Registration of title and registration of deeds in Ireland

The principle

Dealing in land is risky because of the ordinary rules. A legal interest binds a later purchaser whether or not that purchaser knew of it or could have discovered it. An equitable interest binds everyone except a bona fide purchaser for value of the legal estate without notice. Constructive notice softens that only by requiring inquiry and inspection to the standard of a reasonable and prudent purchaser.

Both systems answer that risk, but they do different jobs. Registration of deeds records documents and reorders priority. Registration of title records ownership itself, and the State stands behind it. Under section 28 of the Tailte Éireann Act 2022 the functions of the Property Registration Authority, including both registries, are vested in Tailte Éireann.

Unregistered land: the basic rules of priority

Where the Registry of Deeds is not engaged, competing legal interests rank in order of creation, and so do competing equitable interests. A legal interest created first is usually first in order and normally prevails in any event over a later equitable one. Where the equitable interest comes first, it is defeated only by a purchaser for value of the legal estate without notice.

Notice is of three kinds: actual; constructive, on the objective standard of a prudent purchaser making reasonable inquiries; and imputed, where the information was available to an agent acting for the purchaser. Lack of direct knowledge is not absence of notice, or the wilfully blind purchaser would be rewarded.

How registration of deeds displaces those rules

The Registry of Deeds was established under the Registration of Deeds Act (Ireland) 1707, now repealed and replaced by the Registration of Deeds and Title Act 2006, and is not a library of unregistered titles. Section 38 of the Registration of Deeds and Title Act 2006 provides that registered deeds rank among themselves by the serial numbers allocated under s.37, and that an unregistered deed is void against a registered deed affecting the same land. Registration beats creation: the second purchaser who registers can take priority over the first who did not.

Two limits matter. First, not every transaction is registrable. Section 32 defines the registrable documents; wills are a notable omission, and the definition excludes any document in so far as it affects registered land, and any lease not exceeding 21 years where actual occupation accords with the lease. For an unregistrable transaction, such as a deposit of title deeds with no written memorandum, the basic rules and the doctrine of notice apply again.

Second, statutory priority is without prejudice to any rule of law or equity where the person claiming under the registered deed had, or is deemed to have had, knowledge of a prior unregistered deed. That is where O'Connor v McCarthy turns.

Registered land: the folio

On first registration the title is investigated, the land is mapped and the result is recorded in a folio, which cuts the investigation needed on every later sale. Section 8 of the Registration of Title Act 1964 provides for three registers: freehold ownership, leasehold interests, and incorporeal hereditaments held in gross. Under Rule 3 of the Land Registry Rules every folio is numbered and has three parts: the property and its map reference, the ownership, and the registered burdens.

Owners are classified under s.27, though the category of limited owner became redundant once the Land and Conveyancing Law Reform Act 2009 abolished the fee tail and the legal life estate. Freehold title may be absolute, qualified or possessory under s.33; leasehold title may be absolute, good leasehold, qualified or possessory under s.40. Both were updated by the 2006 Act.

Burdens, and burdens that bind without registration

Section 69 permits registration of burdens in Part 3 of the folio: charges, judgment mortgages, leases over 21 years, easements, profits and rentcharges, rights of residence, and freehold covenants within the 2009 Act. A purchaser sees those by buying the folio.

The difficulty is s.72, which lists burdens affecting registered land whether or not registered: public rights; easements and profits, unless created by express grant or reservation after first registration; and tenancies not exceeding 21 years where there is occupation under the tenancy. It also protects the interests of a person in actual occupation, save where those interests are not disclosed on inquiry, as Kingsnorth Finance Co Ltd v Tizard [1986] 1 WLR 783 Persuasive illustrates. Inspection is still necessary; the folio is not the whole story.

Restrictions: cautions and inhibitions

Equitable interests in particular cannot be registered as burdens, so their holders enter a restriction instead. A caution under s.96 is temporary: the Registry will not accept an instrument of transfer without notifying the cautioner and allowing time to apply to court. An inhibition under s.98 is stronger: entered on foot of a court order or after inquiry by the authority, it blocks any dealing without the interested party's consent.

Conclusiveness, and its limits

Section 31(1) of the Registration of Title Act 1964 makes the register conclusive evidence of the owner's title and of any right, privilege, appurtenance or burden appearing on it, and that title is not affected, absent actual fraud, by the owner having notice of any deed or document relating to the land. The court keeps its jurisdiction on the ground of actual fraud or mistake and may order rectification; s.32 allows correction of errors arising within the Land Registry itself; s.120 compensates a person prejudiced by error, forgery or fraud in registration; and under s.85(2) boundaries are generally not conclusive.

