Transfers of Registered Land

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1. Transfer of registered property by the registered owner to a purchaser for value

The essentials of a deed of transfer are:

1.1 That it bears revenue duty and a particulars delivered stamp, if not exempt from same or from 1st December 2009 is accompanied by a Stamp Certificate (e-Stamping).

1.2 The deed of transfer must be dated on or after the date of registration of the transferor. If it is dated prior to registration of the transferor, see paragraph 8 below re transfer by a person entitled to be registered as owner.

1.3 Transferor must be identified as the registered owner. For example John Smith, the beneficial owner, etc. is not sufficient. If the transfer omits the identification, write to the solicitor to certify that the transferor and the registered owner are identical.

1.4 A transfer must contain an operative part i.e. “hereby transfers all the property to Thomas O Reilly”. Sometimes in transfers of freehold property the words “in fee simple” or “absolutely” are added. Words of Limitation are not necessary in transfers executed on or after the 1 January 1967 (date of commencement of the Registration of Title Act 1964).

A transfer of freehold property to “Thomas Reilly” now makes Thomas Reilly a tenant in fee simple unless:

(i) the transferor has not got power to transfer the fee simple, or

(ii) a contrary intention appears in the transfer (see section 123 of the Registration of Title Act 1964)

but prior to 1967, a transfer of freehold property “to Thomas Reilly” gave him only a life estate. In order to give him a fee simple the words “to Thomas Reilly and his heirs” or the words “to Thomas Reilly in fee simple” had to be used. These words are known as words of limitation. No other words would do. If a transfer of freehold property dated prior to 1967 is now lodged, it must contain words of limitation.

In a transfer of leasehold property, words of limitation were never necessary.

No words of limitation were or are necessary in a transfer to a corporation aggregate e.g. a limited company. No words of limitation have ever been necessary since a corporation never dies. A transfer of the full ownership to a corporate sole required the words of limitation “successor” or successors and assigns” added to the limitation prior to 1 January 1967.

These words are not now required for transfers of registered land (or for conveyances of unregistered land executed on or after 1st December 2009, section 67 of the Land and Conveyancing Law Reform Act 2009). An example of a corporation sole is a Minister of State.

1.5 The address and description of the transferee in the State i.e. within the 26 Counties must be given. Usually when a person resides outside the State the address of the solicitor is given for the purpose of service of notices.

1.6 Where the Transferor is an individual, the transfer should be stated to be signed and delivered by the Transferor and the signature attested. [Sealing by an individual not required for conveyances or transfers executed on or after 1st December 2009, Section 64 of the Land and Conveyancing Law Reform Act 2009]. Bodies corporate having a seal, should execute under such seal. If the incorrect folio number or county is quoted in the operative part of the deed the transfer should be amended and re-executed by the parties and not merely be initialled. If the transferor executes the transfer by affixing his/her mark, an affidavit of attesting witness in Form 20 of the Land Registration Rules 2012 should be lodged. Rule 54 of the said Rules enables us to dispense with the Form 20 affidavit if the required information referred to in Rule 54 is set out in the attestation clause of the deed.

Unless the transferee is charging the property or granting rights the deed need not be signed by him/her. If a charge or other rights are being reserved by the transferor, the deed must be signed, sealed and delivered by the transferee as well as by the transferor [reservations will operate fully whether or not the grantee has executed a conveyance or transfer on or after 1st December 2009, section 69 of the Land and Conveyancing Law Reform Act 2009].

2. Transfer of registered property to two persons as joint tenants

Form 19 of the Land Registration Rules 2012 refers.

If the transfer is to “A” & “B” simpliciter or to “A” & “B” as joint tenants, they are to be registered as follows:
“A (farmer) and “B” (nurse) both of Spiddal County Galway are owners”

If however any further words are added such as “to “A” & “B” “(in equal shares as joint tenants)” or “(jointly and between them)”, they may be joint tenants or tenants in common.

In such cases the deed should be amended to express the intention of the parties or an assent to their registration as “tenants in common” or “joint tenants” should be lodged. Such words are known as words of severance. Other words of severance are “to be divided amongst” “equally” ” between”. If the words show that the tenants were to take a distinct share in the property a tenancy in common is created.

If a registered full owner wishes to transfer to him/herself and another as joint tenants s/he may do so in the following form:
“John Smith” the registered owner hereby transfers ……….to him/herself the said “John Smith and “Mary Smith”. There is no need for a nominal trustee.

On the death of a joint tenant the whole property goes to the survivor(s) and on the death of the last survivor the whole property goes to the person(s) entitled on testacy or intestacy of the last survivor.

3. Transfer of registered property to two or more persons as tenants in common

Such transfers are effected by use of the appropriate words of severance i.e. “to A & B as tenants in common in equal shares” or “to A & B in the following shares as to A one third, as to B one third, as to C one third”.

If a tenant in common wishes to transfer to him/her self and another as tenants in common, there is no need for a nominal trustee. An undivided moiety is an undivided half share.

If “A” transfers his “undivided moiety” to “B” the registration to be effected is as follows :
“B (Farmer) of Spiddal, County Galway, is owner as tenant in common of the undivided moiety of which “A” was registered at Entry No 1″

If “A” transfers his undivided moiety to “B” the owner of the other undivided moiety, then if there is no burden or charge to prevent the two undivided moieties merging “B” should be registered as owner of the entire property in one entry. Merger would be prevented by a burden or charge affecting either undivided share only.

When one tenant in common dies, his/her share does not survive to the others but goes to those entitled on his/her testacy or intestacy.

4. Transfers as between joint tenants and tenants in common

If two joint tenants transfer to themselves as tenants in common they may do so without the need for a nominal trustee. Similarly, two tenants in common may transfer to themselves as joint tenants without the need for a nominal trustee. If however each tenant agrees to take a specific part of the whole as exclusively his/her property they are no longer joint tenants or tenants in common. The estate has been partitioned. If one joint tenant of three transfers his/her share to a stranger or to one of the others the transferee becomes a tenant in common with the others. From the 1st December 2009, under section 30(1) of the Land and Conveyancing Law Reform Act 2009, any conveyance, or contract for a conveyance, of land held in a joint tenancy, or acquisition of another interest in such land by a joint tenant without the prior written consent of the other joint tenant(s) is void both at law and in...