After Registration

Brennan, Gabriel

doi:10.1007/978-3-319-10341-9_8

Gabriel Brennan²

509 Accesses

Abstract

The interest of a registered owner may be subject to claims, whereby U or V seek such relief as a court may grant. This chapter deals with the remaining risk categories. These are interests off the register which affect title, the destructive effects of a registered transaction and interests not recognised and not capable of registration. Each category demonstrates how third party rights are impacted by the registration system and the effect of those rights on the other participants.

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Notes

1.
See Deeney (2014), p. 173 for examples of cases where ownership passes to another person otherwise than by transfer from the registered owner. This is subject to notice being given to the registered owner except where their estate or interest is overreached. See p. 175.
2.
Gray and Gray (2009), p. 191 refer to a ‘crack in the mirror’ which detracts from the mirror image the title register is meant to reflect.
3.
Fitzgerald (1995), p. 219. See section 37(3) of the 1964 Act.
4.
See Megarry and Wade (2000), pp. 124 and 127–128 for the distinction between interests being overreached and overridden. See also City of London Building Society v. Flegg [1987] 3 All ER 435.
5.
See Megarry and Wade (2000), pp. 130–131 for similar type examples to illustrate the position in England and Wales.
6.
A section 72 declaration is automatically sought on completion in a registered conveyancing transaction in Ireland.
7.
Harpum (2000), p. 14.
8.
Wallcite Ltd. v. Ferrishurst Ltd. [1999] 1 All ER 977.
9.
Honiball v. McGrath [2000] IEHC 33.
10.
See the list of overriding interests in Ireland at Sect. 2.3.2.
11.
City of London Building Society v. Flegg [1987] 3 All ER 435.
12.
National Provincial Bank Ltd. v. Ainsworth [1965] 2 All ER 472.
13.
See Murphy (2013), pp. 30–34 for further case law.
14.
Section 72(1)(i) of the 1964 Act and section 44(1) paragraph 4 of the Land Titles Act.
15.
It is a burden which may be registered under section 69(1)(g) of the 1964 Act. This refers to any lease where the term granted is for a life or lives, or is determinable on a life or lives, or exceeds 21 years, or where the term is for any less estate or interest but the occupation is not in accordance with the lease.
16.
See Sect. 2.3.2. In England and Wales where there is an interest protected by actual occupation consideration is given to the discoverability of that occupation. A transferee is not bound by such an interest where the occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition. See the Land Registration Act 2002, Sch 3, para 2(c).
17.
This is an alternative to actual occupation under section 72(1)(j).
18.
See section 21(2).
19.
See Sect. 8.3.2 for the reason for its introduction and the effect of overreaching.
20.
This is contradictory given the move towards dematerialisation in the 2006 Act.
21.
Section 21(3)(b)(iii).
22.
City of London Building Society v. Flegg [1987] 3 All ER 435.
23.
Section 51(1) of the Succession Act 1965.
24.
See sections 104 and 105 of the 2009 Act.
25.
For other examples see Deeney (2014), pp. 175–176.
26.
See Deeney (2014), p. 175 for other examples of overreaching.
27.
Section 62(2).
28.
Randvest Inc. v. 741298 Ontario Ltd. 1996 CanLII 8207 (ON SC).
29.
Section 99(1) of the Land Titles Act.
30.
Section 3.
31.
Section 11 of the 2009 Act.
32.
Property Registration Authority (2012).
33.
Mee (2006), p. 71.
34.
This is a reference to section 2(1) and section 27 of the Law of Property Act 1925.
35.
Mee (2006), pp. 70–71. Mee does not deal with how this section interacts with the protection provided by the Family Home Protection Act 1976 as amended and he obviously could not address the provisions of the subsequently enacted Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
