Leases

Original version<a href='/vid/leases-907695881'>Leases</a>
1. Registration of Lease as a burden – General

1.1 Registerable as a burden
Before registration of a Lease, it must be ascertained that the Lease comes within section 69(1)(g) of the Registration of Title Act 1964.

It should be noted that section 2 of the Landlord and Tenant (Ground Rents) Act 1978 prohibited the creation of any fresh leases of private residential dwellinghouses where the lessee would, apart from this section, have a right under section 3 of the Landlord and Tenant (Ground Rents) Act 1967 [1967 Act] to enlarge his/her interest into a fee simple [see paragraph 2.2 of Practice Direction “Ground Rents”].

  • Leases can of course be created in respect of all other types of property [e.g. flats, commercial or development property and generally of property on which there is no private dwellinghouse].
  • Leases under the Housing Acts 1966 to 2015 of private dwellinghouse’s for terms of up to 20 or 25 years at market rent are not prohibited by section 2 as the lessee would not have a right to enlarge its interest into a fee simple under section 3 of the 1967 Act. Therefore the PRA can
    • register a note of such a lease for up to 20 years under Section 72(3) of the Registration of Title Act 1964 [1964 Act] and can,
    • in relation to such a lease for 25 years, register as a burden under section 69(1)(g) of the 1964 Act and open up a leasehold folio .

Note also that section 2 of the Housing (Miscellaneous Provisions) Act 1992 provides [notwithstanding the provisions of the Landlord and Tenant (Ground Rents) Act 1978] that a person (including a housing authority) may grant a Shared Ownership Lease of a house.

Pursuant to the Housing (Miscellaneous Provisions) Act 2009 sections 2, 3 and 8 of the Housing (Miscellaneous Provisions) Act 1992 are repealed. Shared Ownership Leases can no longer be granted from the 12th September 2018 [Housing (Miscellaneous Provisions) Act 2009 Commencement (No. 2) Order 2018].

Shared Ownership Leases created prior to the commencement date may still be lodged for registration.

1.2 Categorisation of Leases.
Registerable Leases lodged for registration should be categorised as follows:

Leases of registered land dated on or after the 1st December 2009 being the date of commencement of the Land and Conveyancing Law Reform Act 2009.

Leases of registered land dated on or after the 26th May 2006 being the date of commencement of the Registration of Deeds and Titles Act 2006.Note the distinction between the first two categories is that pursuant to the Land and Conveyancing Law Reform Act 2009 a Lease of Registered Land on or after the date of commencement of the Act must be in a prescribed format. The prescribed format is LR Form 31 of the Land Registration Rules (S.I. 483 of 2012).

All other Leases affecting registered land and dated prior to 26th May 2006 and/or unregistered land regardless of date.

1.3 Documents to be lodged
Documents to be lodged are:

(i) For Leases of Registered Land Dated on or after 26th May 2006:

  • A completed LR Form 17 of the Land Registration Rules,
  • The appropriate Fee,
  • The Original Lease, [and if dated on or after 1st December 2009 in LR Form 31]
  • A Certified Copy/Counterpart of the Original Lease [original is to be returned under Rule 152 of the Land Registration Rules 2012]
  • Map.

(ii) For all other Leases:

Documents as above and additionally:

  • Affidavit of Discovery in LR Form 16 of the Land Registration Rules by the applicant for registration
  • Affidavit in LR Form 2 of the Land Registration Rules [if applicant other than the Original Lessee] by the applicant for registration
  • Appropriate Registry of Deeds and Judgment Searches.

Note – the Searches and Affidavit of Discovery to be dated within 3 weeks of the date of lodgement of the application in the Land Registry.

1.4 General Processing.
[See Mapping Practice Direction for mapping procedures and requirements].

On referral of the Dealing to the Mapping Branch, the mapping officer shall give the necessary references and description for the registration of the Lease [..as a burden or not as the case may be…] and for its registration in the Register of Leasehold Interests. References shall be given on the Certified Copy/ Counterpart Lease. If the original only is lodged, the reference shall be given on it.

