First Registration and other Examiner cases

1. Application for First Registration of Freehold Title based on documentary title

2. Application for First Registration of Freehold Title based on Adverse Possession

3. Application for First Registration of Leasehold Title based on documentary title

4. Application for First Registration of Leasehold Title based on Adverse Possession

1. Application for First Registration of Freehold Title based on documentary title

Requirements include:

1.1 Lodgment of affidavits in LR Form 1 of the Land Registration Rules 2012, to be made by the applicant or in the cases of a company by the Secretary or Law Agent. Generally in exceptional circumstances e.g. where the secretary is itself a company etc, the affidavit may be made by a director or an administrative officer with personal knowledge of the facts deposed and duly authorised to make the affidavit for and on behalf of the company. An averment or letter to that effect is acceptable. It may also be made by the Law Agent or Liquidator. In suitable circumstances it may also be made by the solicitor on record.

1.2 The Statement of Title referred to at Rule 15(1)(a) of the Land Registration Rules 2012 is desirable in all cases but may be dispensed with on short titles. Counsel’s opinion may be accepted in lieu (Rule 15(2) and side-note to Form 1) where such opinion contains sufficient detail of the title. See Fitzgerald’s “LAND REGISTRY PRACTICE”, end of Chapter 22.6.

1.3 The Schedule of Documents. It is to be ticked off by the setting-up staff, in confirmation that the documents listed therein are in fact lodged and to ensure that all such documents are date-stamped and referenced.

1.4 An Ordnance Survey map as required by Rule 15 (1)(c) or such other map as is acceptable to the Map Branch is to be lodged. The map on deeds is to be visually compared with the O.S. Map. If the O.S. Map includes property or boundaries not on the deed map consider:

asking the solicitor to explain the discrepancy e.g. an architects certificate
serving notice on adjoining owners
having deed amended and re-executed – if less than 12 years old.

In multi-title or multi-property applications for first registration consider suggesting to the solicitor for the applicant that a composite map, title chart, and related index might be helpful. If necessary the map should be checked initially in mapping branch for confirmation that the application property is in fact unregistered land and for identification of any mapping conflicts.

1.5 Originals of documents of title. They are to be lodged, date-stamped and referenced. Where the originals are not lodged and other property is involved, look for production of same. If there is a difficulty in producing same consider accepting

certificate that they were produced to the solicitor for the purchaser on the closing of the sale, or
certificate that the applicant’s solicitor (who may not have acted for the purchaser in the sale) has satisfied himself that they were not the subject of an equitable lien at the time of closing. In this connection where the vendor was a company consider calling for a companies office search as evidence that there was no equitable deposit of the title deeds. This may be appropriate in subdivision cases. In general this is an area for exercising discretion.

Where the original deeds are not forthcoming a satisfactory explanation must be obtained for the solicitor for the applicant, e.g. destroyed in a fire, burglary, robbery etc. Caution is to be exercised in all such cases, particularly in urban cases.

See Practice Direction – Lost Deeds.

Where the original deeds are lost see in Re Gardiner 110 ILRT P21(1976).

The Examiner must be satisfied that exhaustive searches have been made, that copies of the memorials are produced together with a full copy of the missing deed (if available). S/he should consider serving notice on the Banks Standing Committee. An advertisement in the newspaper will not be generally be required. S/he must ensure that we have an indemnity from the applicant, indemnifying the Authority and the State against all loss that may be incurred by virtue of registering the title as absolute free from encumbrances without production of the original deed, and if possible from the person who lost it, i.e. solicitor, together with an undertaking to produce it to the Authority should it ever come into their possession. If an indemnity bond has been obtained and is available have same assigned to the Authority. If one is being made available consider having same issued in the name of the Authority in the amount of the current market value for whatever period over 12 years that is on offer.

Where the documents disclose a purchasers prior tenancy or other interest in the application property, the prior tenancy is to be dealt with, with a view to merging same or having it noted as a burden on the folio. It will usually be indicated by a small consideration in the deed. The title to the tenancy interest is to be investigated and explanations sought. If the replies are unsatisfactory the Examiner is to consider refusing the application or registering with a possessory title.

