Transfer Orders under the Housing Acts 1966-2014

1. Definitions

2. Relevant legislation

3. Stamp duty

4. Prescribed forms of transfer orders

5. Transfer orders affecting unregistered property

6. Documents required for registration

7. Registration procedure

8. Post registration dealings

9. Cancellation of prohibition notes

1. DEFINITIONS:

“The Act of 1966” means the Housing Act 1966.

“The Act of 1978” means the Landlord and Tenant (Ground Rents) Act 1978.

“The Act of 1978 (No.2)” means the Landlord and Tenant (Ground Rents) No.2 Act 1978.

“The 1978 Regulations” means the Housing Authorities (Borrowing And Management) Regulations, 1974 (Amendment) Regulations, 1978 (S.I. 270 of 1978).

“The Act of 1992” means the Housing (Miscellaneous Provisions) Act, 1992.

“The Act of 1999” means the Stamp Duties Consolidation Act 1999.

“The Act of 2009” means the Housing (Miscellaneous Provisions) Act 2009.

“The 2010 Regulations” means Housing (Incremental Purchase) Regulations 2010 (S.I. 252 of 2010.

“2012 Rules” means the Land Registration Rules 2012 (S.I. 483 of 2012).

“The Act of 2014” means the Housing (Miscellaneous Provisions) Act 2014.

“The 2015 Regulations” means the Housing (Sale of Local Authority Houses) Regulations 2015 (S.I. 484 of 2015 refers).

2. RELEVANT LEGISLATION:

Section 90 of the Housing Act 1966:

Under Section 90 of the Act of 1966, a Housing Authority may sell or lease certain dwellings by way of a Transfer Order in the prescribed form and subject to such terms and conditions including special conditions (if any) as may be specified therein.

Section 4 of the Act of 1978 (which commenced on 16th May 1978) provides that the Housing Authority, in exercising its power under the Act of 1966, can only vest the fee simple interest in the dwelling (does not include a separate and self-contained flat in premises divided into two or more such flats) subject to such terms and conditions as may be specified in the Transfer Order. In addition to such terms and conditions (if any), every Transfer Order shall include the following special conditions which will be binding upon the Purchasers and their successors for a period of 25 years from the date of vesting:

1. The dwelling shall, unless the housing authority otherwise allow, be occupied as a normal place of residence by the purchaser or the purchaser’s successor in title or by a member of the purchaser’s family or the family of his successor in title.

2. The dwelling or any part thereof shall not, without the consent of the housing authority, be mortgaged, charged or alienated otherwise than by devise or operation of law.

Further amendments to Section 90 of the Act of 1966 took place by virtue of Section 26(1) of the Act of 1992 and Sections 31 and 32 of the Act of 2014.

Section 26(1) of the Landlord and Tenant (No.2) Act 1978:

Section 26(1) of the Act of 1978 (No.2) provides “Where a housing authority have leased to a tenant a dwelling (excludes a separate and self-contained flat in premises divided into two or more such flats) provided by them under statutory authority, the tenant shall be entitled to acquire from them the fee simple in the dwelling subject to the provisions of this section. The vesting of the fee simple interest will be by way of a Transfer Order under Section 90 of the Act of 1966.

Section 45 of the Housing (Miscellaneous Provisions) Act 2009:

Section 45 of the Act of 2009 provides that a housing authority or an approved body may enter into an arrangement with an eligible household whereby, in consideration of the receipt by the housing authority or approved body of the purchase money, the housing authority or  approved body may sell a dwelling, in the state of repair and condition existing on the date of sale, to the eligible household, by means of a transfer order, in the prescribed form, which shall be expressed and shall operate to vest, on the date specified in the order, the interest specified in the order, in accordance with the terms and conditions specified in Section 45(2) and the terms and conditions of the charging order, made under Section 46.

Section 25(1) of the Housing (Miscellaneous Provisions) Act 2014:

Section 25(1) of the Act of 2014 (which commenced on 1st January 2016) provides that a Housing Authority may, in consideration of the receipt of the purchase money, sell a house to the tenant of the house by means of a Transfer Order, in the prescribed form, in accordance with the terms and conditions specified in Section 25(2) and the terms and conditions of a charging order.