Compulsory first registration

Registration may be voluntary, but s.23, as amended by s.52 of the 2006 Act, makes it compulsory for land acquired by a statutory authority and for land sold under the Land Purchase Acts or the Labourers Acts. Section 24, as amended by s.53, lets the Minister apply it to a specified area or specified land, so that it bites on freehold land on conveyance on sale and on a leasehold interest on the grant or assignment on sale. Section 25, substituted by s.54, is the sanction: no estate or interest is acquired unless the person registers within six months, or such later time as is sanctioned, the title then relating back. Compulsory first registration became nationwide on 1 June 2011.

Statutory basis

• Registered land, Registration of Title Act 1964: s.8 registers; s.27, s.33, s.40 classes of owner and of title; s.69 and s.72 burdens; s.96 and s.98 restrictions; s.31(1), s.32, s.85(2) and s.120 conclusiveness, rectification, boundaries and compensation; ss.23, 24 and 25 compulsory registration.
• Unregistered land, Registration of Deeds and Title Act 2006: s.32 registrable deeds, s.37 serial numbers, s.38 priority, s.73 land certificates, and ss.52 to 54, 56 and 57 amending the 1964 Act.

Key authorities

• Guckian v Brennan [1981] IR 478 IE · High Court — Gannon J held that s.31(1) protects the vendor and intending purchaser as to prior transactions affecting the registered ownership. On his reasoning the registrar bears the duty of ensuring that an instrument of transfer is valid and effective; thereafter, absent fraud, the register is conclusive.
• Tanager DAC v Kane [2018] IECA 352 IE · Court of Appeal — comprehensively reaffirmed the general conclusiveness of the register, and as a Court of Appeal decision it binds the High Court and below.
• Tarbutus Ltd v Hogan [2021] IEHC 786 IE — Holland J again reaffirmed conclusiveness: the principle is settled, not contested.
• In re Mulhern; Mulhern v Mulhern [1931] IR 700 IE · Supreme Court — an administratrix registered as full owner free of equities charged the land, and the charge took priority over the rights of the next-of-kin. Short of actual fraud the register is conclusive: going behind it would cut across the whole registration scheme.
• Gibbs v Messer [1891] AC 248 Persuasive — relied on in In Re Mulhern. Lord Watson described the object as sparing those who deal with registered proprietors the trouble and expense of going behind the register, the purchaser in good faith and for value taking an indefeasible right.
• Lagan Bitumen Limited v Tullagower Quarries Ltd [2019] IECA 89 IE — on the scope of the jurisdiction to rectify errors arising within the Land Registry itself under s.32, exercised in Allied Irish Banks plc v Property Registration Authority [2022] IEHC 232 IE · High Court.
• ACC Loan Management Limited v Fryday [2019] IEHC 103 IE · High Court — Quinn J held that where an inhibition is registered to frustrate due enforcement process, there of a judgment mortgage, the court will order its cancellation.
• O'Connor v McCarthy [1982] IR 161 IE · High Court — a company contracted to sell the same premises twice and only the second contract was registered. Costello J held that registration gave the second contract priority, subject to notice; the first purchaser had not shown actual notice in the second purchaser or his solicitor.

How it is examined

The cue is two claims to the same land with a registry in the background: a second sale of the same premises, a mortgage over property already charged, a first registration that turns up a map discrepancy, or a person living in the property whose name is not on the folio. It is set as a short-notes question on the difference between registered and unregistered land and why that matters, and it surfaces inside problem questions on other topics.

Order of attack. Decide first whether the land is registered or unregistered, because that alone selects the system. If unregistered: classify each interest as legal, equitable or unregistrable; ask whether each instrument was registered and when; apply priority by serial number; then test whether the registered claimant had actual, constructive or imputed notice, which displaces that priority. If registered: read the folio in its three parts, deal with registered burdens under s.69, then ask the question that carries the marks, whether an unregistered burden under s.72 binds anyway and whether a caution or inhibition should have been entered. Close on conclusiveness under s.31(1).

Related Land Law notes: judgment mortgages and fraudulent dispositions · adverse possession · mortgages and repossession · all free Land Law notes.