If the title deed are numerous consider, on completion of the registration, having same tied with string rather than with rubber band and not pierced or defaced by a fastening pin, marking clearly the documents to be returned and those retained.

Requirements as to Registry of Deeds searches in first registration applications are as follows:

Registry of Deeds and other searches: If none lodged on Preliminary Rulings call for “any searches in your possession”. Where property has been hived off from other property, copies of searches relating to the parent holding may be accepted. Otherwise expect the originals of the searches. When requisitioning searches generally, formal rulings are to be used rather than a letter. Common or Verified Hand Searches are to be requisitioned. Certified hand searches or unverified hand searches lodged may sometimes be acceptable, where no further queries arise. Any acts appearing on the searches are to be explained. Faxed searches should be followed by the originals.

Registry of Deeds search may commence with roots more than 15 years old (section 56 of the Land and Conveyancing Law Reform Act 2009).

The Search is to be made in the Index of Names against all parties including alternative names and spellings as appears from the title documents. The search is to be made from the day before the relevant deed to the day after the date of registration of the memorial of the next subsequent deed; in the case of death, up to the end of the calendar year. Personal representatives are to be searched against from the date of death up to the day after the registration of the memorial of the assent or the next deed of sale. (Note section 51 of the Succession Act 1965 and the case of Crowley v Flynn High Court 1983 ILRM p 513 referred to in Fitzgerald’s ” Land Registry Practice” regarding sales by a personal representative after 20 years and raise a query). Search against beneficiaries, (where there are no personal representatives) from the date of death. Search against trustees, on trust for or with a power of sale, from the date of death.

Search against all descriptions of lands, old and new and requisition fresh searches, if necessary.

Judgments Office Search for lis pendens and judgments entered prior to the 1850 Act and re-registered since. (Section 117 of the Registration of Title Act 1964 and Rule 120 of the Land Registration Rules 2012 would appear to refer to such judgments).

Judgments after 1850 only concern us if they have been registered as judgment mortgages. Otherwise the search may be an indication of the applicant’s financial position – in which case a Bankruptcy search might be called for. Otherwise a Bankruptcy search is not necessary. It is to be noted that District Court judgments are now registerable as judgment mortgages consequent on the Courts Act 1981.

Requisition Companies Office Search against an applicant company and in a suitable case against all, companies on the title – for debentures, liquidators, receivers, change of name, equitable deposit, undertaking etc. The appointment of a receiver crystallises a debenture and the charge is registerable.

Bankruptcy or Sheriffs Office Searches are not generally necessary for our purposes.

First Registration applications based on Certificate in LR Form 3 applications are dealt with fully in Practice Direction – First Registration in Form 3.

Rule 19(5) of the Land Registration Rules 2012 deals with first registration applications where the title has been examined by counsel. Generally the Rule is not appropriate in multi-title or multi-property applications.

The usual note that registration does not extend to the mines and minerals is to be entered on first registration. However this note may require to be deleted where the solicitor requires same deleted and the root of title e.g. Land Commission Conveyance and Charging order prior to 1891, does not reserve or except the mines and minerals.

Where application is made for registration of the title to the mines and minerals on a separate, the direction of the Deputy Registrar is to be sought prior to settling of the application.

Appurtenant rights may attach to the land and be transferred on, without registration. (See section 6 of the Conveyancing Act 1881).

If registration is required, title thereto should be shown and same mapped. Section 82 of the Registration of Title Act 1964 and Rules 25(b) and 3(6)(c)(i) apply.

In Certificate in LR Form 3 cases an appurtenant right may be registered if same is: (i) granted de novo in the deed as distinct from being an existing right of way. (ii) included in the certificate.

If there is any doubt, confirmation should be sought.

The title normally applied for and registered is Absolute.

Qualified Title is rarely granted and a direction should be sought from the Deputy Registrar before same is granted. A Possessory title may be granted where the purchaser has a prior interest that has not been investigated fully.

Where such prior interest is identified as a leasehold interest, which lease is being registered as a burden, the purchaser’s title may, all other matters being satisfactory be registered as absolute.