In this regard, (a) “tenant” means any person to whom a housing authority has let a house under the Housing Acts 1966 to 2014 or Part V of the Planning and Development Act 2000; and (b) the purchase of a house does not apply to a separate and self-contained dwelling in a building that is divided into a dwelling and one or more dwellings or other properties or both, and requires arrangements for the regular upkeep and management of all or any part of the common areas, structures, works or services other than by a person who could, but for this subsection, be the purchaser.

In addition to executing a Transfer Order, the Housing Authority also had to execute a Charging Order pursuant to Section 26 of the Act of 2014 charging the property in accordance with Section 26 as aforesaid (see further the Practice Direction on Charging Orders under the Housing and Planning and Development Acts).

3. STAMP DUTY:

Section 106B of the Act of 1999 as inserted by Section 64 of the Finance Act 2011 provides “Stamp duty on any instrument, executed on or after 1st April 2011, giving effect to the conveyance, transfer or lease of a house, building or land by a housing authority chargeable, as specified in Schedule 1, shall not exceed €100”. In effect, this means that Transfer Orders dated on or after 1st April 2011 are liable to stamp duty up to a maximum of €100. Such a Transfer Order should, therefore, either be presented to the Revenue Commissioners for adjudication or be accompanied by an e-Stamp Certificate.

4. PRESCRIBED FORMS OF TRANSFER ORDERS:

5. TRANSFER ORDERS AFFECTING UNREGISTERED PROPERTY:

Since the Transfer Order operates to vest the interest on the date specified in the order, an application for first registration is not required. The date of registration of all cases shall be the date of vesting of the property in the applicant.

6. DOCUMENTS REQUIRED FOR REGISTRATION:

1. Completed Form 17 together with fees of €130. Additional fees are not payable, where the Transfer Order also incorporates the Charging Order.

2. Original Transfer Order in the prescribed form duly executed by the Local Authority. The tenant is not required to execute the Order.

3. An e-stamp Certificate, where the Transfer Order is dated on or after 1st April 2011.

4. An Original ITM or Land Registry Compliant Map with the property outlined in red thereon or, where the property is a flat, a copy of the approved Multi-Storey Maps with the flat outlined in red thereon. A map may not be required where the property comprises all of an existing Folio.

5. Any Charges which affect the property together with fees of €175 to register the charge.

6. Applications pursuant to Section 26(1) of the Act of 1978 (No.2):

       1. Original Lease or Leasehold Transfer Order, unless same is already held in the Land Registry.

       2. Where there is no leasehold Folio, an unambiguous certificate from the Local Authority that the property is not affected by any Mortgages or Charges which require registration against the fee simple interest.

7. REGISTRATION PROCEDURE:

General Registration Procedure:

All such applications are processed in the Dealings Sections.

The application is to be set-up in line with current practice and any issues brought to the attention of the lodging party.

When the documents are in order, the application is to be sent to the Mapping Branch with a direction as to whether a freehold or a leasehold Folio is to be opened. Where the Tenant is already the registered owner of a leasehold interest in the property, a direction is also to be given to clean this interest from dMaps.

Applications pursuant to Section 90 of the Act of 1966:

Transfer Orders vesting a dwelling (other than a flat, as aforesaid) must vest the fee simple interest in the tenant, whereas Transfer Orders, generally vest a dwelling which comprises a flat (as aforesaid) in the applicant under a leasehold interest. Consequently, a new freehold or leasehold folio, as appropriate, in the name of the tenant is to be opened for the property vested under the Transfer Order.

Entries (if any) to be registered on Part 3 of the new folio:

1. Where the Transfer Order imposes special conditions against alienation etc, register as: The property is subject to the provisions specified in Section 90(12) of the Housing Act 1966, as amended against alienation, mortgaging and charging without the consent of the [Housing Authority].

OR

1. Where the Transfer Order imposes terms and conditions but no special conditions, register as: The property is subject to the conditions specified in Instrument No………..

OR

1. Where the Transfer Order imposes both terms and conditions and special conditions, register as: The property is subject to the provisions specified in Section 90(12) of the Housing Act 1966, as amended against alienation, mortgaging and charging without the consent of the [Housing Authority] and to the conditions specified in Instrument No………..

2. In some cases, the Transfer Order may also contain a charge which becomes payable in the event that the property is sold within a certain period of time. Such a charge is registerable as: Contingent charge for such sums as specified in Instrument No……….. [Local Authority] is owner of this charge.

3. Where the Transfer Order being registered creates a leasehold interest, same is to be registered as a burden on the Housing Authority’s Folio, if same is registered.

