First Registration and other Examiner cases

• Original version: <a href='/vid/first-registration-and-other-907695921'>First Registration and other Examiner cases</a>

1. Application for First Registration of Freehold Title based on documentary title

Requirements include:

1.1 Lodgment of affidavits in LR Form 1 of the Land Registration Rules 2012, to be made by the applicant or in the cases of a company by the Secretary or Law Agent. Generally in exceptional circumstances e.g. where the secretary is itself a company etc, the affidavit may be made by a director or an administrative officer with personal knowledge of the facts deposed and duly authorised to make the affidavit for and on behalf of the company. An averment or letter to that effect is acceptable. It may also be made by the Law Agent or Liquidator. In suitable circumstances it may also be made by the solicitor on record.

1.2 The Statement of Title referred to at Rule 15(1)(a) of the Land Registration Rules 2012 is desirable in all cases but may be dispensed with on short titles. Counsel’s opinion may be accepted in lieu (Rule 15(2) and side-note to Form 1) where such opinion contains sufficient detail of the title. See Fitzgerald’s “LAND REGISTRY PRACTICE”, end of Chapter 22.6.

1.3 The Schedule of Documents. It is to be ticked off by the setting-up staff, in confirmation that the documents listed therein are in fact lodged and to ensure that all such documents are date-stamped and referenced.

1.4 An Ordnance Survey map as required by Rule 15 (1)(c) or such other map as is acceptable to the Map Branch is to be lodged.
The map on deeds is to be visually compared with the O.S. Map. If the O.S. Map includes property or boundaries not on the deed map consider:

• asking the solicitor to explain the discrepancy e.g. an architects certificate
• serving notice on adjoining owners
• having deed amended and re-executed – if less than 12 years old.

In multi-title or multi-property applications for first registration consider suggesting to the solicitor for the applicant that a composite map, title chart, and related index might be helpful. If necessary the map should be checked initially in mapping branch for confirmation that the application property is in fact unregistered land and for identification of any mapping conflicts.

1.5 Originals of documents of title. They are to be lodged, date-stamped and referenced. Where the originals are not lodged and other property is involved, look for production of same. If there is a difficulty in producing same consider accepting

• certificate that they were produced to the solicitor for the purchaser on the closing of the sale, or
• certificate that the applicant’s solicitor (who may not have acted for the purchaser in the sale) has satisfied himself that they were not the subject of an equitable lien at the time of closing. In this connection where the vendor was a company consider calling for a companies office search as evidence that there was no equitable deposit of the title deeds. This may be appropriate in subdivision cases. In general this is an area for exercising discretion.

Where the original deeds are not forthcoming a satisfactory explanation must be obtained for the solicitor for the applicant, e.g. destroyed in a fire, burglary, robbery etc. Caution is to be exercised in all such cases, particularly in urban cases.

See Practice Direction – Lost Deeds.

Where the original deeds are lost see in Re Gardiner 110 ILRT P21(1976).

The Examiner must be satisfied that exhaustive searches have been made, that copies of the memorials are produced together with a full copy of the missing deed (if available). S/he should consider serving notice on the Banks Standing Committee. An advertisement in the newspaper will not be generally be required. S/he must ensure that we have an indemnity from the applicant, indemnifying the Authority and the State against all loss that may be incurred by virtue of registering the title as absolute free from encumbrances without production of the original deed, and if possible from the person who lost it, i.e. solicitor, together with an undertaking to produce it to the Authority should it ever come into their possession. If an indemnity bond has been obtained and is available have same assigned to the Authority. If one is being made available consider having same issued in the name of the Authority in the amount of the current market value for whatever period over 12 years that is on offer.

Where the documents disclose a purchasers prior tenancy or other interest in the application property, the prior tenancy is to be dealt with, with a view to merging same or having it noted as a burden on the folio. It will usually be indicated by a small consideration in the deed. The title to the tenancy interest is to be investigated and explanations sought. If the replies are unsatisfactory the Examiner is to consider refusing the application or registering with a possessory title.

If the title deed are numerous consider, on completion of the registration, having same tied with string rather than with rubber band and not pierced or defaced by a fastening pin, marking clearly the documents to be returned and those retained.

Requirements as to Registry of Deeds searches in first registration applications are as follows:

Registry of Deeds and other searches: If none lodged on Preliminary Rulings call for “any searches in your possession”. Where property has been hived off from other property, copies of searches relating to the parent holding may be accepted. Otherwise expect the originals of the searches. When requisitioning searches generally, formal rulings are to be used rather than a letter. Common or Verified Hand Searches are to be requisitioned. Certified hand searches or unverified hand searches lodged may sometimes be acceptable, where no further queries arise. Any acts appearing on the searches are to be explained. Faxed searches should be followed by the originals.

Registry of Deeds search may commence with roots more than 15 years old (section 56 of the Land and Conveyancing Law Reform Act 2009).

The Search is to be made in the Index of Names against all parties including alternative names and spellings as appears from the title documents. The search is to be made from the day before the relevant deed to the day after the date of registration of the memorial of the next subsequent deed; in the case of death, up to the end of the calendar year. Personal representatives are to be searched against from the date of death up to the day after the registration of the memorial of the assent or the next deed of sale. (Note section 51 of the Succession Act 1965 and the case of Crowley v Flynn High Court 1983 ILRM p 513 referred to in Fitzgerald’s ” Land Registry Practice” regarding sales by a personal representative after 20 years and raise a query). Search against beneficiaries, (where there are no personal representatives) from the date of death. Search against trustees, on trust for or with a power of sale, from the date of death.

Search against all descriptions of lands, old and new and requisition fresh searches, if necessary.

Judgments Office Search for lis pendens and judgments entered prior to the 1850 Act and re-registered since. (Section 117 of the Registration of Title Act 1964 and Rule 120 of the Land Registration Rules 2012 would appear to refer to such judgments).

Judgments after 1850 only concern us if they have been registered as judgment mortgages. Otherwise the search may be an indication of the applicant’s financial position – in which case a Bankruptcy search might be called for. Otherwise a Bankruptcy search is not necessary. It is to be noted that District Court judgments are now registerable as judgment mortgages consequent on the Courts Act 1981.

Requisition Companies Office Search against an applicant company and in a suitable case against all, companies on the title – for debentures, liquidators, receivers, change of name, equitable deposit, undertaking etc. The appointment of a receiver crystallises a debenture and the charge is registerable.

Bankruptcy or Sheriffs Office Searches are not generally necessary for our purposes.

First Registration applications based on Certificate in LR Form 3 applications are dealt with fully in Practice Direction – First Registration in Form 3.

Rule 19(5) of the Land Registration Rules 2012 deals with first registration applications where the title has been examined by counsel. Generally the Rule is not appropriate in multi-title or multi-property applications.

The usual note that registration does not extend to the mines and minerals is to be entered on first registration. However this note may require to be deleted where the solicitor requires same deleted and the root of title e.g. Land Commission...