There are two systems of registration in Ireland:
- The Registry of Deeds
- The Registration of Title
Registry of Deeds
- The existence of documents is noted
- Registration gives no validity save for a judgment mortgage
- Not conclusive of ownership
- Title not guaranteed by the State
- Property is identified by parcels and maps in deeds
- Title guaranteed by the State
- The effect of the document is noted eg ownership
- Title and folio are conclusive
- The map is accurate and complete and maintained by Land Registry, accessible online
- All holdings identified by a plan number
First registration means entering title to lands in the register of lands that have been unregistered up to that point. Registration is compulsory in the State now. If registration is not carried out, then title does not vest in the party who holds under a conveyance or assignment.
First registration based on documentary title
First registration based on title will require:
- A statement of title in chronological order giving a summary of the documents and events and facts on which the applicant is claiming the title to the property. This must commence with a good root of title.
- The statement of title will be contained in Land Registry Form 1 or Form 2 and it should give full information on any points that would be raised by a purchaser.
- Your application will be under rule 19(2) of the Land Registry rules.
- A good root of title is at least 15 years old.
- Therefore, the title to be shown should be a period of at least 15 years commencing with a good root of title.
However, if the value of the property is less than €1,000,000 then:
Rule 19 (2) Where the market value of the property the subject of the application is shown to the satisfaction of the Authority not to exceed €1,000,000 at the date of the application, the title to be shown by the applicant may commence with a conveyance or assignment on sale made not less than 12 years prior to the date of the application that would be a good root of title on a sale under a contract limiting only the length of title to be shown. (Source: Land Registration Rules 2012).
Rule 19(3) provides:
(3) On a sale where the purchase money of the property does not exceed €1,000,000, the Authority may, if it thinks fit, register a title as absolute or qualified or good leasehold on production of a certificate by a solicitor, at the expense of the applicant in Form 3, adapted as the case may require, and an application map.
(We will take a look at the form 3 procedure later in this article).
The application requires the lodging of all of the original documents of title as set out in rule 15(1)(b) and 16(2)(b) of the Land Registration rules.
Application for first registration where title deeds are missing is a common problem which can be overcome. Strenuous efforts should be made, however, to investigate if any copies of documents are available from previous transactions and an affidavit dealing with missing title deed will be necessary.
The application for first registration based on documentary title will need to be made on Land Registry form 1 (freehold) or Land Registry form 2 (leasehold).
Form 1 and 2 contain the necessary paragraphs of the affidavit of discovery and a form 16 (affidavit of discovery) is not necessary in these cases. Therefore, an application for first registration based on documentary title needs:
- Form 1 or form 2 and
- The documents relating to title and commencing with a good root of title
Note: form 1 and form 2 contain the necessary averments which are found in form 16 (affidavit of discovery) therefore a separate form 16 is not necessary provided the relevant averments are in form 1 and 2.
Searches must also be carried out relating to the title in the possession of the applicant. Full Registry of Deeds searches should be lodged along with judgment office and companies’ office searches (where appropriate).
Burdens which are evident from the examination of title must be entered on the freehold folio that is opened. If appurtenant rights are to be registered, title to those rights must be shown and an appropriate map which complies with Land Registry requirements submitted.
The application map must comply with the Land Registry mapping requirements-that is, a PRA approved map.
Title to be registered
The title which is normally applied for is “absolute title”. This can be given where the title is approved by the Property Registration Authority.
“Good leasehold title” is used where the leasehold interest is approved by the PRA but where the lessor’s title has not been established. This is the title that will be applied for in most cases of a leasehold interest.
“Qualified title” is title registered subject to specific limitations which are entered on the register.
If an application is not successful in establishing absolute or qualified title the PRA may register title as “possessory title”.
The forms for application for first registration
An application for freehold title should include:
- An affidavit in Form 1 of the Land Registration Rules
- A statement of title
- A schedule of documents
- An application map
- All original documents and deeds
- All searches
- Form 17
An application for leasehold title will involve the same forms save for using Form 2 rather than Form 1.
An application using the Form 3 procedure if there is a recent sale (in the last two years) where the consideration does not exceed €1,000,000. This modified form of first registration involves the solicitor vouching and certifying the title of the purchaser.
There are many circumstances where the Form 3 procedure is inappropriate, including:
- Where title is based on voluntary conveyance/assignment or assent on death
- Where any part of title is based on possession
- Where the conveyance/assignment is over 5 years old
The above list is not exhaustive.
The documents to be lodged include:
- Form 3
- Original deed of conveyance/assignment
- Mortgage (if any)
- A copy of the lease, if it is a leasehold interest
- A PRA approved map
- Form 17
First registration of title based on possession
There are two elements to an application for first registration based on possession:
- Possession for the required statutory period (usually 12 years) must be proved
- The title against which adverse possession is claimed must be identified
This application is based on possession and not to be confused with an application for registration based on adverse possession under section 49 of the Registration of Title Act, 1964. The section 49 based application deals with adverse possession of registered land only. The land is already registered, and the applicant is claiming the interest by adverse possession against the registered owner.
Form 6 of the Land Registration rules is the correct form for this application-based on adverse possession-while Form 5 is the correct one for registration based on possession.
Possession of land involves actual occupation of the land, and/or receiving the rents and profits out of the lands and generally performing acts of ownership. This involves dispossession of the owner.
It is for the applicant to prove the facts on which his application is based.
If an applicant can prove possession for the statutory period but there is difficulty proving the title against which adverse possession is claimed the applicant can apply for possessory title from the word go.
When the property has been registered for 15 years the possessory title can be converted on registration of a transfer for valuable consideration to absolute (or good leasehold).
The statute periods of possession are:
- For a person: 12 years
- For state property: 30 years
Rule 17 of Land Registration rules:
Application for first registration based on possession
17. Where an application for registration of ownership of property is based on possession, or where the applicant has no documents of title in his/her possession or under his/her control in relation to such property, and the Authority is satisfied on inquiry or otherwise that the applicant is in possession or in receipt of the rents and profits of the property, the application may be made in Form 5, with such modifications as the case may require.
Adverse possession v non-adverse possession
Adverse possession must be possession that is open, unconcealed and unequivocal. There is no adverse possession where acts are equivocal-for example, permissible grazing of lands.
Animus possidendi is required for adverse possession and involves the intention to acquire the property and involves the necessity to exclude the true owner.
Possession in every case will be determined with reference to the particular circumstances of the case. This will depend on the land itself, the natural use of the property, the course of conduct of the proprietor, and other factors.
The intention of the true owner is important as a squatter cannot dispossess a true owner unless the squatter’s use of the disputed land is inconsistent with the true owner’s purpose for it. For example, the true owner may be happy to do nothing with the land for a number of years but intend to use it in the future.
Possession of land implies actual occupation of the land, and/or receiving the rents and profits out of the lands and performing acts of ownership in relation to the land that are consistent with the interest claimed. This involves dispossession of the true owner.
Courts have interpreted disputes in this area liberally in favour of the dispossessed owner.
Valuation office records and certificates do not prove title but may be useful evidence to support an application.