The particulars for entry on the Register [new Leasehold Folio and Lease Burden] are to be taken from the Original Lease. If a Duplicate/Counterpart or attested copy is lodged, it may be filed on the instrument having been compared with the original.

In all cases, save when the lease purports to lease the mines and minerals, Part 1 of the folio shall state that: “The registration does not extend to the Mines and Minerals”. This note is to be entered whether or not such a note appears on the Freehold/Leasehold Folio. When there is a Lease of Mines and Minerals the case is to be referred to the Divisional Manager (see Rule 28).

A Folio with good leasehold title is to be drafted in all cases except in the case of a Lease of property registered with an absolute title. In the latter case a Folio with an absolute title is to be drafted.

2. Application for registration of a Lease as a burden on registered property where the Lease is dated on or after the 26th May 2006 and the consequent registration of the Original Lessee OR a Successor to the Original Lessee as owner on the register of ownership of Leasehold interests

The Original Lessee

All these applications are to be processed in the Dealing Sections.

On the 26th day of May 2006 the Minister for Justice Equality and Law Reform signed a Commencement Order in respect of, inter alia, section 58 of the Registration of Deeds and Titles Act 2006. This section amends section 51 of the 1964 Act and provides that the word “transfer” shall include a lease. Under the Registration of Title Act 1964 in the case of registered property, any lease of the property or part of it was deemed to confer an unregistered leasehold interest. Before any such interest could be registered it was necessary for the lessee to apply for first registration. Section 58 of the 2006 Act provides that where a registered owner of land leases the land or any part of it, the lessee shall be registered as owner of the leasehold interest in that land. The effect of this amendment to section 51 of the 1964 Act is to render leases of registered land to be of themselves registered land.

Accordingly in respect of leases wholly affecting registered land, [i.e. where all the property the subject of the lease comprises registered land] executed after the commencement date there will be no requirement to furnish an Affidavit of Discovery in LR Form 16 of the Land Registration Rules or Registry of Deeds and Judgment Searches. This practice also applies in respect of sub-leases lodged at the same time as, or at any time after, an application to register the head lease, where the property the subject of the head-lease is wholly registered.

Charges affecting such interest must be in the manner appropriate to registered land. Additionally from the commencement date of the Land and Conveyancing Law Reform Act 2009 [1st December 2009] charges on property must be in the prescribed format – LR Forms 49, 50, 51 and 52 of the Land Registration Rules 2012.

The date of registration of the Lease and any associated charge is the date of lodgement of the dealing (Rule 60 Land Registration Rules).

A Successor to the Original Lessee

It often occurs prior to the completion of an application to register a Lease that the property is sold and a second application by the new owner is presented for registration. Indeed it often happens that two or more transactions over time with property are presented in one application initially. Treat such applications as per an application by the original Lessee above but in addition to the documents required to be lodged all the disposition(s) from the Original Lessee to the current transferee/assignee applicant must be presented for registration.

Note that dispositions made prior to the completion of registration of the leasehold interest should be in the manner appropriate to registered land [i.e. shall be by way of transfer but assignment is acceptable] as must charges.

Note again the particulars for entry on the Register are to be taken from the Original Lease.

These applications are to be processed in the Dealing Sections and the date of registration is the date of lodgement of the dealing. (Rule 60 Land Registry Rules).

3. Application for First Registration of a Lease as a burden on registered property where the lease is dated prior to the 26th May 2006 and the consequent registration of the Original Lessee as owner on the register of ownership of Leasehold interests

The leasehold interest which it is sought to register in this instance will not become registered land until first registration is completed [i.e. until the new folio is opened and application completed]. Date of Registration on the new Leasehold Folio is the date of settling and date of registration of the Lease Burden is date of lodgement.

All these applications are to be processed in the Dealing Sections. Documents required are:

  • Affidavit of Discovery in LR Form 16 of the Land Registration Rules 2012 by the Original Lessee
  • Appropriate Registry of Deeds and Judgment Searches against the Lessee.

3.1 Mortgage of Leaseholds
The person(s) mortgaging the property leased must be identical with the Lessee(s) and the date of the Mortgage must be the same or subsequent to that of the Lease and an assent to the registration of same as a burden on the new leasehold Folio...

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