Abstract
This chapter examines two risk categories; the registration gap and the formalities for registration. Thus it explores risk arising before registration of the transfer of Greenacre and Whiteacre. The risk to those participants who seek registration on foot of the idealised transactions is considered. These participants are the transferee B, donee Y and acquisition lender C.
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Notes
- 1.
Harpum (2004), p. 6.
- 2.
Harpum (2004), p. 6.
- 3.
The contract deposit is held pending completion.
- 4.
Cooke notes that where priority searches are used, the registered title is frozen and a purchaser can proceed with confidence as to the state of the register however overriding interests are not frozen and the danger of them coming into being during the registration gap is a “significant hazard”. See Cooke (2003), p. 289.
- 5.
Harpum (2004), p. 6.
- 6.
Harpum (2004), p. 6.
- 7.
Section 108 of the 1964 Act, as substituted by section 66 of the 2006 Act, provides for priority searches.
- 8.
This inhibition is called a priority entry.
- 9.
The period was previously 21 days but this was deemed to be too short. It was extended to 44 days by the Land Registration Rules 2012 (SI 483/2012). These rules also allow the application to be made by electronic means and the intention of the Land Registry is to introduce an electronic priority entry facility, as part of eRegistration, in the latter half of 2014.
- 10.
Interview with Greg McDermott ICT Manager Property Registration Authority 1 March 2012.
- 11.
Interview with Greg McDermott ICT Manager Property Registration Authority 1 March 2012. Transfers of part take longer to process as these involve mapping changes and the opening of a new folio. First registrations applications where there is a full investigation of the title also take longer.
- 12.
There is a 6 month time period for first registration but not for subsequent dealings with registered land.
- 13.
O’Connor (2003), p. 263.
- 14.
Wylie (1996), p. 369. See p. 370 for supporting case law.
- 15.
Coffey v. Brunel Construction Co. Ltd. [1983] IR 36.
- 16.
Burdens rank according to the order in which they are entered on the register.
- 17.
There are some instances where a discharge may be provided in advance of completion such as in a scheme of development however these fall outside the scope of this research.
- 18.
Under section 121 of the Irish Consumer Credit Act 1995. This relates to housing loans which are acquisition loans or the refinancing of acquisition loans.
- 19.
Donahue et al. (2003), p. 247.
- 20.
According to Law Society of Ireland (2013) an undertaking is any unequivocal declaration of intention addressed to someone who reasonably places reliance on it which is made by a solicitor in the course of his practice, either personally or by a member of the solicitor’s staff, whereby the solicitor, or in the case of a member of his staff, his employer, becomes personally bound. See paragraph 6.5.
- 21.
Donahue et al. (2003) p. 253.
- 22.
Connolly (2007), p. 24.
- 23.
Note that these risks to A are excluded from the remit of this research.
- 24.
In a residential conveyancing transaction B’s lawyer will have certified title to the lender. Any qualifications on title need to be disclosed to the lender in advance.
- 25.
See the charts in the Law Society of Ireland (2008).
- 26.
Connolly (2007), p. 52.
- 27.
Kelway (2004), p. 8.
- 28.
- 29.
Greed (1998), p. 1670.
- 30.
Harpum (2000), pp. 6–7.
- 31.
ACC Bank plc v. Johnston [2010] IEHC 236.
- 32.
ACC Bank plc v. Johnston [2010] IEHC 236.
- 33.
Butt (2006), p. 64.
- 34.
In England the view has been taken that the registry must share its functions in order for the registration gap to be eliminated. This argument was being used as the rationale for implementing an automated and automatic eConveyancing system. See O’Connor (2003), p. 272.
- 35.
Moore and Globe (2003), pp. 142–143.
- 36.
Section 78(2) Land Titles Act.
- 37.
Section 78(5) Land Titles Act.
- 38.
Clancy (2007), p. 12.
- 39.
See Sect. 9.4 for a more detailed analysis.
- 40.
Harpum (2000), p. 14.
- 41.
See Critchley (1998).
- 42.
See Battersby (1998).
- 43.
Murray (2004), p. 3.
- 44.
The format could be an electronic copy, image or reproduction of a written document. See definitions in section 17 of the LRRA.
- 45.
Section 17 of the LRRA calls these people electronic document submitters.
- 46.
Murray (2004), p. 3.
- 47.
Murray (2004), p. 2.
- 48.
Schedule 1 and section 8. A similar change was made in respect of charges on registered land.
- 49.
SI 559/2011. These rules have now been replaced by a consolidated set of rules i.e. the Land Registration Rules 2012 (SI 483/2012).
- 50.
No 27 of 2000.
- 51.
Oddly the section excludes contracts which can be electronic and signed electronically.
- 52.
Treacy and O’Sullivan (2004), p. 8.
- 53.
Murray (2004), p. 3.
- 54.
Murray (2004), p. 3.
- 55.
Harpum (2000), p. 9.
- 56.
- 57.
