O'Connell Street, Dublin, Ireland

O'Connell Street, Dublin, Ireland

History


1.1        Historical attempts to set up Registers of Ownership


The benefits of having a register of owners of land are quite apparent, and many futile attempts were made to accumulate such registers before effective systems were established.

1.2        The Domesday Book


When William the Conqueror took control of England, he required all the land and other assets of the realm, and their owners, to be written down. The record thus assembled was called the Domesday Book. If this had been kept updated, it would have been a Register of Title. However, the record was not updated, but kept in its initial form, and soon lost relevance, except to historians.

1.3        European Cadastres


Sweden is an example of a European country that has operated a registration system for centuries. It introduced its cadastre as long ago as the 16h century, when its feudal system (involving rents and services payable by nobles to the crown) was superseded by a system whereby land owners paid a land tax. A register of Real property Units was established, and the tax payer of each unit was recorded. Entry in this cadastre became conclusive proof of ownership of land. A Real Property Unit could consist of more than one Parcel. The system, duly computerised, remains in operation today, but has layers of complexity laid upon it by development over the centuries, and now cries out for reform.

1.4        The Down Survey


After Cromwell’s re-conquest of Ireland, two thirds of the land of Ireland was confiscated and granted to Soldiers as pay for their services, and to Adventurers, who had advanced money to finance the war.

For the purpose of this Plantation a contract was given to Sir William Petty to map the confiscated land, and this map was used for the purpose of allotting the land. The former and the new owners of each holding were recorded. The survey (called the “Down Survey”) was completed in 1655 and the resulting map said to be “the most exact that ever yet was made of any country” (attributed to John Evelyn, 1620 – 1706).

Like the Domesday Book, it was not kept up to date. When Petty was finished his work, he handed over the documents to the office of the Surveyor General, where they were filed away and forgotten, just like the Doomsday Book.

1.5        Land Scams and Frauds


Many of the Cromwellian soldiers and adventurers had no intention of settling in Ireland, and a brisk trade in Irish land ensued, where many speculators accumulated large holdings. Land scams and frauds were common: speculators would sell the same land more than once and disappear with the dishonest profit.

1.6        The Registration of Deeds (Ireland) Act 1707


Legislation was clearly needed to eliminate the land scams and secure the land titles. The result was the Registration of Deeds (Ireland) Act 1707. (The Preamble to the Act also states that one of its objectives was to prevent the secret conveyance of land to Catholics, who were debarred by law from owning freehold land. Text found in  Irish Conveyancing Statutes by JCW Wylie).

Under this Act, a person who has acquired an interest in land by deed can register his deed in the Registry of Deeds. A registered deed will prevail over an unregistered deed. Furthermore, registered deeds will rank in the order of the date of their registration.

1.7        The Information Recorded in the Registry of Deeds


The Registration records:

  1. The time and date of the registration (replaced in the 2006 Act by a serial number that more precisely records the sequence of registration);
  2. The date of execution of the deed;
  3. The nature of the Deed, e.g., Conveyance, Lease, Mortgage, Release of Mortgage;
  4. The name(s) of the Grantor(s) (i.e., the persons by whom the land is granted or conveyed);
  5. The name(s) of the Grantee(s) (i.e., the persons to whom the land is granted), and
  6. A description of the land granted.

1.8        Effect of Registration of a Deed


The Act provides that a registered deed will prevail over an unregistered deed.

Therefore, if

  • John Smith has conveyed land to you, and
  • you register your deed, but
  • John Smith has also conveyed the same land to Paddy Murphy, who has not registered his deed, then

 You are the owner, because your registered deed will prevail over Paddy Murphy’s unregistered deed.

If Paddy Murphy has also registered his deed, the Act provides that the first of the two deeds to be registered will prevail over the second deed.

1.9        The Doctrine of Notice


The courts held that the Registration of Deeds Act should not be used as an engine of fraud[1]. If, therefore, you took a conveyance of land knowing that it was already transferred to someone else, and then registered your deed with the intent of defeating the other person, the court would declare that your deed was void, and the original grantee would be given the land. You were said to have notice of the first deed and the legal principal was that a second grantee, with notice of the first grant, would not be given priority over the first deed by virtue of the registration.

Whether the concept should be extended beyond actual notice, i.e., where a purchaser actually knew of the existence of the previous deed, or should be extended to constructive notice, and, if so, to what extent, was often considered by the courts. An interesting discussion of this can be found in Mcallister (1973), unfortunately out of print. Since Registration of Deeds is being phased out, the question may not arise again.

1.10    Inefficiency


The main search on the Registry of Deeds is a search against the Grantor. Since the index of names covered the whole country, it was a complex and time-consuming matter to discover if an entry against a similar name to your grantor related to your property. This problem was eased in 1833, when the County was added to the details recorded in the index.

There was, also, a Lands Index, which could be canvassed to supplement a search on the Names Index. However, searches on this were not conclusive, and it was closed in a cost-saving exercise in 1946.

1.11    The Spanish system of Registration of Deeds


A superior system of Registration of Deeds was implemented in Spain, in 1861. There, while there was no map, each deed was filed according to its location. As a result, all deeds relating to a particular property were found in the same box, and searching was much more efficient. In recent times, a map has been added.

