NAMA Applications for Registration

1.1 Scope of Practice Direction (PD) This PD sets down the practices and procedures for the registration of NAMA, or its entity National Asset Loan Management Limited (NALML), as owner on the subsidiary register of acquired registered charges. The PD also sets down how the Property Registration Authority deals with other NAMA acquired interests and dispositions by NAMA, or receivers appointed by NAMA, of acquired charges or property affected by such charges.

1.2 Sections of the Act and Rules applicable

• Section 8(b)(ii) of the Registration of Title Act 1964
• Section 62 of the Registration of Title Act 1964 as amended
• Section 69(1)(s) of the Registration of Title Act 1964
• Rules 107, 186 and 189 of the Land Registration Rules 2012

1.3 Other legislation cited

• National Asset Management Agency Act 2009
• Land and Conveyancing Law Reform Act 2009

2.1 General

Such applications are for registration of the ownership of registered charges in the subsidiary register. Section 8(b)(ii) of the Registration of Title Act 1964 and Rule 186(2) of the Land Registration Rules 2012 refers. The charges will have been acquired, from financial institutions, which have been designated by the Minister for Finance as Participating Institutions (P.I.s) under Section 67 of the National Asset Management Agency Act 2009.

A Project Team based in the Chancery Street office has been established to process these applications. A subsidiary folio will be opened on a per borrower, per lending institution, per County basis.

Registration is effected on lodgement of a sealed certificate, made pursuant to section 108 of the National Asset Management Agency Act 2009, appended to a Schedule detailing the acquired charges. The lodging party in each case is “National Asset Management Agency” and the dealing type is “NAMA Acquisition Order”. The applicant and the entity to be registered on the subsidiary register is “National Asset Loan Management Limited” [NALML].

2.2 Part 1A of subsidiary folio:

Details of the registered charge are set out in Part 1 of the folio of the subsidiary register. The description in Part 1 will include the identity of the lands affected and a note referring to the borrower’s folio. The official notes column will contain the Instrument No. under which the charge was originally registered on the borrower’s folio.

A note will be entered on the folio on which the charge is registered outlining the fact that the ownership of the charge has been transferred to the subsidiary register. This entry will include the subsidiary folio number and the relevant part 1A entry number thereon.

A new seed-point coloured blue has been developed for the geo-enhanced subsidiary register. Where practical, the boundaries of this seed-point will be linked to the boundaries of the borrower’s folio. This may not be possible in cases where partial discharges are pending or where multi-storey properties have not been mapped using the MSB tree system.

2.3 Part 2 of subsidiary folio:

The registered owner of the subsidiary folio will be National Asset Loan Management Limited (NALML). The date of registration will be the date that NALML acquired the interest in the relevant charges. This will be evidenced by the lodgement of Certificates under Section 108 of the National Asset Management Agency Act 2009. (NAMA Act 2009).

The registration of the ownership of rights, other than incorporeal hereditaments held in gross, is governed by Rule 189 of the Land Registration Rules 2012. It should be noted, pursuant to that Rule that “owner” is substituted for “full owner”. Furthermore, in view of Rule 189(d) and 189(e); no reference should be made as to the title type; i.e. title absolute, qualified or possessory note should NOT be entered.

2.4 Dealings Pending on folios affected by NAMA acquisitions:

In cases where there are dealings pending, which are preventing the completion of the registration of the acquisition order, every effort is to be made to complete the pending registration.

Where this is not possible, the NAMA dealing will be cross referenced with the pending dealing and the subsidiary folio added to the pending dealing. Where a pending dealing, in which NAMA have an interest, is treated as abandoned, withdrawn or rejected, the Project Team is to be informed.

In view of the definitions in Section 4 of the National Asset Management Act 2009 and Rule 186(c) of the Land Registration Rules 2012, registration of a judgment mortgage, which has been acquired by NAMA, may proceed on the relevant folio of the subsidiary register. The description of the property in Part 1A of the subsidiary folio will be suitably modified. If in doubt as to the description to be entered in Part 1A of the subsidiary folio, a direction should be sought from the Divisional Manager for referral to the Deputy Registrar where necessary.

The original registration of the judgment mortgage as a burden will have been governed by the law in force at the time of lodgement of the affidavit of judgment. Therefore, if the registration of the judgment mortgage as a burden is pre the Land and Conveyancing Law Reform Act 2009, the amount will be shown. If post 2009 Act, the amount will not appear. Part 1A of the subsidiary folio, which is the description of the property, in this case the judgment mortgage, should reflect the burden as it appears on the affected folio. Therefore, if the amount is shown in the burden entry, it should be shown on Part 1A of the subsidiary folio. Likewise, if not shown on affected folio, it should not appear on Part 1A of the subsidiary folio. The acquisition date governs only the date of registration of the ownership of the judgment mortgage. As stated above, the creation of the judgment mortgage is governed by the land and conveyancing law in force at date of lodgement of the affidavit.