36.
394 Lakeshore Oakville Holdings Inc. v. Misek 2010 CanLII 6007 (ON SC).
37.
It should be noted that landlord and tenant law also remains to be reformed. The Law Reform Commission has published draft reforming legislation. See Law Reform Commission (2007). In April 2011 a version of this draft Bill was published by the Department of Justice and Equality but unfortunately this has not progressed further. See http://www.justice.ie/en/JELR/Pages/PR11000046. Accessed 23 May 2014.
38.
Explanatory memorandum Land and Conveyancing Law Reform Act 2009, p. 22.
39.
Brennan (2010).
40.
See Deeney (2014), p. 309 for more detail of the difficulties which were caused by section 35.
41.
No 23 of 2011.
42.
Property Registration Authority (2013b).
43.
Under sections 33 and 35(2).
44.
Mee (2006), p. 68. He notes that the Law Reform Commission report on eConveyancing came almost a year after the publication of its report setting out the substance of the Bill which was enacted as the 2009 Act.
45.
Section 72(1)(h) excludes easements created by express grant or reservation after first registration.
46.
Lyall (2010), p. 936.
47.
In England and Wales the Law Commission has endorsed making the register a complete and accurate reflection of the state of the title at any given time. See Law Commission and HM Land Registry (2001), p. 2.
48.
Stewart-Wallace (1924), p. 92.
49.
Woods (2009), p. 34.
50.
Mason (2003), pp. 3–4.
51.
Mason (2003), p. 3.
52.
Park (2009), p. 8.
53.
Park (2009), p. 8.
54.
Park (2009), p. 8.
55.
Harpum (2004), p. 4.
56.
Arruñada (2010), p. 118.
57.
Arruñada (2010), p. 118.
58.
Arruñada (2010), p. 118.
59.
LTCQ AND LT Plus. See Sects. 2.3.2, 4.8 and 8.5.3.
60.
Deeney notes that it will be necessary to have the title to all estates and interests affecting registered land registered in the title register and this will necessarily mean a fundamental review of the conclusiveness of the register as such an extension of the register might have implications for the state guarantee i.e. the compensation provisions. See Deeney (2014), p. 366. This aspect is explored further at Sect. 9.6.
61.
Howell (2006), p. 554.
62.
Gray and Gray (2009), p. 183 in referring to a new form of register-based title which compresses the historic terminology of English land ownership into an amalgam of interchangeable concepts.
63.
Law Society of Ireland (2008), p. 1.
64.
See Sect. 8.5.3.
65.
Murphy notes that property rights which cannot be brought on to the register will cease to exist. Murphy (2013), p. 10.
66.
See Ruoff (1952), p. 118.
67.
Gray and Gray (2009), p. 194.
68.
Deeney (2014), p. 133.
69.
Murphy (2013), p. 8.
70.
Deeney (2014), p. 366. This is a reference to section 72 of the 1964 Act. See also Law Society of Ireland (2008), p. 1.
71.
See Sect. 8.5.3 for examples.
72.
Hansmann and Kraakman (2002), pp. S402–S403.
73.
Hansmann and Kraakman (2002), p. S403.
74.
Joint Land Titles Committee (1990). See McCrimmon (1994), pp. 300–316 for details of the recommendations. This Committee favoured discretionary indefeasibility in order to achieve fair results. See Mason (2003), p. 18. Mason is inclined to agree that it might generate fairer results but was not sure if the benefits would outweigh the detriments of change, particularly as there would be uncertainty for a significant period of time as to how the courts would exercise the discretion.
75.
Joint Land Titles Committee (1990), p. 14.
76.
Joint Land Titles Committee (1990), p. 20.
77.
Joint Land Titles Committee (1990), p. 19.
78.
Where registration is based on a forged or unauthorised transfer the Model Act leaned in favour of restoring a displaced registered owner and compensating the innocent successor of the fraudulent party as the displaced owner is statistically likely to have a closer connection with the land and to suffer loss which will be harsher as well as greater and less easy to quantify, than the loss suffered by the recent acquirer of the interest. See Joint Land Titles Committee (1990), pp. 3 and 25.