Where registration of title is not compulsory, a possessory title is not to be registered without the consent of the applicant. See section 33(7) of the Registration of Title Act 1964.

Regarding the burdens to be registered on first registration:

Charges and Powers to Charge and Mortgages may be registered on foot of any disclosure of same in the application or searches.

Leases and Agreements for Leases may similarly be registered but we should try to have the plots identified on a map – even if same is not being used for marking on the Land Registry Map but merely filed on the application.

Where a Contract for Sale is on the title it may give rise to a caution and the applicant’s solicitor may be advised as to the availability of same.

A Deed of Further Conveyance executed before the registration is completed is a matter for the Examiner rather than the Section. Same is to be treated as a fresh application and the usual LR Form 1 of the Land Registration Rules 2012, sworn by the new applicant, lodged.

A subject Right of Way in a first registration application is a burden which affects without registration by virtue of section 72 of the Registration of Title Act 1964.

A Court Order is a registerable burden, see section 69(1)(h) of the Registration of Title Act 1964.

Regarding the equitable deposit of Title Deeds:

Where on an application for first registration, it is disclosed that the title documents were held by a Bank on equitable deposit, the matter is to be clarified if needs be by explanation of possibility of termination of lien on documents once registration is completed.

The following may be requisitioned:

a release of the lien by the Bank – particularly where the deeds are lodged by the Bank or it’s solicitor to facilitate the applicant.

Regarding First Registration Applications made under Order of the Court:

It is to be noted that section 21 of the Registration of Title Act 1964 and Rule 95 of the Land Registration Rules 2012 relate to registered land only.

Where a court order is lodged, relating to unregistered land declaring that the applicant is entitled to an estate in fee simple free from encumbrances or directing the Authority to register the applicant as full owner etc. the solicitor is to be informed that the court order in respect of unregistered land does not come within section 21 of the Act and that an application in LR Forms 1 and 16 of the Land Registration Rules 2012 together with the title documents (including the court order) may be lodged.

Regarding application by Companies:

Where the applicant for first registration is a company the Memorandum and Articles of Association are to inspected for power to acquire and sell the property and to affix the seal.

2. Applications for First Registration of a Freehold Title based on Adverse Possession

Such applications shall be set up in the Dealing Section and passed to an Examiner of Title for attention.

As the title shown will be based on adverse possession, the provisions of Practice Direction on Adverse Possession are to be applied mutatis mutandis by the Examiners.

Such applications are made on affidavit in LR Form 5 of the Land Registration Rules 2012. Paragraph 2 of same requires lodgment of the necessary proofs establishing and corroborating the applicant’s claim, as set out below.

Normally, the title, if based on possession may safely commence not less than 30 years prior to the date of the application without regard to the proposition that one should obtain the clearest possible statement of the date on which and the circumstances in which possession was taken. The attitude of the Court in re Peter Richardson 69 I.L.T.R. 252 is to be adopted where applicable.

However, in all applications for first registration of freehold title based on possession the Examiner should be satisfied that the title acquired is, in fact, freehold. In this regard see Registered Conveyancing (Curtis -v Ruoff) 2nd Edition P.738.

2.1 Title to be shown It must be shown that the title acquired by the applicant(s) is an unencumbered fee simple rather than a lesser interest for example an interest under a long lease or a limited freehold. If it appears that the landlord’s estate was the subject of a settlement it should be pointed out to the solicitor that the Statute of Limitations do not run against a remainderman until the remainderman’s right of action accrues and that therefore the most the applicant could have acquired is an estate pur autre vie for the life of such life tenant, that the applicant has accordingly failed to show that s/he has acquired the freehold and that the application should be withdrawn. Following on from the commencement of Part 2 of the Land and Conveyancing Law Reform Act 2009, where a life estate is created in freehold land a trust will come into operation under Part 4 of that Act and the freehold estate will be held by the trustees. Any fee simple remainder in reversion will be held under a trust and will be equitable interests only.

It should be noted that, where details of the owners whose title is claimed to be barred is not forthcoming a minimum of 30 years possession is required to establish title, since any of such owners might be a person under disability

The best evidence of such title is a deduction from a documentary title for a statutory period of 15 years commencing with a good root of title where the applicant shows:

1. the identity of the person who was entitled to the property at the date of dispossession.

