Committee on Finance. - Registration of Title Bill, 1941—Committee Stage.
Sections 1 to 5, inclusive, agreed to.
SECTION 6.
(2) No person shall be appointed to be Registrar of Titles unless at the time of his appointment he is either a barrister-at-law or a solicitor who has practised his profession for not less than eight years.
(3) For the purpose of the next preceding sub-section of this section, service by a barrister-at-law or a solicitor in a situation in the Civil Service shall be deemed to be practice of his profession.
Mr. Lynch
I move amendment No. 1:—
In sub-section (2), page 3, line 9, to delete the word "eight" and to insert in lieu thereof the word "twelve".
My object in putting down the amendment is to get from the Minister his view on the appointment that will fall shortly to be made. This is a post where the occupant will require very considerable experience as a conveyancer. But that will not be all. He will also require to be a person who will have some enthusiasm in trying to bring the register to what it was originally intended to be, conclusive evidence of title. That, in fact, is the aim of any amendments I have put down; they are directed towards that end, towards making the register as far as possible conclusive evidence of title. That was obviously the intention when the 1891 Act was made law.
Section 34 of the 1891 Act sets out that the register shall be conclusive evidence of the title of the owner of the land as appearing thereon, and several other sections of that Act go to show that the intention at the time was that, as the years went by, when a man went in and inspected a folio in the land registry, he would find there practically everything that was to be found in regard to the land. As the years passed, through judicial decisions and otherwise, it has been found that no purchaser can rely entirely on what he finds in the folio because judicial decisions have brought about a situation where there are various rights that there is no necessity to register, floating about in the air, as it were.
My first two amendments are with a view to securing that whoever will be appointed will, within the next five or six years, bring in a comprehensive amendment of the Act of 1891 so as to meet as far as possible the decisions that have been given since the passing of that Act, more especially recent decisions. Perhaps the Minister may not be quite familiar with these decisions, but there was one in a recent case in re Strong which sets out that even though a person has not registered the contract or the transfer until after a judgment mortgage has been registered, that person comes in before the judgment mortgage and the judgment mortgage has no effect. That is the effect of the decision in re Strong.
I think something ought to be done to repair the effectiveness of the register. It will have to be done some time, unless the original object of the registration of land is to be lost. That is why I would like to have a person of very great experience in this position. I have put down "twelve" instead of "eight" without any particular conviction that the person who has been 12 years practising will be any better than certain persons who may have been only eight years practising. I might speak in the same way of the second amendment, which seeks to confine the position to persons engaged in the Land Registry or the Registry of Deeds. What I have in mind is a person engaged in legal work in the Civil Service. It would be absurd to appoint a person who has been away from legal work for a number of years. This position is a highly technical one and, unless a person was doing legal work, and especially title work, in his job in the Civil Service, he would be utterly unsuitable.
Mr. Boland
The reason eight years was put into the section is that that period is usually laid down for a person who is appointed a county registrar. Six years' experience is sufficient for a district justice and 12 years for a High Court judge. I think, in the circumstances, a solicitor or barrister practising for not less than eight years should be suitable. When it is good enough for the others, it ought to be good enough for a position of this kind. It does not follow that he will have only eight years' service, but if he has practised for eight years that should be a satisfactory minimum. It is hardly necessary for this man to have the same period of years of practice as a High Court judge. There is a precedent already established in regard to county registrars and district justices and I do not think, in view of that, that the Deputy will press his amendment.
Mr. Lynch
I do not think the number of years necessary in order to qualify for a district justice is quite pertinent to this matter because actually, if any question of title arises before a district justice, his jurisdiction ceases and therefore there is no relevance in the case of a district justice.
Mr. Boland
I have indicated the position of a county registrar.
Mr. Lynch
There is plenty of relevancy when the Minister cites the case of a county registrar. I am not tied to the particular figure I have mentioned. I merely raised the point to ensure that the Minister will insist on having an experienced conveyancer.
Mr. Boland
The Deputy may rest assured that everything possible will be done to see that a competent person is appointed. Some minimum number of years had to be put down. We believed that if we followed the existing practice in relation to county registrars it would be all right.
Amendment, by leave, withdrawn.
Mr. Lynch
What I have said on amendment No. 1 covers all I wanted to say on amendment No. 2. In view of what has been said on the first amendment, I will not move amendment No. 2.
Amendment No. 2 not moved.
Question proposed: "That Section 6 stand part of the Bill."
