Guidelines to Land
Registration in Ireland
Presented by Proinnsias Ó Cillín BL, BSc (IT), MSc,
Land Registration Consultant
1.
Changing Times
2.
Popular Queries
3.
Avoiding Queries
4.
Fundamental Mistakes
5.
The NCT Attitude
6.
Solicitors' Exposure
7.
Required Certification of Title
8.
Qualified Title
9.
Conversion of Title
10.
Adverse Possession
11.
Documentary First Registration
12.
More Changes Coming
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3. Fundamental Mistakes
Invisible
Mistakes: the really important ones
The
important mistakes that solicitors make are those that are invisible to
the Land Registry. The
queries listed in the previous screens relate to technical matters. If a
document is wrongly executed, or a Land Certificate is not produced, or
the amount omitted from a mortgage, then a query will be issued, and the
registration will not be effected by the Land Registry until the error is
corrected.
But,
if a solicitor puts the wrong person on the register, the Land Registry
queries won’t save him.
Fundamental
Mistakes
Examples
of fundamental mistakes made by solicitors are:
- Certifying
the title of a person who does not have adequate title.
- Putting
a Judgment Mortgage on the wrong person’s Folio.
This is a libel on the title of the registered owner affected.
It is not easy for the erring solicitor to make amends.
Since the audit trail of registered transactions must be
maintained, the offending Judgment Mortgage can’t be erased.
On cancellation, the offending entry is struck out and a note
written beside it indicating that the entry is cancelled. The entry can’t say “Engrossed in Error”, because
there was no error by the Land Registry.
- Not
adequately catering for the “other” next of kin or beneficiaries
in registering under a transmission.
In the case of a death since 1959, the Land Registry does not
ask any question as to why any assent or transfer by a legal personal
representative is made (other than the form of the document and the
technical feasibility of what is proposed).
Since no legal estate is now deemed to vest in next of kin,
formal releases under seal are not required.
However, the solicitor needs to have documents on his file that
show that the transaction was legally correct.
- Taking
a transfer from the wrong person, usually a son instead of a father,
where both have the same name.
- Complying
with erroneous queries. Perhaps
80% of queries issuing from the Land Registry are correct and properly
raised. These should be
complied with. Another
10% are possibly unwarranted, if helpful.
These may also be complied with.
But some percentage of queries are, inevitably, erroneous.
To comply with these may damage your client’s property
rights. An example that
comes to mind is a case where a transfer of part by two tenants
in common to themselves as joint tenants was queried on the basis that
an owner can’t transfer to himself.
The correct response was, not to comply to the query, but to
point out that the deed was correct.
Proinnsias Ó Cillín Land
Registration Forum
Societal
Information System (project 1997 - 1999)
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