2. the nature of that person’s interest at the date of such dispossession i.e. evidence to establish that the interest was freehold and not leasehold

3. sufficient actions of dominion to show that the possession was adverse.

See paragraph 13.81 of Irish Conveyancing Law by J.C.W. Wylie.

Generally this is rarely furnished and in such applications particularly in rural areas where the matter of pyramid title does not arise, sufficient proofs (as set out below) of unequivocal acts of ownership, of user and enjoyment and dealing with the property over a long period must be lodged in order to show a reasonable presumption of an absolute title in fee simple. Because of the possibility of property being held under a pyramid title caution is to be exercised where the application property is located in a town or village and extreme caution to be exercised where the property is located in a city.

2.2 Proofs of Devolution of Title to Applicant(s) It must be established by the applicant(s) by way of lodgment of the necessary proofs that the application property has devolved on him/her. Where the applicant claims in succession to others s/he must show who they were, how they acquired their interests and how their interests devolved to the applicant. All deeds, probates, assents, unproved wills, etc must be lodged and full details provided of next of kin, heir at law (if relevant) and relicts of persons who died intestate or whose wills are unproved. Deaths should be evidenced by production of State Death Certificates.

If the applicant(s) claims to have acquired some of these interests by adverse possession the names and present addresses of those against whom the applicant claims should be furnished. The solicitor for the applicant should be referred to paragraph 2 of LR Form 5 of the Land Registration Rules 2012 and be informed, where appropriate, that the necessary enquiries must be made and proofs lodged.

2.3 Additional Proofs Enquiry should be made as to the names and addresses of persons formerly entitled to the freehold and against whom adverse possession is claimed. Solicitor to be informed that full information within the applicant’s knowledge or procurement should be provided.

The names and present addresses of the present representatives, agents, solicitors and successors of such persons, or of the previous landlord or person to whom rent has been paid in the past, should be provided.

In applications relating to rural property enquiry should be made as to the original landlords of the area prior to the Land Purchase Acts and the names and present addresses of the present successors of such landlords.

Enquiry should be made as to the names and present addresses of all persons known to the applicant, who would, but for the Statute of Limitations, have any interest in the property or be concerned with the property in any way.

Enquiry should be made as to whether the applicant or his/her predecessors ever paid any rent to any person in respect of the property. If so, when the last such payment was made. The names and present address(es) of the person(s) to whom such rent was paid and the names and present address(es) of his/her successors in title and of his/her or their solicitors or other agents acting for them in the matter should be requisitioned. Enquiry should be made as to whether rent was paid under a tenancy agreement and whether such agreement was in writing. If in writing a copy or memorial of same should be requisitioned and the solicitor requested to state the nature of the terms of the tenancy and to show that such tenancy has terminated if such was the case.

A certificate from the General Valuation records showing the occupiers and immediate lessors of the property from 1950, together with a map to which the entries on the certificate or extract may be readily related should be requisitioned. It is not generally necessary to requisition an extract from the Valuation Office Map and a letter from the General Valuation Office referring to an exhibited map and specifying the Valuation Office Lot Number usually suffices. In general, unofficial valuation office certificates are not acceptable.

Enquiry should be made as to whether the application property has been acquired by the applicant(s) or his/her predecessor(s) for use in conjunction with other property in the applicants possession. If so, the solicitor for the applicant(s) should be asked to indicate the location of such property and describe the applicant(s) title thereto. In such case , the question of “encroachment” may require to be considered by the Examiner.

The solicitor for the applicant should be asked to lodge all documents of title in the applicant’s possession or control relating to the property and to lodge an affidavit of discovery in LR Form 16 of the Land Registration Rules 2012 (if same has not been already included in the LR Form 5 affidavit).

The Searches to be directed are generally as follows :

1. A verified personal search in the Judgment Office for any lis pendens etc., for the past 5 years against the applicant(s) and against any of the applicant’s predecessors who were in possession or appear on the title during any part of the last 5 years.