Coughlan (1998), p. 80.
- 58.
Harpum (2004), p. 9.
- 59.
Flaws (2003), p. 397.
- 60.
See Sect. 8.5.3.
- 61.
Kelway (2004), p. 3.
- 62.
Kelway (2004), p. 3.
- 63.
Howell (2006), pp. 553–576 in referring to the likely effect of the English Land Registration Act 2002 at p. 574.
- 64.
Howell (2006), p. 574.
- 65.
Section 78(2) Land Titles Act.
- 66.
Section 78(3) and 78(4) Land Titles Act.
- 67.
Donahue et al. (2003), p. 35.
- 68.
Murphy (2013), p. 10.
- 69.
There may be indirect consequences for U and V. See Chap. 8 which deals with the destructive effects of a registered transaction.
References
Battersby, G. (1998). Informally created interests in land. In S. Bright & J. Dewar (Eds.), Land law themes and perspectives. Great Britain: Oxford University Press.
Butt, P. (2006). Electronic conveyancing: A practical guide. London: Thomson Sweet & Maxwell.
Clancy, D. (2007). Benchmarking land registration. In Registering the World Conference, Dublin, 26–28 September 2007. http://www.prai.ie/uploadedfiles/conference20071/papers/s5p4.pdf. Accessed 14 May 2014.
Connolly, F. (2007, October). E-Conveyancing: Who will benefit? (B.Sc. Hons Dissertation).
Cooke, E. (2003). E-conveyancing in England: Enthusiasms and reluctance. In D. Grinlinton (Ed.), Torrens in the twenty-first century. Wellington: LexisNexis.
Coughlan, P. (1998). Property law (2nd ed.). Dublin: Gill & Macmillan.
Critchley, P. (1998). Taking formalities seriously. In S. Bright & J. Dewar (Eds.), Land law themes and perspectives. Great Britain: Oxford University Press.
Dixon, M. (2000). Estoppel, unconscionability and formalities in land law. Cambridge Law Journal, 59.
Donahue, D. J., Quinn, P. D., & Grandilli, D. C. (2003). Real estate practice in Ontario (6th ed.). Canada: LexisNexis Butterworths.
Flaws, J. (2003). Compensation for loss under the Torrens system – Extending state compensation with private insurance. In D. Grinlinton (Ed.), Torrens in the twenty-first century. Wellington: LexisNexis.
Greed, J. A. (1998). No, I shan’t register. New Law Journal, 148.
Harpum, C. (2000). Property in an electronic age (Modern studies in property law, Vol. 1). Oxford: Hart.
Harpum, C. (2004). English experience: Title by registration – Preparation for e-conveyancing. In Law Reform Commission Annual Conference. http://www.lawreform.ie/Annual%20Conference%202004.PDF. Accessed 18 Feb 2009.
Howell, J. (2006). Land law in an E-conveyancing world. The Conveyancer and Property Lawyer.
Ipp, D. A., & Siopis, A. N. (1989). Formalities relating to contracts for the sale of land revisited. University of Western Australia Law Review, 19.
Kelway, S. (2004). Electronic conveyancing – Experiences in England and Wales. In Law Reform Commission Annual Conference.
Law Society of Ireland. (2013). A guide to good professional conduct for solicitors (3rd ed.). Law Society of Ireland. http://www.lawsociety.ie/Documents/committees/conduct-guide.pdf. Accessed 29 June 2014.
Law Society of Ireland. (2008). eConveyancing: Back to basic principles. Vision of an electronic system of conveyancing (‘eVision’).
Moore, M. E., & Globe, J. M. (2003). Title searching and conveyancing in Ontario (5th ed.). Canada: LexisNexis.
Murphy, S. (2013). An examination of eConveyancing: A comparison of the treatment of overriding interests in the context of eConveyancing: Ireland with England and Wales (Master of Law thesis). National University of Ireland, Galway.
Murray, K. (2004). Electronic registration and other modernization initiatives in Ontario’s land registration system. In Law Reform Commission Annual Conference. http://www.lawreform.ie/Annual%20Conference%202004.PDF. Accessed 18 Feb 2009.
O’Connor, P. (2003). Information, automation and the conclusive land register. In D. Grinlinton (Ed.), Torrens in the twenty-first century. Wellington: LexisNexis.
Treacy, C., & O’Sullivan, J. (2004). Land registration in Ireland – Current position and future developments. In Law Reform Commission Annual Conference. http://www.lawreform.ie/Annual%20Conference%202004.PDF. Accessed 10 Mar 2009.
Wylie, J. C. W. (1996). Irish conveyancing law (2nd ed.). Dublin: Butterworths.
Youdan, T. G. (1984). Formalities for trusts of land, and the doctrine in Rochefoucauld v. Boustead. Cambridge Law Journal, 43.
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Brennan, G. (2015). Before Registration. In: The Impact of eConveyancing on Title Registration. Springer, Cham. https://doi.org/10.1007/978-3-319-10341-9_6
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