At the foot of the judgment mortgage burden entries, the appropriate note is “The title to this judgment mortgage is registered on Folio —S.” [Date and Instrument].

NAMA may also acquire an interest in a judgment, which has not yet been registered as a judgment mortgage. In such cases, an officer appointed by NAMA swears the affidavit to convert the judgment to a judgment mortgage and effect registration thereof as a burden. The entry of the judgment mortgage will be registered by reference to the judgment creditor who obtained the original judgment. If a Section 108 Certificate is subsequently lodged the ownership may be registered in NALML on the subsidiary register.

Subject to the above, all queries relating to NAMA matters are to be passed to the Divisional Manager in the first instance for referral to the Deputy Registrar where necessary.

NAMA or its entity, (nalml), may acquire unregistered rights that are protected by caution or inhibition. A caution is merely an entry requiring that a party be notified of an application to register a disposition of property that might affect them. An inhibition may restrict Dealings with the property until the happening of a certain event, or a prior consent is obtained or until after notice has been served. A caution or inhibition is not of itself a legal right or interest capable of registration on the subsidiary register. The only registration, which we can make in these circumstances, is to amend the caution/inhibition entry on the affected folio to substitute NALML for the Participating Institution as the notice or consenting party.

There is no requirement to serve any notice on the Participating Institution of a change of notice/consenting party, provided its name is not removed from the entry altogether. The simplest way to proceed is to leave the original entry as it stands and add the following note to the caution/inhibition entry:

The right of [Participating Institution] in to or over [part of] the property described herein having been acquired by National Asset Loan Management Limited, prior notice of any Dealing by the registered owners affecting the [part of the] property [shown as Plan —-] is to be served on National Asset Loan Management Limited of [postal address] [Date/Instrument].

OR

The right of [Participating Institution] in to or over [part of] the property described herein having been acquired by National Asset Loan Management Limited, no registration of any dealing with the said property as herein inhibited is to be made without the consent of National Asset Loan Management Limited of [postal address] [Date/Instrument].

Property registered on the subsidiary register may be transferred in like manner as property registered on the freehold or leasehold registers. The Deed of Transfer should be in the prescribed form.

If a Deed of Transfer is lodged, purporting to transfer NALML’s interest to a third party, and it is not evident from the folio or map that they have actually acquired the interest, a check should be made with the NAMA Project Team to see if the application for registration of NALML on the subsidiary register has been lodged. In some cases, NAMA will issue the Section 108 Certificate directly to the solicitor for the purchasers. The lodging party should be requested to lodge such Certificate.

Having acquired an interest in a registered charge, NALML as the registered owner or party entitled to be registered as owner of such charge, may obtain possession of and transfer all or part of the property, affected by such charge, as the mortgagee in possession pursuant to Section 62 of the Registration of Title Act 1964, as amended by the Land and Conveyancing Law Reform Act 2009. The Practice Direction on Transfers of Registered Land, by the owner of a charge in exercise of power of sale, should be followed in that regard. As such a transfer operates to extinguish the charge in question, as well as burdens ranking after it, the mapping on the subsidiary folio must be updated.

NAMA may also appoint a receiver. The receiver is the attorney of the registered owner of the property affected by the charge. Therefore, a transfer by a receiver does not overreach the interests of owners of burdens ranking after the charge. In the absence of appropriate discharges, these remain on title.

The receiver may be appointed under the terms of the Deed of Mortgage/Charge. However, NAMA have power under Section 147 of the National Asset Management Agency Act 2009 to appoint a statutory receiver. If it is stated, by or on behalf of NAMA or NALML, that the receiver is a statutory receiver, no further evidence of appointment is required. However, the usual evidence of the appointment of receivers, other than statutory receivers, should be lodged.

It should be noted that where the chargor/mortgagor is a company, a statutory receiver, appointed under Section 147, may use the seal of the company. The statutory receiver is not subject to any restrictions on the exercise of the powers of a receiver under the Conveyancing Act 1881 or the Land and Conveyancing Law Reform Act 2009.