2. A Common or Verified Hand Search on the Registry of Deeds, Index of Names, only, for all acts affecting the lands by the applicant(s) and each of the applicant’s predecessors, from the day prior to the date of commencement of the interest or possession of each such person to the date of registration of the disposition of the interest of such person or the last day or the year in which such person died, or the latest date. (The description of the land in such search should include the name of the Townland, Barony and County in which the land is situate and, also, any additional or alternative name by which the land has been described. All alternatives of the names of persons searched against should, also, be specified in the searches.)

The above matters to be dealt with on affidavit sworn by the applicant(s). A corroborating affidavit by a party with knowledge of the facts, for example, a neighbour, may be requisitioned in a suitable case.

On receipt of the above additional proofs, the application is to be further considered by the Examiner of Titles, who by virtue of Rule 18 of the Land Registration Rules, shall direct such searches, advertisements, notices and enquiries as may be deemed necessary.

The advertisement may appear over the name of the Authority or the individual Examiner.

The Examiner may accept what he/she considers to be a good holding title and take such indemnity as he/she may deem necessary. No evidence of title shall be called for that could not be required on a sale of the property under an open contract.

It should be remembered that covenants may affect the property. The Affidavit of Discovery under the Land Registration Rules, 1967, includes an averment that no such covenants affect the property, the subject matter of the application. This averment is to be relied on by the Examiner unless he has reason to doubt its veracity.

On the commencement of section 49 of the Land and Conveyancing Law Reform Act 2009 the rules of common law and equity relating to the enforceability of a freehold covenant are abolished (including that in Tulk v Moxhay which confined the enforceability of freehold covenant to negative covenants).

The Act also added in section 48 the definition of freehold covenent which means a covenant attaching to dominant land and servient land which has been entered into after the commencement of this Chapter. As a result the section 129 of the Act added a new burden to section 69 of the Registration of Deeds and Title Act i.e. new section 69(1)(kk) a freehold covenant is now a registrable burden.

In the rare case where a stranger to the title (not a member of the owner’s family) enters into adverse possession and applies for first registration, the Affidavit of Discovery should not be relied on to the same extent. The applicant would not necessarily have knowledge of the existence of restrictive covenants. In such cases, the Examiner should make strict inquiry regarding any possible restrictive covenant.

Such a stranger may likewise be an applicant for conversion of a registered title. In such a case however the Examiner has the benefit of the registered title.S/he must be alert to the possibility of such covenants existing. In both cases, regard should be had to Cheshires Modern Real Property ((the Edition) Page 531) et seq.

A possessory title is not offered as a matter of course and should be considered only as a last resort. Before such registration is made the effect of section 38 of the Registration of Title Act 1964 is to be pointed out to the solicitor for the applicant.

Where title is based on possession and then transferred on and submitted with a Certificate in LR Form 3 such a certificate is not appropriate in that case.

3. Application for First Registration of Leasehold Title based on documentary title

The general requirements are similar to those for freehold and are set out in Rule 16 of the Land Registration Rules 2012.

Requirements include Lodgment of affidavits in LR Form 2 of the Land Registration Rules 2012, to be made by the applicant or in the cases of a company by the Secretary or Law Agent. Generally in exceptional circumstances e.g. where the secretary is itself a company etc, the affidavit may be made by a director or an administrative officer with personal knowledge of the facts deposed and duly authorised to make the affidavit for and on behalf of the company. An averment or letter to that effect is acceptable. It may also be made by the Law Agent or Liquidator. In suitable circumstances it may also be made by the solicitor on record.

If the original Lease is missing registration may be made in its absence or in the absence of a copy thereof or a copy of the memorial thereof, if sufficient details are available from recitals in the deeds of assignment, particularly any over 15 years old. The lessor should be considered as a source of a copy (of the counterpart) of the lease.

In order to register a title as absolute, the title of the lessor (and fee simple owner) to make the lease should be sought in the first instance (See section 40(4) and section 42 of the Registration of Title Act 1964). Depending on the period of time that has elapsed it may be possible for the lessor to show the freehold title for say 15 years with a good root prior to the application and subject to the lease. Where the lessors title is that of a grantee under a fee farm grant, see if a receipt for the fee farm rent is available as evidence that the grant has not been forfeited (if indeed such a forfeiture clause is contained in the Grant).