79.
November and Rendell (2010), p. 169.
80.
McCrimmon (1994), pp. 300–316. She notes that while Torrens was critical of the interference of equity he did not advocate the abolition of equitable interests as the original statute permitted the registration of trusts and the caveat. Some commentators disagree. See Hughson et al. (1997), p. 495 who state that Torrens did not foresee the continuing validity of equitable interests.
81.
November and Rendell (2010), p. 151.
82.
Hughson et al. (1997), p. 464.
83.
Property Registration Authority (2013a).
84.
Defined in section 3(1) of the 1964 Act as any estate, interest, equity or power.
85.
Section 97 of the 1964 Act. Cautions are not given in respect of section 69 burdens or section 72 overriding interests. See Brennan and Casey (2012), chapter 14 for a detailed explanation of cautions, inhibitions and priority searches.
86.
Deeney (2014), p. 278.
87.
Section 98 of the 1964 Act.
88.
Section 108 of the 1964 Act, as substituted by section 66 of the 2006 Act.
89.
Sections 128–135 of the Land Titles Act.
90.
Section 118 Land Titles Act.
91.
November and Rendell (2010), p. 175 refer to this as a settlement notice.
92.
November and Rendell (2010), p. 175.
93.
November and Rendell (2010), p. 175.
94.
See Sects. 4.3 and 8.5.5 on the different property markets with particular reference to the complex commodities market.
95.
Property Registration Authority ‘Strategic Plan 2013–2015’ (2013), pp. 31 and 39. NAMA was established in 2009 as a means of addressing the problem with Ireland’s banking sector created by excessive lending. The agency acquired loans with a nominal value of 74 billion from participating financial institutions. Note that the registration of NAMA is not compulsory and any transfer to NAMA takes effect as a deed registered on the date on which it took effect. See Deeney (2014), p. 351.
96.
The Act did contain compensation provisions to protect vulnerable people whose right might be extinguished without their knowledge but no applications for such compensation have been made. See Deeney (2014), p. 362.
97.
See Sect. 8.3.
98.
Section 11 of the 2009 Act.
99.
Property Registration Authority (2012).
100.
Deeney (2014), p. 117.
101.
See Sects. 2.3.2 and 4.8.
102.
Murray (2004), p. 7.
103.
Their exact title is Land Titles Converted Qualified (LTCQ).
104.
Murray (2004), p. 7.
105.
Harpum (2004), p. 4.
106.
Harpum (2004), p. 10.
107.
Harpum (2004), p. 11.
108.
Gray and Gray (2009), p. 183. Interestingly in discussing realism about title they examine physical possession versus proprietary ownership and refer at p. 1165 to “the unattractive rumble of state-sanctioned force majeure.”
109.
See Chamberlain (2002), p. 1093. See also Gray and Gray (2009), pp. 191 and 1106 and O’Sullivan (2013), pp. 43–63. O’Sullivan advocates that a similar early warning notification system of adverse possession of registered land should be introduced in Ireland.
110.
Dixon (2003), p. 145.
111.
Though Harpum expresses the view that the Law Commission and Land Registry in England and Wales adopted a rather cautious approach to the abolition or downgrading of overriding interests. See Harpum (2000), p. 16.
112.
It is interesting to note that no compensation was provided for anyone suffering loss due to these reforms.
113.
Mee (2006), p. 67.
114.
The Law Reform Commission (2005) and O’Sullivan (2013), pp. 43–63. O’Sullivan notes at p. 43 that in recent years the doctrine has been fuelled with uncertainty and confusion and subject to immense criticism. He advocates the adoption of the English notification system.
115.
The Law Reform Commission (2005), p. 327.
116.
See Sect. 8.5.
117.
See Sect. 3.3. Deeney notes that implementation of eConveyancing will require a fundamental review of the present functionality of the Irish land register. Deeney (2014), p. 365.
