Burdens – Cancellation of Burdens

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1. Introduction

The Land Registration Rules, 2012 make provision for the cancellation or modification of Charges and Burdens on the Register. The governing Rules include: Rules 52, 72, 77, 101, 104, 105, 113, 114 and 119.

The fee for registration of a Discharge is €40 for each individual burden.

2. Forms of Discharge

Applications may be in LR Form 57A, LR Form 57B or LR Form 63 in the case of a Judgment Mortgage. Application is usually made by the registered owner of a Charge or the person entitled to the benefit of a Burden (or his/her personal representative) or in circumstances where the registered owner of a Charge does not concur, by the registered owner of the folio.

Note that a Discharge in LR Form 57A or a LR Form 63 application is only required to be signed and signature attested but an application in LR Form 57B must be sworn.

2.1. Discharge by owner (or his/her personal representative) of a Charge/Burden
The discharge may be given in LRForm 57A which, (save in the case of a Company or where a foreign company is executed in accordance with section 64 (2)(4) of the Land and Conveyancing Law Reform Act 2009 i.e. in accordance with the legal requirements governing execution of deeds by such a body corporate in the jurisdiction where it is incorporated and delivered as a deed by the person executing it or by a person authorized to do so on that person’s behalf), need not be sealed but should be dated, signed and the signature attested. As the requisition is not strictly a release of the burden, the Registry is not concerned as to whether Stamp Duty has been paid on the discharge.

Building Societies and Banks issue receipts or Vacates under its Seal (or by Authorised Signatories), usually on the Instrument of Charge (or a Counterpart thereof) and such are sufficient for the purposes of section 65 of the Registration of Title Act 1964. Pursuant to section 18 of the Housing Act 1988 this is extended to Housing Authority Charges. Such Vacates (and discharges in general) do not attract Revenue Duty.

In the case of a Discharge by a personal representative the relevant Grant of Probate/Grant of Letters of Administration should be lodged for noting and return.

2.2. Discharge other than by owner of a Charge/Burden
Any person having an interest in the burden or the property (most usually the registered owner of the Folio on which the Charge/Burden is registered or the successor in title to the registered owner when the Charge/Burden was originally registered) may apply on affidavit in LR Form 57B to have the burden cancelled. LR Form 57B will generally require suitable adaptation, alteration or modification as the circumstances of the case dictate.

No Stamp Duty is payable on such discharges.

2.3 Discharge of Charges registered without an ownership
See Rule 44(e) of the Land Registration Rules 2012.

It must be established that the person/body releasing is entitled to the benefit of the charge. This will necessitate inspection of the Instrument of charge. In LR Form 57B applications it must also be established who is entitled to ownership of the charge and notices served in appropriate cases.

In the case of Banks and other Financial Institutions cancellation may proceed on lodgement of:

  1. An Original Release of the Charge
  2. An up to date Certificate of “No Acts” by the Mortgagee and
  3. The Original Mortgage {which must always be produced}.
3. Notices and Objections

3.1 Notices
Notices to affected parties are not required in the case of a Vacate or requisition for cancellation of a Charge/Burden or Judgment Mortgage under properly submitted LR Form 57A or LR Form 63.

In LR Form 57B applications we must be satisfied that the Charge/Burden no longer affects the property and notice to affected parties is generally required.

Where an amount of a Charge does not exceed €1000 or is of an Annuity of €250 or less discretion may be exercised in appropriate cases and notice need not be served on next of kin.

3.2 Objections
On receipt of an objection which prima facie discloses a valid ground for such objection it should be acknowledged and the objector informed that the matter is being taken up with the applicant’s solicitor. The objector may also be informed that it may be necessary in due course to have the legal grounds of objection set out fully on affidavit. If he has requested a copy of the grounding affidavit, this, at the discretion of the officer, may be provided. However care must be taken to ensure that ‘personal data’, within the meaning of the Data Protection Acts in relation of any party referred to in the grounding affidavit is erased. A valid objection should be referred to the applicant’s Solicitor either by way of extract or copy, whose observations thereon should be invited.

Consider asking the applicant’s solicitor for substantiation of the applicant’s claims (on affidavit if necessary).