It would appear that by virtue of section 40(4) of the Registration of Title Act 1964 which requires the title to inter alia ” the freehold estate” to be shown it may not be necessary to show the grantor’s title in a fee farm grant. ” Freehold is defined in section 3 of the Registration of Title Act 1964 as ” the full ownership of which is an estate in fee simple”. and ” fee simple” “includes estates held under fee farm grants……..”

Searches are to be made on the same basis as freehold titles. The general outside practice of searching in the Sheriffs Office need not be followed by us as in practice the Sheriff does not except in some cases seize and sell leasehold interests because although he is empowered to seize and sell the debtors interest, unless he is in actual occupation there cannot be sufficient information with regard to rights of persons in possession other than the defendant to enable the Court to make an order for possession.

See the articles in ILTSJ 1909 Vol 63 p. 221/222 – Writs of Execution in the hands of the Sheriff and ILTSJ 1944 Vol. 76 p.275,276, Seizure of terms of years and subsequent sale by the Sheriff.

Burden rights of way created in leases are not as a matter of practice registered on a leasehold folio – they being considered obligations and liabilities incident to the registered interest. (Section 44(3)(c) and section 72(1)(h) of the Registration of Title Act 1964.)

4. Application for First Registration of Leasehold Title based on Adverse Possession

In the most recent Irish case in this matter Perry v Woodfarm Homes Limited 1975 I.R. page 104 Mr Justice Griffin was of the view that it is not possible to acquire a leasehold title under the Statute of Limitations and that all that is acquired is the right to remain in possession during the remainder of the term, an interest which is not capable of registration. The squatter does not get a statutory conveyance or assignment of the lessee’s interest.

See McAllister’s “Registration of Title in Ireland” Pages 34 and 35 and the judgments in Perry v Woodfarm Homes Limited.

However the position has now changed following the introduction of section 50 of the Registration of Deeds and Title Act 2006 which amends the definition of a “leasehold interest” in section 3 of the Registration of Title Act 1964 to read “the right or interest of a person who has barred under the Statute of Limitations 1957, the right of action of a person entitled to such leasehold interest”. This amendment brings adverse possession applications in relation to unregistered leasehold interests into line with adverse possession applications in relation to registered land pursuant to section 49 of the Registration of Title Act and was brought into operation on the 26th of May 2006. Prior to this amendment, it had been established as stated above in the most recent Irish case in this matter Perry v Woodfarm Homes Limited 1975 I.R. Therefore as and from the 26th of May 2006, applications for first registration based upon adverse possession of an unregistered leasehold interest can now be considered by the Authority on lodgement of the necessary proofs and after the usual enquiries and notices. The applicant, if successful, can then be registered as owner of a leasehold folio. A copy of the lease should be lodged.

The practice to be followed in such applications is as follows:-

1. Consider registering him/her with a good leasehold title, after notice to the other next of kin and all usual notice parties.

2. Consider asking for the consent of the lessor or at best that s/he has no objections to the registration on the leasehold register.

3. Ask for evidence of the lessor’s entitlement to the rent except where it is the original lessor (e.g. Corporation or Local Authority).

5. Ground Rents Vesting Certificates

The fee simple title to be shown in arbitration cases is to commence with the Vesting Certificate and title is to be traced from there in the normal way but subject to what is set out below.

The fee simple title in consent cases is to commence with the Vesting Certificate provided the other documents lodged or the Folios do not cast any doubt on the title. See below.

The leasehold title should be investigated in all cases to establish the lessee/applicant’s title and to ascertain any burdens or charges to be registered on the new freehold folio.

If doubt is cast on the Vesting Certificate e.g. where on examination of the freehold folio it is disclosed that the plot is the subject of a head lease and a sub-lease, the lessees interest under the sub-lease being in the applicant, the consenting party in the Vesting Certificate being the fee simple owner and there being no reference to or evidence of the title of the same consenting party to the lessees interest under the head lease – consider enquiring from the Ground Rents Section as to the information if any disclosed to them and in a suitable case referring the matter to the said applicant solicitor and informing the Ground Rents Section.

