Guckian v Brennan

JudgeGannon J.
Judgment Date01 January 1981
Neutral Citation1980 WJSC-HC 244
Docket Number[1980 No. 126 Sp.],No.126 Sp./1980
CourtHigh Court
Date01 January 1981





1980 WJSC-HC 244

No.126 Sp./1980



Judgment of Gannon J. delivered the 3rd day of march 1980


The plaintiffs are a husband and wife who are joint owners of a dwelling house at 251 Grangemore, Raheny, Dublin 5, comprising a plot of ground of 9 perches in the townland of Grange, Barony of Coolock the subject matter of Folio 19851L of the Register of Leasehold Interests for the County of Dublin. The leasehold interest was created by lease dated the 28th of April 1972 from Merchant Banking Limited to Edward Parsons for the term of 250 years from the 29th of September, 1969 at the yearly rent of £20. Edward Parsons was registered as full owner on the 21st of August 1972 subject to a charge since released and to Sections 12 and 45 of the Land Act 1965. Sections 12 and 45 of the Land Act 1965are both provisions prohibiting or restricting the alienation of land or of any part of it. The plaintiffs became registered as full owners subject to these statutory provisions and to a charge in favour of First National Building Society on the 18th of August 1978 by virtue of Land Registry Instrument No. R8175/78 upon transfer from Edward Parsons. On the 7th December, 1979 the plaintiffs entered into an agreement to sell the property to the defendants. In the course of investigation of the title the purchasers required the vendors to furnish evidence that the transfer by assignment to them by Edward Parsons, the registered owner and original lessee, is unaffected by Section 3 of the Family Home Protection Act 1976. This I understand is the purport of Requisition 63 (7) in the Requisitions on Title, as submitted in lieu of a more precise additional sub paragraph in Requisition No. 52. The plaintiffs' reply to this Requisition is:

"Not necessary. The vendor has been registered as full owner of the property in the Land Registry and the register is conclusive".


The purchasers are dissatisfied with this reply. On this issue the plaintiffs applied to the Court by a special summons under the provisions of Section 9 of the Vendor and Purchaser Act 1874 for a declaration that this requisition has been sufficiently answered and a good title shown.


The necessity for a requisition of this nature is a consequence of the passing on the 12th July 1976 of the Family Home Protection Act (No. 27) 1976. As the plaintiffs are joint owners the defendants are not concerned with the possible effect of the 1976 Act on their contract with the plaintiffs or on the intended instrument of transfer to them. But the defendants apprehend that if the assurance by Edward Parsons to the plaintiffs was affected by the 1976 Act so as to have been avoided or invalidated under Section 3 of that Act the plaintiffs could not make good title on this sale. Because their title is registered under the provisions of the Registration of Title Act 1964the plaintiffs consider that the defendants' enquiry is unnecessary and precluded by virtue of Sections 31 and 55 of the 1964 Act.


The Registration of Title Act 1964by Section 5 repealed the Local Registration of Title (Ireland) Act 1891 and the Registration of Title Act 1942, but did not depart from the purpose or scheme of those Acts and re-enacted the basic sections. Section 31 of the 1964 Act corresponds to Section 34 of the 1891 Act and in sub-section (1) provides:-

"The register shall be conclusive evidence of the title of the owner to the land as appearing on the register and of any right, privilege appurtenance or burden as appearing thereon: and such title shall not, in the absence of actual fraud, be in any way affected in consequence of such owner having notice of any deed, document, or matter relating to the land; but nothing in this Act shall interfere with the jurisdiction of any Court of competent jurisdiction based on the ground of actual fraud or mistake, and the Court may upon such ground make an Order directing the Register to be rectified in such manner and on such terms as it thinks just."