The response to the objections should then be notified to the objector with a request that his objection be set out on affidavit – to include facts on the matter in dispute.

The applicant’s Solicitor should then be asked for a supplementary affidavit to deal with the objector, if necessary.

4. Proofs required for cancellation of charges

4.1 Where it is claimed that the charge was paid
If it is claimed on affidavit in LR Form 57B that the charge has been paid, then, if a receipt by the owner of the charge is lodged with the application, no notice is necessary, and the charge may be cancelled.

If receipt is not lodged, or what purports to be a receipt is a doubtful document, notice should be served.

4.2 Where it is claimed that charge (or right) is statute barred
When it is claimed that a right or charge is statute barred, the facts shown on the affidavit must constitute a prima facie case that is so, viz.,

  1. that the appropriate limitation period has expired since the right of action of the owner of the burden accrued.
  2. that no acknowledgement in writing has been given during that period and no part payment made.
  3. that the owner of the burden was not under such disability (of unsound mind or infancy) as would stop the statute running.

The right of action accrues on the following dates:

  • Money Charges: The date on which the charge became payable.
  • Rights and privileges: The first date on which such right could be validly claimed.
  • Charge on a furture interest: The date on which such interest vests in possession. Future interests are equitable interests only from 1/12/2009.
  • Judgment Mortgage: The date on which the judgment becomes enforceable (section 47)(c)(3) of the Statute of Limitations 1957 (i.e. the date on which the judgment was obtained). See paragraph 7.3.

Limitation periods are as follows:

  • Mortgage to Church Temporalities Fund, Charges under section 31 of Land Law (Ireland) Act 1881 and charges under Housing (Gaeltacht Acts) 1929 and 1934. …………………………………………………………………..30 years
  • Other charges…………………………………….…………………………….. 12 years
  • Arrears of interest, rent charges, annuity etc,…………………………….6 years
  • Action by a State Authority claiming the sale of land which is subject to a mortgage or charge……………………………….. 30 years.

Future interests are equitable interests only from 1/12/2009 on the commencement of Part 3 of the 2009 Act.

It would appear that a rentcharge, annuity or other periodic sum may be barred after 12 years, but not a “conventional rent”, or interest on a mortgage, or a terminable annuity under the Housing (Gaeltacht) Acts 1929 to 1934. (See Statute of Limitations 1957, definition in section 2 “land”, “rentcharge”, “conventional rent” and Counahan on the Statute of Limitations 1957, pp 25-26. Section 2 of the 1957 Act was amended in Schedule (8)(1) amendments of the 2009 Act to substitute the definition of judgment mortage to mean a mortgage registered by a judgment creditor under section 115 of the 2009 Act. Any such application should be carefully considered and Deputy Registrar consulted.

In any case where a prima facie case has been established, notice should be served and if no objection is received, the burden may be cancelled.

4.3 Where it is claimed that alternative security is adequate
Sometimes application is made to cancel a burden on the grounds that alternative security for the burden is adequate. For example, on transfer of part of a folio it might be claimed that the lands remaining on the folio are sufficient security for the burden and application might be made to register the part transferred free from the burden. Such a claim is not strictly sufficient grounds to cancel the burden and the applicant should be informed that the burden will not be cancelled unless a release or discharge by the owner of the burden is produced.

In some cases, (for example: where the owner of the burden is a person of unsound mind, or where his whereabouts are unknown or where he is under serious disability), it might not be possible to obtain such release. The Authority will in some cases be prepared to cancel such burden without such release if the merits of the case demand it, and if an indemnity is given against any claim for compensation under section 120 of the Act arising from such cancellation. All such cases must be considered purely on an ad hoc basis and the Deputy Registrar consulted through the usual channels.

4.4 Where it is claimed that money has been provided on deposit in a Bank, etc.

Solicitors, on occasion, when no release is forthcoming, attempt to procure the cancellation of charges by lodgment of the amount on deposit in Banks in joint names, etc. This type of application may have been based on Section 5 of the Conveyancing Act 1881 which related to payment of money into court. However Section 5 of the 1881 Act was repealed by the Land and Conveyancing Law Reform Act 2009 and not replaced. Such lodgment does not constitute a satisfaction of the charge.

Any such case lodged for consideration based on hardship or...

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