Where the documents now lodged disclose an interest that may not have been accounted for by the parties who consented to the issue of the vesting certificate e.g. where the lessor’s title is traced under a Lease or under a fee farm grant (the fee farm rent of which is being paid by some other person in indemnification of the lessor) – consider enquiring from the Ground Rents section to ascertain what information is available to them. If no information is forthcoming the Examiner may in his/her discretion take whatever action s/he considers appropriate.

Where the documents disclose that the applicant(s) is/are not the beneficial owner(s) of the leasehold interest at the time of vesting i.e where the person named in the vesting certificate was not the owner of the lessees interest when the fee simple was being vested for example where s/he died before vesting – the certificate is void on the face of it but registration may be proceeded with in a suitable case e.g. where title is being traced to a successor under a Will or intestacy or a purchaser from the personal representative.

Where the leasehold interest was held by two or more persons (as joint tenant or tenants in common) and the Vesting Certificate is in the name of one only – consider having the certificate amended, with the consent of all of the parties or their solicitor(s) and in default of such consent refuse registration on the grounds that the certificate may be defective.

Where the leasehold interest was held by one person and the vesting certificate issued in the name of two (as joint tenants) – consider:

1. having the certificate amended with the consent of other party;

2. requiring the leasehold interest be transferred to the joint names.

Where the Vesting Certificate is the names of two or more persons jointly without words of division and the leasehold interest was held by the same parties as tenants in common or vice versa, point out to the Solicitors the discrepancy and suggest that the Vesting Certificate should reflect the entitlement under the Act i.e. in the same ownership as the leasehold interest.

Where the person named in the Vesting Certificate is subsequently found to have been a personal representative or trustee, consider having the Vesting Certificate amended to show this fact.

Where the person named in the Vesting Certificate is found to have been a life tenant or tenant in remainder, consider having the vesting certificate amended to have the fee simple vested in the trustees of the settlement (if there are any such) or in the name of the life tenant with remainder to the remainderman, or getting the appropriate consents.

Where the person named in the Vesting Certificate is claiming to have acquired the leasehold interest by long possession refer to section 50 of the Registration of Title Act 2006. In consent cases consider if the Landlord’s consent to the vesting may suffice on the basis of estoppel.

Where the premises are now ascertained to have been or may have been outside the scope of Part 111 of the Landlord and Tenant (Ground Rents) (No2) Act of 1978 consider calling for a deed of transfer of the fee simple in lieu of the Vesting Certificate, or referring the matter to court under section 19(2) of the Registration of Title Act 1964.

Regarding Merger:

1. If the two interests, freehold and leasehold, are unregistered, merger is effected on the issue of the Vesting Certificate.

2. If both titles are registered, merger can take place with effect from the date of lodgement of the application.

3. If one only title is registered, merger can take place with effect from the date of settling of the dealing.

Where the property has been sold on, prior to lodgement of the documents of registration, both interests should be dealt with. In suitable cases it may be accepted that a conveyance or transfer of the fee simple together with the handing over of possession and the leasehold title documents, operates as an assignment of the leasehold interest also e.g. where the applicant was not a party to the first such conveyance and/or transfer but acquired title thereafter. section 76 of the Land and Conveyancing Law Reform Act 2009 re-enacts the substance of section 63 of the Conveyancing Act 1881 i.e. the all estates clause. If the applicant was a party to the transaction ask him/her to have the conveyance amended or rectified.

Where merger is not being effected i.e. the fee simple has been acquired other than by way of vesting certificate or transfer under the Ground Rents Acts and the lease is being registered as a burden on the new freehold folio, it is not necessary to ascertain if any charges on the leasehold interest should be registered on the freehold folio (section 29 of the Landlord and Tenant (Ground Rents )(No 2) Act of 1978). The purpose of the said Section was to preserve the security of any charge on a previous(sic) leasehold interest. If the leasehold interest is being continued, the charge thereon is not being adversely affected by the acquisition of the fee simple.

Frank Treacy,

Deputy Registrar

27 November 2009.

Updated 01 February 2013