118.
Property Registration Authority ‘Strategic Plan 2013–2015’ (2013), pp. 31 and 39.
119.
See Sect. 8.5.6.
120.
See title to land at Sect. 2.3.2.
121.
Available at http://conventions.coe.int/Treaty/en/Treaties/Html/009.htm.
122.
Available at http://www.irishstatutebook.ie/en/constitution/.
123.
Madigan v Attorney General [1982] IR 117.
124.
Blake and Ors v Attorney General [1982] IR 117 at 127; [1981] ILRM 34.
125.
As a result of these cases the Housing (Private Rented Dwellings) Act 1982 was enacted.
126.
Dreher v Irish Land Commission [1984] ILRM 904.
127.
O’Callaghan v The Commissioners of Public Works in Ireland [1985] ILRM 364.
128.
Mellacher v Austria ECHR 19 December 1986, Series A No. 169; 12 EHRR 391.
129.
Wylie (1998), p. 17.
130.
James v United Kingdom ECHR 21 February 1986, Series A No. 98; 8 EHRR 123.
131.
The Landlord and Tenant (Ground Rents) (No. 2) Act 1978 (No. 16 of 1978) which introduced a new test and procedure for tenants to purchase the freehold.
132.
373 Dáil Debates 3267–3268 (24 June 1987) http://historical-debates.oireachtas.ie/D/0373/D.0373.198706240004.html. Accessed 23 June 2014.
133.
Professor Sweeney (1992), p. 67.
134.
See Hogan and Whyte (2003), pp. 1989–2023 for further case law on these points.
135.
O’Connor (2003c), p. 89.
136.
O’Connor (2003b), pp. 258–259.
137.
O’Connor (2003b), p. 258.
138.
Stubkjær et al. (2007), p. 8.
139.
In Ireland the stamp duty certificate must be lodged with the application for registration.
140.
Stubkjær et al. (2007), p. 12.
141.
Boyle v. Connaughton [2000] IEHC 28.
142.
This overriding interest is listed at section 72(1)(j) of the 1964 Act. Breen states that the right which accrued to the benefit of the defendants in this case was the right to rectification of the register. She explores whether a right to rectification is itself an overriding interest. See Breen (2000), pp. 52–57. However, it should be noted that the Court in this case also found that there was a mistake in mapping and the actual rectification involved correction of those maps. See Murphy (2013), p. 26 for details of an attempt to repeal this provision which was not successful.
143.
This proviso does not apply in respect of tenancies.
144.
The Right Honourable The Lord Mayor Aldermen and Burgesses of Dublin v. Burke [2001] IESC 81.
145.
Arruñada (2010), p. 118.
146.
Park (2009), p. 8.
147.
Park (2009), p. 8.
148.
Glover (1933), p. 14.
149.
Dixon (2003), pp. 137–138.
150.
Fox (2000). See this thesis for an examination of the policy behind the creation of overriding interests in England and Wales.
151.
See Ruoff (1952), p. 118.
152.
Stubkjær et al. (2007), p. 12.
153.
Dixon (2003), p. 138.
154.
Fitzgerald (1995), p. 219.
155.
Deeney (2014), p. 366.
156.
Murphy (2013), pp. 14 and 80.
157.
Dixon (2003), p. 138.
158.
Arruñada (2011), p. 4.
159.
Dixon (2003), p. 138. See also Sect. 6.3.3 in relation to changes in formalities.
160.
Murphy (2013), p. 67.
161.
Harpum (2000), p. 4.
162.
Harpum (2000), p. 14.
163.
Murphy notes that it may prove impossible to bring them on to the register due to their organic and intangible nature. See Murphy (2013), pp. 69–70.
164.
See O’Connor (2003b), pp. 271–272 for moves towards this goal in England. See also Law Society of Ireland (2008), p. 1.
165.
Harpum (2000), p. 4.
166.
De Soto (2001), pp. 23 and 30.
167.
Murphy refers to the case of Walsh and Cassidy v. Sligo County Council [2010] IEHC 437, [2013] IESC 48, [2014] IESC 22 in relation to public rights of way as an example of the lengths and expense that land owners are prepared to go to protect their property and how rigorously claimants of overriding rights will defend those rights. See Murphy (2013), p. 78.
168.
Ferlan et al. (2007), p. 31.
169.
Fox (2006).
170.
Zevenbergen et al. (2007), p. 261.
171.
Clancy (2008), p. 3.
172.