Applications pursuant to Section 26(1) of the Act of 1978 (No.2):

Where a leasehold Folio in the name of the applicant exists, same is to be closed with a note of its merger entered on part 2 thereof.

A new freehold folio, in the name of the tenant, is to be opened for the property vested under the Transfer Order.

Under the official notes on Part 1 of the Folio add “Ground Rents Acts”.

Entries (if any) to be registered on Part 3 of the new folio:

1. The burdens as set out in “applications pursuant to Section 90 of the Act of 1966”, as aforesaid may also be applicable in applications pursuant to Section 26(1).

1. Any un-cancelled charges, judgment mortgages or burdens (such as a right of residence) appearing on an existing leasehold Folio in the name of the applicant (if any).

Applications pursuant to Section 45 of the Act of 2009:

The Transfer Order should be carefully inspected to ascertain the nature of the title vested in the applicant(s) and a new freehold or leasehold folio (as appropriate) is to be opened in the name of the tenant. The following entries are to be registered as burdens on Part 3 of the new folio:

1. The Section 45(2) Prohibition Note Entry: The property is subject to the provisions specified in Section 45(2) of the Housing (Miscellaneous Provisions) Act 2009 against the sale, assignment, letting or sub-letting or otherwise disposal of or mortgage, charge or alienation, otherwise than by devise or operation of law without the prior written consent of (Local Authority/approved body) and to the conditions specified in Instrument No………..

2. The Section 46 Charging Order: Charge for such sums as may become payable under the terms of Instrument No……….. [Local Authority/approved body] is owner of this charge.

Applicants pursuant to Section 25(1) of the Act of 2014:

A new freehold folio, in the name of the tenant, is to be opened for the property vested under the Transfer Order.

Entries to be registered on Part 3 of the new folio:

1. The Section 25(2) Prohibition Note Entry: The property is subject to the provisions specified in Section 25(2) of the Housing (Miscellaneous Provisions) Act 2014 against the sale, assignment, letting or sub-letting or otherwise disposal of or mortgage, charge or alienation, otherwise than by devise or operation of law  without the prior written consent of (Local Authority) and to the conditions specified in Instrument No………..

2. The Section 26 Charging Order: Charge for such sums as may become payable under the terms of Instrument No……….. [Local Authority] is owner of this charge.

Miscellaneous:

All new folios will be opened with an Absolute Title.

The date of the registration of the Transfer Order and any Charges contained within the Transfer Order (such as a Contingent Charge or Section 26 Charging Order) is the date of vesting of the property in the tenant.

Other charges (such as a charge by a Bank), affecting the property should be registered after the entries, as specified above. The date of registration of such charges is the date of lodgement.

Where the Housing Authority is not the registered owner of the freehold Folio, registration is to proceed and notice is to be served on such registered owner, post registration.

8. POST REGISTRATION DEALINGS:

A transfer or charge of the property the subject of a Transfer Order is void unless the prior consent of the relevant Housing Authority was obtained. Such consent may be given subsequently to the execution of the transfer or mortgage and it will have retrospective effect if the Authority so directs (Section 90)(12(c) of the Act of 1966, as amended refers).

9. CANCELLATION OF PROHIBITION NOTES:

Pursuant to Section 90 of the Housing Act 1966:

The portion of the Section 90 Prohibition Note relating to special conditions may be cancelled from the folio on lodgement of the following. Note, however, that the terms and conditions (if any) are to remain on the Folio:

• On a sale, where the Housing Authority consents or has previously given its consent.

OR

• Where a Mortgagee has exercised its Power of Sale under a mortgage.

OR

• Where the relevant Housing Authority has become the registered owner of the Folio (in which cases the entire entry is to be cancelled).

OR

• On application by the registered owner or their Solicitor for its cancellation on the basis that the 25 years has expired and no part of the original purchase money remains outstanding. Where any Housing Authority charges still appear on the Folio, the application should be accompanied by an application to cancel all such charges.

Pursuant to Section 25(2) of the Act of 2014:

There is no provision in the Act of 2014 for the cancellation or amendment of the Section 25(2) Prohibition Note. Consequently, the note is only to be cancelled on an application by the Housing Authority.

John Murphy

Deputy Registrar

10 March 2016

Updated 03 September 2019 to refer to Section 45 of the Housing (Miscellaneous Provisions) Act 2009.