/16 and searches should also be queried. This direction applies only to cases where no other queries arise.
As examination of title is being dispensed with or modified in these particular cases, subject to searches returning no acts, the Dealings may be settled by Dealings staff and need not be passed to ESU nor need they be submitted to an Examiner of Titles.
Fergus Hayden.
Chief Examiner of Titles
2nd March 2011
CHECKLIST No. 2
First Registration of Leases (Form 2)
Application by original Lessee for registration with “good Leasehold” title
1. Check mapping details to ensure that affected property is entirely unregistered lands.
2. Check execution of the Lease by both Lessor and Lessee.
3. Ensure that an affidavit in Form 2 of the Land Registration 2012, or Forms 2 and 16 of 1972 Rules, as case may be, are lodged. If the Form 2 includes an application for registration with “Title Absolute”, but no documents relating to Lessor’s title are lodged, proceed as herein with “good Leasehold” title. If documents of prior title are lodged, and “Title Absolute” is applied for, obtain a direction before proceeding as the case may need to be referred to an Examiner of Titles.
4. Subject to 3 above, provided we are registering with “good leasehold” title, any documentation or searches, which relate to the Lessor’s title, need not be read and should be returned with notice of completion
5. Registry of Deeds searches from date of Lease and Judgments Office search for last five years against Lessees should be lodged. If the applicant is a company, Companies Office Search should also be called for. Any acts appearing on searches should be explained by lodging solicitor. If not, return searches with query asking that acts on searches be explained. (See Checklist No. 3).
6. If the applicant is a Local Authority or State Body, a certificate of no acts may be taken in lieu of searches.
7. Subject to the above, continuation searches and cautions search, such applications may be settled and completed. Date of settling is date of registration.
Fergus Hayden
Chief Examiner of Titles.
2nd March 2011
CHECKLIST No. 3
Notes Explaining Acts on Searches
Registry of Deeds:
1. If solicitors have written “Not on Title” in Observations Column, accept that the disclosed Deed does not affect the subject property.
2. If solicitors have written “On Title” in Observations Column, the Deed should generally be lodged. If such Deed has not been lodged, raise the matter initially with the solicitors. In case of doubt or difficulty, a direction should be sought before settling the case. {Mortgages, judgment mortgages and Deeds of Covenant must be registered as burdens. Deeds of Assignment or Conveyance would suggest that the applicant may no longer be entitled to first registration as owner. Deeds of Grant of Easement affect without registration under Section 72.}
Judgments Office:
The main area of concern, in the case of Judgments Office searches, is that a lis pendens would be returned on a search. Money judgments do not affect title until they have been converted into judgment mortgages by registration in the Registry of Deeds or Land Registry.
1. If solicitors have noted on the search that any party to proceedings is not the applicant or person appearing on the title, accept that the disclosed proceedings are not relevant to the application.
2. If it appears that a party to the proceedings is the applicant, or a person on title, or that proceedings affect the subject property, obtain a direction before proceeding.
Companies Office:
It can occur that a mortgage or charge is registered in the Companies Office and not in Registry of Deeds. A Companies Office search indicates the property affected. It also shows if mortgages or charges thereon have been “Satisfied”. If a mortgage or charge is noted by the Companies Office as “Satisfied”, it is of no further concern to us. What we are looking for are mortgages or charges affecting the subject property or debentures affecting all assets.
Solicitors should be asked to explain all acts on search and in the case of debentures, confirm that they have not crystallised.
As with Registry of Deeds searches, we generally rely on solicitor’s observations endorsed on the search. If there is any doubt, obtain a direction before proceeding.
Fergus Hayden
Chief Examiner of Titles.
2nd March 2011.
CHECKLIST No. 4
Housing Authority Shared Ownership Subleases and Affordable Housing Subleases and Assignments
While technically, the above may be dispositions of unregistered leaseholds, in reality they are statutory schemes for funding the purchase of residential units by qualifying persons.
1. Proceed with registration of Head Lease as per Checklists No. 1 and 2, registering the Shared Ownership/Affordable Housing Sublease as a burden on new Head Leasehold Folio. If the Affordable Housing Scheme is by way of Assignment/Transfer of the Head Lease, register ultimate applicant as the owner. If the Head Lease affects registered lands, then it should be registered as a burden but otherwise is treated the same as a Lease of unregistered lands.
2. Except where the purchaser is taking a Shared Ownership/Affordable Housing Sublease, affidavits and searches need only be furnished for the purchaser. However, in any case where such affidavits and searches are not furnished on behalf of the Housing Authority, no query need be raised. Where Form 2 affidavit by the applicant has not been lodged, and there are no other queries, the Direction of 7th October 2009, referred to in Checklist No. 1 should be considered, including cases where the Head Lease affects unregistered lands.
3. Register with “good leasehold” title, if the Head Lease affects unregistered lands or “title absolute”, where the Head Lease affects registered lands that are registered with title absolute”.
4. On Part 3 of applicant’s Folio, register the appropriate statutory restriction notes, (if any), together with the priority note, where applicable, of the charge in favour of a Financial Institution over Housing Authorities contingent charge securing clawback provisions.
5. Subject to the above, continuation searches and cautions search, such applications may be settled and completed. Date of settling, other than that of Head Lease burden, is date of registration.
Fergus Hayden
Chief Examiner of Titles.
2nd March 2011.
Updated 1 February 2013