O’Connor (2003a), p. 11 in referring to law reform proposals in Alberta, Canada and the UK. See Sect. 8.5.2 for more information on mixing interest recording with title registration.
173.
United Nations Economic and Social Council (2007), p. 5.
174.
Gummow (2003), p. 66.
175.
For an examination of adverse possession and its role in relation to registered land in England and Australia, see McCrimmon (2003).
176.
Deeney (2014), p. 378.
177.
Deeney (2014), p. 378.
178.
Such an easement exists in England and Wales but not in Ireland.
179.
Section 11(6) of the 2009 Act.
180.
Section 11(7).
181.
Explanatory memorandum Land and Conveyancing Law Reform Act 2009, p. 5.
182.
Rajoy (2008).
183.
Rajoy (2008).
184.
Rajoy (2008).
185.
See also Sect. 4.3 noting Wallace and Williamson who refer to five land market stages. Wallace and Williamson (2004).
186.
See Williams (2008).
187.
See O’Connor (2009), pp. 133–159 for details of the moral hazard arising from such securitisation and other ‘predatory’ lending practices. See also Tuffin (2009), pp. 280–310.
188.
Arruñada (2010), p. 118.
189.
See Gray and Gray (2009), pp. 138–139 for an explanation of the numerus clausus principle. They also offer the alternate view that the modern drive towards comprehensive recordation of land rights in a publicly accessible register has reduced the need to constrict the menu of rights deemed capable of proprietary status.
190.
Ruoff (1952), p. 162.
191.
Arruñada (2010), p. 119.
192.
The Family Home Protection Act 1976 (No 27 of 1976). Note that this legislation has been amended on numerous occasions by piecemeal reform of the law in part to accommodate civil partners and cohabitants.
193.
At the moment section 52 of the 2009 Act provides that the entire beneficial interest passes to the transferee on the making of an enforceable contract for the sale of land.
194.
Howell (2006), pp. 553–576 in referring to the likely effect of the English Land Registration Act 2002 at p. 574. He notes at p. 554 that legal and equitable interests have a life of their own outside any registration system but under eConveyancing they may not. He notes also at p. 554 that the traditional distinction and dividing line between ‘personal’ and ‘property’ interests will change.
195.
Howell (2006), p. 553.
196.
Merrill and Smith (2000–2001), pp. 1–70.
197.
Merrill and Smith (2000–2001), p. 38.
198.
Merrill and Smith (2000–2001), p. 69.
199.
Hansmann and Kraakman (2002), p. S374.
200.
Hansmann and Kraakman (2002), p. S373.
201.
Merrill and Smith (2000–2001), p. 61.
202.
Merrill and Smith (2000–2001), p. 61.
203.
Merrill and Smith (2000–2001), pp. 62–65.
204.
Van Erp (2003), 7.2.
205.
Van Erp (2003), 7.2.
206.
Lyall (2010), p. 963.
207.
Dixon (2003), p. 154.
208.
Fitzgerald (1995), p. 219.
209.
Murphy notes that some no longer have relevance in a modern conveyancing context. Murphy (2013), p. 21.
210.
These relate to the resettlement of large estates by the Land Commission to tenant farmers. The Land Commission was dissolved in 1992 after over 100 years in existence. See Sect. 2.3.2.
211.
No. 27 of 2004.
212.
Lyall (2010), p. 944.
213.
There are two such overriding interests; a perpetual yearly superior rent and covenants and conditions created in an instrument creating the superior rent.
214.
Where a tenant has acquired the fee simple. See section 28 of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 (No. 16 of 1978) as amended by section 77 of the 2006 Act.

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Gabriel Brennan

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Brennan, G. (2015). After Registration. In: The Impact of eConveyancing on Title Registration. Springer, Cham. https://doi.org/10.1007/978-3-319-10341-9_8

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DOI: https://doi.org/10.1007/978-3-319-10341-9_8
Published: 06 September 2014
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