Crystallised charges on registered land arise on the appointment of a receiver under a debenture creating a floating charge. Companies may create floating charges over all their assets including lands. Such a charge cannot be registered until it becomes a fixed charge. The powers of a receiver, appointed under a floating charge, cannot be exercised until such charge is registered as a burden. When the receiver is appointed, the floating charge is said to crystallise and then becomes capable of registration. (The judgment of D’Arcy J. in the Mono Food Equipment Ltd. Case, delivered on 21st May 1986, being a Section 19(2) reference, refers). A crystallised charge is registerable under Section 69(1)(s) of the 1964 Act but is not an instrument of charge within the meaning of Section 62(2) of the 1964 Act. The registration of the crystallised charge as a burden is governed by Rule 107 of the Land Registration Rules 2012. The charge is to be entered as follows:

“Crystallised charge arising on the appointment of of as receiver of by Deed of Appointment dated made between the National Asset Management Agency of the one part and of the other part pursuant to a Debenture dated made between of the one part and of the other part which was acquired by a NAMA Group Entity pursuant to the National Asset Management Agency Act 2009”.

Officers drafting this entry should be aware that it is included in “Charges” templates on the ITRIS system.

7.1 Form of Release/Discharge

The Forms of Discharge/Partial Discharge, being lodged by NAMA, on behalf of its entity National Asset Loan Management Limited, have been agreed with NAMA. A certificate, pursuant to Section 108 of the National Asset Management Agency Act 2009, is included in the Discharge.

Where the title to the charge has been registered on the subsidiary register, there will be a cross reference note to that effect on the borrower’s Folio. The Registry Map will also reflect that registration.

Where the title of National Asset Loan Management Limited has not been lodged, or is pending registration, the charge has still effectively been acquired and no query should be raised on the ownership of the charge or the entitlement of National Asset Loan Management Limited to execute the discharge. The inclusion of the Section 108 certificate in the body of the Discharge, to the effect that the subject charge is an acquired asset, is conclusive.

These Forms of Discharge should generally not be queried and in particular Acquisition Schedules should not be called for.

7.2 Procedures for the registration of Discharges by NALML:

The procedures will vary, depending on whether the discharge is full or partial and whether or not the property charged, or the property being released from the charge, is multi-storey.

7.3 Full Discharge:

The entry of the charge, as a burden on the borrower’s folio, should be cancelled in the usual manner.

In addition, the relevant mapping references as set out in Part 1A of the subsidiary folio should be cleaned from Dmaps. If this is the only charge, registered on the relevant subsidiary folio, then that folio should be closed. The Part 2 closed folio entry should read:

[Date and Instrument]. The charge described at Part 1A having been discharged, this Folio is closed.

Otherwise, if the full discharge relates only to one entry of a number on Part 1A of the subsidiary folio, the following note should be added under the relevant property in Part 1A:

The entry of the above charge on the register has been cancelled.

7.4 Partial Discharges:

The following procedures describe the manner in which partial discharges should be dealt with.

If the property charged AND partially discharged is NOT multi-storey:

A blue seedpoint, plan number and blue marking will appear on the Registry Map.

The extent of the interest described on the subsidiary folio is reduced by the partial discharge. The blue boundaries on Dmaps should be amended accordingly.

In addition to any appropriate entry being made on Part 3 of the chargor’s Folio, the following should be made as a property note Part 1A of the subsidiary folio:

Part of the property shown as Plan XXXX coloured (RED/GREEN/PURPLE) on Registry Map is discharged from the charge described herein [Date/Instrument].

In cases where there are likely to be multiple discharges/dealings on the charged Folio, omnibus entries on affected folios may be used. See below on multi-storey cases.

If the property partially discharged IS multi-storey:

A blue locator/super-seedpoint will appear on the Registry Map. However, the extent of the property is not marked by blue boundaries. In these cases, no amendment is necessary on Dmaps.

In smaller developments, (10 or less units) entries should be made on the relevant folios as set out above. Where there are likely to be multiple partial discharges/dealings on the charged folio, an omnibus entry should be inserted in Part 3 of the charged folio.

In addition to the appropriate entry being made on Part 3 of the chargor’s folio, the following should be entered as a Property Note on Part 1A of the subsidiary folio under the appropriate charge entry:

Parts of the property described at entry no. XX Part 3 of Folio ——-, being the entry therein of partial discharges, are discharged from the charge described herein [Date/Instrument].

In cases where multiple partial discharges/dealings have already been registered on the charged folio, which should now be noted on the subsidiary folio, the following should be entered as a Property Note on Part 1A of the subsidiary folio under the appropriate charge entry:

Parts of the property more particularly described in Part 3 of Folio ——- are discharged from the charge described herein.

7.5 Full or Partial releases of charges by the Participating Institutions (PI’s)

Full or Partial releases of charges by the Participating Institutions (PI’s), which are dated prior to the acquisition Certificates may be accepted. Releases executed by the PI’S after the acquisition date should be rejected.

If any queries arise in relation to acquisition Certificates, or other NAMA related matters, the matter can be e-mailed to the “NAMA Project Group” mailbox.