The Conveyancing Committee meets regularly with the PRA to discuss practice issues that impact on conveyancing practitioners. Some particular situations were raised with the PRA and, following submissions made by the committee, the position on them is as set out below.
Land Registry errors in registration
There is a Quality Unit in the PRA that deals with historic cases of Land Registry errors in registration. These cases are in a queue and are dealt with chronologically by re-lodgement date.
For new cases where the Land Registry has rejected a dealing in error or where an error in registration is the error of the Land Registry, the PRA has agreed that it is reasonable to request that registration be expedited when the dealing is re-lodged in the Land Registry. The solicitor should write back to the person in the Land Registry who rejected the dealing or who completed the dealing, pointing out the mistake. The covering letter to the Land Registry should be as specific as possible and it should set out the reason why it should not have been rejected or setting out details of the error in registration, and it should contain a request that the re-lodged dealing be expedited in the circumstances.
Access to instruments by receivers and mortgagees in possession
A receiver appointed under a mortgage to act as the attorney of the registered owner has access in the same way as registered owner to all instruments on a folio – under Rule 159(1). This is subject to proof of appointment and lodgement of a copy of the mortgage showing that the receiver has the necessary powers under the mortgage.
A mortgagee in possession (MIP) or the owner of a charge selling on the property that is the subject of the mortgage is in a different position to a receiver. They are entitled to a copy of their mortgage document under Rule 159(2) - but that rule would not entitle them to anything else on the folio. However, Rule 159(9) may be of assistance and an application can be made under this rule making the case as to why the MIP or owner of a charge needs any other documents from the instrument and setting out what the special circumstances are. The PRA has wide discretion under this rule.
Access to dealing pending / access by a notice party
Pending dealings are not subject to Rule 159, but are subject to data access requests and freedom of information requests. Practitioners can make such requests as set out in the PRA Data Protection Policy – details on www.prai.ie or the freedom of information legislation as appropriate.
The PRA has agreed that a registered owner served with a notice of a dealing pending is entitled to know the nature of the dealing and to be provided with sufficient information to allow them to deal with it and to object to the application contained in the dealing pending to protect their ownership if necessary.
The PRA will serve notice of the pending dealing on the registered owner. A copy of the dealing/affidavit will not be included automatically with the notice by the PRA – it must be specifically requested by the registered owner. The registered owner should ensure that any objection is made within the 21-day statutory period.
PRA requirement for folio number in stamping certificate
The Land Registry acknowledges that there may be some cases where a folio number cannot be entered in the stamping system (e.g. ‘conveyance not liable’, where the vendor’s title is not yet registered). However, where there is a folio number available the Land Registry has said it must be entered by the filer or the dealing/application for registration will be rejected. The Land Registry says in the case of a transfer of part, the number of the parent folio should be entered. In the case of the transfer of multiple folios, the stamping system allows for up to five folio numbers to be entered. The Land Registry requires that however many folio numbers are available should be entered up to the maximum five folio numbers. Revenue has recently suggested that, where there are more than five folio numbers involved, the first four should be entered and the text “& Others” should be entered in the field for the fifth folio number, and the PRA has indicated that it does not have any difficulty with this.
The committee has previously indicated its disagreement with the Land Registry on this issue and is still of the view that, if entry of a folio number is not compulsory in the stamping system, it should not be compulsory in the registration system.