Sub-section (2) of Section 31 is not pertinent in these proceedings. Section 51 provides for the mode of transfer of ownership and relates to the effect of registration of the transferee as full owner of the property registered on the Register of Leaseholds. Section 55 sub-section (1) is as follows:

"On the registration of a transferee of a leasehold interest as full owner with an absolute title, the instrument of transfer shall operate as a conveyance by deed within the meaning of the Conveyancing Acts, and there shall vest in the registered transferee the leasehold interest so transferred, together with all implied or express; rights, privileges and appurtenances attached to it, subject to -"


a (a)the burdens, if any, registered as affecting the interest,


b (b)the burdens to which, though not registered, the interest is subject by virtue of Section 72, and


(c) all implied and express covenants, obligations and liabilities "incident to the interest transferred, but free from all other rights, including rights of the State".


The matter of concern to both plaintiffs and defendants in these proceedings as vendors and purchasers respectively of registered leaseholds is whether or not such interest, of a spouse who is not an owner, as may arise under the Family Home Protection Act 1976is a burden coming within paragraph (b) sub-section (1) of Section 55 Or falls within "all other rights" free from which the full ownership with an absolute title may be registered. Such last mentioned rights may affect the registered ownership by virtue of sub-section (2) of Section 55 in any case in which the registration is effected pursuant to a transfer made without valuable consideration. The unregistered burdens which by virtue of Section 55 (1) (b) affect the transferee from the registered owner of leasehold registered property are set out in Section 72 of the Registration of Title Act 1964. Sub-section (1) of Section 72 provides:

"Subject to sub-section (2), all registered land shall be subject to such of the following burdens as for the time being affect the land, whether those burdens are or are not registered, namely -" Of the seventeen classifications which follow only those at paragraphs (j) and (q) were referred to in the course of this hearing. These read as follows:

"(j) the rights of every person in actual occupation of the land or in receipt of the rents and profits thereof, save where, upon enquiry made of such person, the rights are not disclosed; and (q) burdens to which Section 59 or 73 applies".


Sub-section (3) of Section 72 provides:

"Where the existence of any such burdens is proved to the satisfaction of the Registrar, he may, with the consent of the registered owner or applicant for registration, or in pursuance of an order of the Court, enter a notice thereof on the register."


As sub-section (2) of Section 72 deals only with paragraphs(a), (b) and (c) of sub-section{l)it is unnecessary to consider it. As Section 73 deals with mines and minerals it is not pertinent in these proceedings. But Section 59 is of importance. It is as follows:


2 "(1) Nothing in this Act shall affect the provisions of any enactment by which the alienation, assignment, subdivision or subletting of any land is prohibited or in any way restricted.


(2) It shall be the duty of the Registrar to note upon the register in the prescribed manner the prohibitive or restrictive provisions of any such enactment; but such provisions shall be, though not registered, burdens on the lands under Section 72."


Section 3 of the Family Home Protection Act 1976, in cases, to which that Act applies, contains provisions by which the alienation of any land is restricted and may be prohibited. Sub-section (1) of that Section is as follows;

"Where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, then, subject to sub sections (2) and (3) and Section 4, the purported conveyance shall be void."


The expression "family home" is defined in Section 2 (1) of the 1976 Act as follows:

"In this Act "family home" means, primarily, a dwelling in which a married couple ordinarily reside. The expression comprises, in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides, or, if that spouse has left the other spouse, ordinarily resided before so leaving"


The word "dwelling" is defined in sub-section (2) of Section 2 in terms to include any portion of ground "attached to and usually occupied with" the dwelling. Having occupation of the property as a dwelling is therefore an essential qualification for the spouse seeking to rely on the provisions in the 1976 Act restricting alienation of the property. By Section 13 of the Family Home Protection Act 1976it is enacted that: "Section 59 (2) of the Registration of Title Act, 1964(which refers to noting upon. the register provisions of any enactment restricting dealings in land) shall not apply to the provisions of this Act".


The reason the defendants consider the reply to their requisition to be inadequate is that the property the subject of the contract now is a family home and may have been a "family home" at the time of transfer to and registration of the plaintiffs as owners on the 18th of August 1978. The defendants apprehend that Edward Parsons may have been a married man, and if the previous written consent of his wife had not been obtained the transfer by Edward Parsons to the plaintiffs would,...

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