Burdens – Registration of Burdens

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1. General

1.1 Burdens which may be registered
No burden can be registered unless:
(i) It is specified in section 69, R.O.T. Act, 1964, (the 1964 Act) as amended by any subsequent Act, (e.g. section 66 of the Wildlife Act, 1976). Note that a new burden was added to section 69(1)(kk) of the 1964 Act under section 128 of the Land and Conveyancing Law Reform Act, 2009 (the 2009 Act) to allow for registration of positive freehold covenants under section 48 of that Act.
(ii) it is properly created, and
(iii) the registered owner, or the person prescribed by Rule 88(L.R. Rules, 2012), concurs in the registration, or registration is ordered by Court (section 69(2), R.O.T. Act, 1964).

1.2 Practice when assent to registration of burden is not lodged
If the consent to the registration of burden created by a deed is not provided in the documents lodged the appropriate assent should be requisitioned. The application is not to be rejected for the appropriate assent.
If other matters are lodged for registration besides the burden the solicitor may be informed that if the assent is not lodged within a specified time registration will proceed without reference to the burden.

1.3 Notice of Burdens under section 72
The matters set out in section 72 affect without registration and may not be registered as burdens. On lodgment of an application to register any such matter as a burden, the dealing is to be rejected and the Solicitor informed that the burden affects without registration by virtue of section 72. If re-lodged with request to register notice of the burden (under section 72(3)), such registration should be made.

The consent of the registered owner or his Solicitor to the entry of such notice is necessary. Certain Acts have added to the list of burdens under section 72 e.g.
The Gas Act 1976 (section 43)
Landlord and Tenant (Ground Rents) Act (No 2) 1978 (Section 28(2)), as updated by section 77 of the Registration of Deeds and Titles Act 2006
Capital Acquisitions Tax Act 1976 (section 68 (2))
Finance Act 1993 (section 107(2))
(Residential Property Tax) Act

The entry on the folio should be prefaced by
” Date ) Notice of burden under Section 72
Inst )

1.4 Charges under section 62 of the Registration of Titles Act, 1964 as amended by the Land and Conveyancing Law Reform Act, 2009

Charges of registered land

Section 89(1) of the Land and Conveyancing Law Reform Act, which commenced on 1st December 2009 provided that a legal mortgage of land may only be created by a charge by deed. The former methods of creating a legal mortgage over unregistered land by conveyance or demise, in the case of freehold land, or by sub-demise or assignment, in the case of leasehold land, were abolished.

A further provision contained in the amendments, which are set out in Schedule 1 of the Act, effects an important change in relation to charges over registered land. Section 62 of the Registration of Title Act 1964 provided that a charge over registered land must be ‘in the prescribed form (or an instrument in such other form as may appear to the Registrar to be sufficient to charge the land, provided that such instrument shall expressly charge or reserve out of the land the payment of the money secured)’. The 2009 Act deletes the words in brackets.

Charges executed on or after 1st December 2009 prior to 1st March 2012

The procedures relating to these charges are set out in Legal Office Notice Approval of Deeds of Charge (Rule 52 Land Registration Rules 2012) – No. 9/2009

Charges executed on or after 1st March 2012

Rule 105 of the Land Registration Rules 2012, (S.I. No. 483 of 2012), prescribes charge forms, Form 49 – 53 and 56 – 58. The Rule and Forms prescribed therein apply to all charges, residential and commercial, executed on or after 1st March 2012. The prescribed form of charge for present and future advances, to facilitate residential mortgages, is Form 51. The deed must be one page only with any mortgage conditions filed on a separate document. This is based on the IBF form in widespread use since December 2009 and gives statutory validation thereto.

In respect of debentures and commercial mortgages, executed on or after 1st March 2012, where a specific charge on registered land is intended to form part of the security,Form 52is the prescribed form in accordance with Section 62(2) of the 1964 Act. It is a simple one page document intended as supplemental to the principal deed of commercial mortgage/debenture. The mortgagor will be required to execute both documents but only the one page Form 52 will be lodged with the Authority. The debenture/commercial mortgage will be retained by the lending institution.

Both new forms may be adapted by individual lenders in accordance withRule 52(1) of the Land Registration Rules 2012 and being one-page only will facilitate the introduction of eregistration/econveyancing in due course.

Practitioners and lending institutions should note that while the above requirements apply to registered land only, there being no forms prescribed for unregistered land, the new forms facilitate charging unregistered land also, the mortgagor charging as ‘beneficial owner’ rather than as ‘registered owner’.

2. Charges other than by sole registered full owners

2 .1 Charges by personal representatives of registered owners
(a) Charges in respect of
(i) the debts of deceased owners and
(ii) the liabilities of the personal representative in the administration of the deceased owner’s estate are to be entered in the Register as:-
“Charge for such sums (not exceeding €……. in favour of X, the personal representative of Y, which he is liable to pay as such personal representative”.

(b) Charges where created in respect of a distributive share of next-of-kin of a deceased registered owner who died prior to 1st June 1959 are to be created in favour of such next-of-kin and entered in the Register as:-
“Charge for sums not exceeding €…….. in favour of X in respect of his distributive share in the estate of Y, deceased. X, of ………………………… is owner of this charge.”

2.2 Charges by joint tenants
A charge by one of a number of joint tenants does not sever the joint tenancy.
Where such a charge is dated prior to 1st December 2009, the applicant should be informed that the charge will fail on the death of the joint tenant who created the charge unless s/he is the surviving joint tenant. If no reply is received to this requisition within 21 days, registration is to proceed. The following note is to be entered at the foot of the charge:

NOTE: “This charge affects the interest of A B in the property.”

Notwithstanding that a charge by one joint tenant does not sever the joint tenancy, the prior written consent of the other joint tenant(s) is required for such a charge dated on or after 1st December 2009. In the absence of such prior consent(s), the Dealing should be rejected with the following query raised:

“As a charge does not constitute an alienation, it cannot of itself operate to sever the joint tenancy. In the event of such a charge being validly created, it could only be registered against the interest of the chargor and it is liable to fail if the chargor is not the surviving joint tenant. However...