1.12    The Judgment Mortgages Act 1850


In 1850 and Act (the “Judgment Mortgages Act”) was passed that allowed judgments obtained in a court of record to be secured on the judgment debtor’s land. This was achieved by the creditor lodging an affidavit, authenticated by an officer of the court, in the Registry of Deeds setting out the fact of the judgment, the title of the court proceedings, the amount of the judgment and any interest due, and specifying the details of the land of the judgement debtor to be charged. The amount of the judgment and interest due at the date of filing the affidavit were declared to be a mortgage on the debtor’s interest (if any) in the land specified.

It was found that a judgment mortgage affected the judgment debtor’s beneficial interest in the land. If, therefore, the affidavit of judgment mortgage was lodged in the Registry of Deeds after the judgement debtor had sold the land, but before the conveyance on sale was registered, the judgment mortgage did not affect, since the beneficial ownership had already moved from the judgment debtor to his purchaser.

Unlike a mortgagee by deed, the owner of a judgment mortgagee did not have power to sell the mortgaged land, but, where the judgement debtor defaulted in payment of the amount due, the creditor could go back to court for an order for sale of the land.

When Registration of Title was introduced (under the Act of 1891) provision was made for the registration in the Land Registry of Judgment Mortgages affecting registered land.

The Law relating to Judgment Mortgages was brought up to date in 2006 and is now governed by the Act of 2006.

1.13    Sir Robert Torrens


Robert Torrens, born in Cork and a graduate of Trinity College, Dublin, presented the Real Property Act of 1858 in South Australia, which introduced land registration to that continent and, subsequently, much of the English-speaking world. He left Australia, and settled in England, where he also championed registration of title.

1.14    The Record of Title Act 1865


A first attempt to introduce Registration of Title in Ireland was made in 1865, with the passage of the Record of Title Act, drafted by Robert Torrens.

Legislation had recently been passed to facilitate the sale of insolvent landlord’s estates, beginning with The Incumbered Estates Court Act 1849 and culminating (after 4 amending and extending acts) with The Landed Estates Court Act 1858.The Landed Estates Court established by this Act (incorporating the functions and powers of the court set up by the previous Act) had power to sell land and to give purchasers from it an indefeasible title.[2]

The Record of Title Act (see Wylie's book Irish Conveyancing Statutes referred to above) allowed persons who had received conveyances from the Incumbered Estates Court and the Landed Estates Court to register their titles. However, the system was a failure and only a relatively small number of titles were registered. The reasons for its failure were:

  • Registration was voluntary;
  • No special organisation was set up to administer the system; registration was effected in the office of the High Court of Justice;
  • The court officials discouraged applications for registration, informing applicants that the registration was not necessary;
  • Lack of support from the leaders of the legal profession.

1.15    The Settled Land Acts 1872 – 1890


While the Landed Estates Court Act allowed settled land to be sold by the intervention of the courts, the Settled Land Acts were introduced to enable settled land to be sold in all circumstances, and, generally, without the necessity of going to court. These Acts gave life tenants, and other categories of limited owners, power to sell the fee simple estate. They provided for the payment of the proceeds to Trustees (called Settled Land Act Trustees). Again, see Wylie's book for text of the Acts).

Following the passing of these Acts, leading lawyers, including Dodgson Hamilton Madden, changed their stance from opposing to supporting Registration of Title, because they now saw that the system could be effective.

1.16    The Land Purchase Acts


Beginning in 1870, legislation was passed that allowed the government to provide money for the purchase of land from landlords and the vesting of the land in the former tenants. This process gave rise to a number of problems:

  • The tenant farmers were previously outside the scope of the Registry of Deeds. Evidence of their title was previously a note in a register of tenants kept by the landlord, if any. The Registry of Deeds was creaking at the seams to cope with the amount of names already on the Indexes. It would not be able to cope with the huge increase in business that tenant titles would bring on stream.
  • The tenant farmers were used to a system whereby all the children of an owner became entitled on his death. The principle of primo-geniture, which applied to freehold succession, was bound to create problems.
  • Unregistered conveyancing was complex and involved considerable legal expense, which was beyond the means of small holders.
  • The purchase money advanced by the state was to be repaid by the tenant purchasers over a period of years. The state authorities were keen to have a system in place that secured the payment of these Land Purchase Annuities.

1.17    The Local Registration of Title Act 1891


To solve the problems associated with the Land Purchase Acts, Dodgson Hamilton Madden, then Attorney General, presented the Local Registration of Title Bill, and it was passed by Parliament in 1891. This provided the compulsory registration of all land bought under the Land Purchase Acts and the voluntary registration of any other land. By “compulsory” we mean that the land was not deemed to vest in an owner until he was registered.

A central office of the Land Registry was set up in Dublin, and a local office in each County. Initially, registration was effected in the Local Office, which sent a copy to the Dublin office, but this was reversed in 1936 when the service was centralised.

The text of the statutes up to 1998 can be found in Wylie's book: Irish Conveyancing Statutes. Acts passed by the Irish Parliament since 1922 can be found (free of charge) in the Irish Statute Book produced by the Office of the Attorney General of Ireland.








[1] Insert case reference
[2] After the economic prosperity of the 18th century, the 19th century had brought economic disaster for landlords, arising from the depression after the Napoleonic Wars, the fragmentation of tenancies due to a population explosion, the inability to compete with low-cost American grain, and the Great Famine of 1845 to 1848. The landowners had tied up their lands in settlements with the objective of keeping it in the family: these settlements made it impossible to sell the land without the assistance of special legislation: hence the Incumbered Estates Court Acts and their improvement in the Landed Estates Court Acts.
 

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