Compulsory registration and family law related assurances

As a result of orders made by the Minister for Justice and Equality under section 24 of the Registration of Title Act 1964 from time to time, most recently under SI no 516 of 2010, registration of ownership of land has become compulsory throughout the state:

1. In the case of freehold land, upon conveyance on sale,
2. In the case of a leasehold interest, on the grant or assignment on sale of such an interest.

Subsection (3) of section 24 provides that “conveyance on sale” and “assignment on sale” mean an instrument made on sale for money or money’s worth, by virtue of which there is conferred or completed a title in respect of which an application for registration as owner may be made, and include a conveyance or assignment by way of exchange where money is paid for equality of exchange and also include any contract, agreement, condition or covenant affecting the property comprised in the conveyance or assignment and entered into or made as part of, or in association with, such conveyance or assignment.

In divorce or separation cases under the Judicial Separation and Family Law Reform Act where orders are made by the court that include property adjustment orders (PAOs) providing for transfers of unregistered property from one party to another, or to a third party, it would be unusual for particular monetary considerations to be applied to the transfers.

PAOs will normally be found in composite orders dealing with other matters, such as maintenance, custody of children, etc, the composite order being a package. Assurances of property implementing such PAOs should recite that they are being made in implementation or in pursuance of the court order, and should go on to say that the property is being assured “in consideration of the premises”. This would seem to take the assurances out of the category of “conveyance on sale”, which would trigger compulsory first registration.

If the order did, in fact, provide that a particular property was to be transferred in consideration of the payment of a specific sum of money, then that sum ought to be set out as the consideration in the subsequent assurance, and that would presumably lead to the categorisation of the assurance as a “conveyance on sale” and trigger first registration.

Similarly, where a separation has been agreed but no proceedings have been issued, or proceedings have issued and have been compromised without an order being made, and there is an agreement that one party will pay the other for the transfer of an interest in property, that agreement can only be implemented and documented by an assurance of the property in consideration of the payment of the sum of money, and is clearly caught by the “conveyance on sale” rule. If, in such circumstances, no payment is contemplated, the assurance should recite the agreement to transfer, and the property should be assured “in consideration of the premises.”