The Conveyancing Committee has decided to update its practice note published on 1 July 1997 in light of

• the introduction of compulsory registration, and

• the increased availability of title insurance.

Effecting registration of title in the Land Registry is central to today’s conveyancing practice and, in addition to the Committee’s guidelines published in the original practice note, the note below is intended to a general guide to practitioners:

PRAI - now Tailte Eireann (TE) - practice directions

First registration and other examiner cases

The TE practice direction on 'first registration and other examiner cases' states the following: “Where the original deeds are not forthcoming a satisfactory explanation must be obtained for the solicitor for the applicant, e.g. destroyed in a fire, burglary, robbery etc. Caution is to be exercised in all such cases, particularly in urban cases.”

Lost deeds

The TE practice direction on lost deeds dated 1 December 2009 states the following: “In Re Gardiner 110 ILRTR P21 (1976) it was held “that the Registrar of Titles should effect registration in any case where evidence on affidavit is produced which exhibits and identifies a copy of the lost deed and which clearly shows that:

1. the original deed was duly executed;
2. the parties to the deed subsequently acted on it according to its tenor;
3. that it has been lost or destroyed (and the basis for any such belief).”

To assist TE in considering the application it is desirable to also confirm, where the deponent is in a position to do so, any or all of the following by the said affidavit:

1. That exhaustive searches have been carried at locations where the missing instrument is thought likely to have been to no avail. Give clear details of such searches;
2. The deed has not been pledged, held as security or subject to any known lien or claim;
3. Stamp Duty was paid on the original deed (if this is known);
4. If upon the missing original deed coming to hand thereafter confirming same will be furnished to TE.”

In considering an application the TE practice direction on ‘first registration and other examiner cases’ states that “the examiner must be satisfied that:

1. exhaustive searches have been made, that copies of the memorials are produced together with a full copy of the missing deed (if available). S/he should consider serving notice on the bank’s standing committee. An advertisement in the newspaper will not be generally be required;
2. S/he must ensure that we [TE] have an indemnity from the applicant, indemnifying [TE] and the State against all loss that may be incurred by virtue of registering the title as absolute free from encumbrances without production of the original deed, and if possible from the person who lost it, i.e. solicitor, together with an undertaking to produce it to [TE] should it ever come into their possession. If an indemnity bond has been obtained and is available have same assigned to [TE]. If one is being made available consider having same issued in the name of [TE] in the amount of the current market value for whatever period over 12 years that is on offer;
3. Where the documents disclose a purchaser’s prior tenancy or other interest in the application property, the prior tenancy is to be dealt with, with a view to merging same or having it noted as a burden on the folio. It will usually be indicated by a small consideration in the deed. The title to the tenancy interest is to be investigated and explanations sought. If the replies are unsatisfactory the Examiner is to consider refusing the application or registering with a possessory title;
4. If the title deeds are numerous consider, on completion of the registration, having same tied with string rather than with rubber band and not pierced or defaced by a fastening pin, marking clearly the documents to be returned and those retained.”

Practitioners are reminded that there is a right of appeal under s19 (1) of the Registration of Title Act 1964 to the Circuit Court or the High Court against decisions of TE.

Conveyancing Committee additional guidelines

Affidavits

An affidavit should be obtained setting out in detail the circumstances surrounding the unavailability of the relevant document. This affidavit should also state that all reasonable efforts that have been made to locate the document;

Stamping and registration of deed in the Registry of Deeds

As with all applications before the Land Registry, evidence will be sought that the lost/mislaid deed was originally stamped and registered in the Registry of Deeds. Unless it is evidenced that stamp duty was duly paid on the original deed, stamp duty must be paid on the copy tendered as if it were an original;

Title insurance

When presented with a title insurance policy for the purposes of addressing some title issues, practitioners should request a copy of the proposal form and associated documents for the title insurance policy to identify the nature and extent of the cover, the exclusions, conditions and limits of the policy. In addition, practitioners should assess whether the definition of the “insured” includes all successors in title, any mortgagee, chargee, TE and the State. Practitioners will be mindful that most title insurers require that the existence of the policy is not disclosed to any third party, including TE without the relevant bond holder’s prior consent.

TE’s requirements and guidelines in considering title insurance

The Conveyancing Committee consulted with TE in the preparation of this practice note. TE’s stated basic requirements are set out below:

• The title bond presented should be subject to the laws of the Ireland.

• The title bond should cover TE and the State from any losses arising as a result of effecting the registration.

• The term of cover should be clearly set out and should not be contingent on another act occurring. For example, a company going into liquidation or the property no longer being in use by the parties.

• The title bond should not contain exclusion clauses that directly conflict with TE performing its normal duties. For example, serving notices on third parties.

• Applications which include a statutory declaration/affidavit that is drafted in accordance with TE’s practice direction and which contains a indemnity from the applicant/deponent are likely to be considered more quickly than applications with title bonds, since the review of title bonds involves significantly more time to review and consider, given the variety of bonds, exclusions, caveats etc.

• A considerable number of queries are often being raised on these applications by TE as these title bonds regularly fall short of the requirements as set out in TE’s practice direction.