I want to raise one matter, but I am not quite sure if it is quite relevant to this section of the Bill. That is the question of whether the Minister would consider, between now and Report Stage, the insertion of an additional sub-section, sub-section (9), that would enable the registrar, at his discretion, or by rules made by him, to provide that the use of parchment or vellum might be dispensed with. As the Minister is aware, vellum is hard to get at the present time and the position may get worse. In other Departments, such as the Land Registry and the Land Commission, parchment is dispensed with; it is not being used. I recognise that it is hardly relevant to this Bill, but this is the only place where I conceive one can get it in, and as the Minister has a sub-section there repealing Section 8, chapter II, of a previous Statute, I thought we might go so far as to repeal Section 6 of the same Statute. If this were done, it would enable these things to be done properly.
Mr. Boland
I shall look into that between now and the Report Stage.
Question agreed to.
Section 7 agreed to.
SECTION 8.
(4) This section shall have effect subject to the provisions of the next following section.
Mr. Boland
I move amendment No. 3:—
In sub-section (4), page 4, to delete in lines 11 and 12 the words "the next following section" and substitute the words "sub-section (3) of Section 10 of this Act".
This is simply a drafting amendment. The sub-section refers to "the next following section", which is incorrect, and this amendment makes the necessary alteration.
Amendment agreed to.
Section 8, as amended, agreed to.
Section 9 agreed to.
SECTION 10.
(3) It shall be lawful for every person whose name is set out in the first column of the First Schedule to this Act to continue, after the passing of this Act, to execute the functions and duties of the local registering authority in the county mentioned in the third column of the said Schedule opposite the mention of such person's name in the said first column until whichever of the following events first happens, that is to say:—
(a) the Minister by writing under his hand terminates the right of such person to execute the said functions and duties, or
(b) such person dies or resigns the right to execute the said functions and duties, or
(c) the expiration of twelve months, or such longer period as the Minister, with the consent of the Minister for Finance shall in any particular case allow, from the date of the passing of this Act,
and on and from the happening of whichever of those events first happens, the county registrar for that county shall become and be the local registering authority for that county under and in accordance with the next preceding section.
Mr. Boland
I move amendment No. 4:—
In sub-section (3), page 5, to delete in line 4 the words "the next preceding section" and substitute the words "Section 8 of this Act".
This is another drafting amendment, to correct an error in drafting.
Amendment agreed to.
Section 10, as amended, agreed to.
Section 11 agreed to.
Question proposed: "That Section 12 stand part of the Bill."
On Section 12, Sir, I suggest that the Minister might consider between now and Report Stage whether he might provide similarly here for the case of a transferee from the owner of the registered land transferring pursuant to directions in a mortgage suit. As the thing stands at the moment, as in the case of Kidd v. O'Neill, it means an extra application and additional cost.
Mr. Boland
I shall have that point looked into.
Question agreed to.
SECTION 13.
Mr. Lynch
I move amendment No. 5:—
Before Section 13, page 6, to insert a new section as follows:—
Section 44 of the Principal Act is hereby amended as follows:—
(a) by the insertion in sub-section (2) of the said Section 44 after the words "valuable consideration" where they last appear in that sub-section the words "or of a burden registered against the lands";
(b) by the insertion after paragraph (b) of sub-section (2) of a new paragraph as follows:—
‘or
(c) is protected by such cautions or inhibitions as are in this Act provided for.'
(c) by the deletion of sub-section (3).
The object of this amendment is, again, to try to keep the register as conclusive as possible. This particularly refers to the case of persons who enter into a contract for the purchase of registered land, and either the contract may not be completed for some time or the transfer may be completed but may not be registered for several months. In the meantime, the register shows nothing of this transfer, and a person who may in good faith get, for instance, a judgment mortgage against the registered owner goes along and inspects the register and sees that the registered owner against whom he has the judgment mortgage is still the registered owner. Now, he goes to that trouble and then finds himself ousted by the transferee when the transferee registers his land. That has been the position, and I think there should be insistence on making persons, who enter into these contracts for purchase, enter what they call an inhibition or caution on the register. Section 69 provides for that in the old Act, and there should be insistence that this would be done in the case where a contract has been entered into, or, at any rate, certainly when the transfer has been completed and prior to registration. If there is any delay for one reason or another in registering the transfer, the purchaser should be compelled to enter an inhibition on the register so as to safeguard other persons who are dealing with the former registered owner. It is unfortunate that at the present time an inspection of the register is no safeguard whatever either to a purchaser or any person who has any charge on the land, and if that continues the time will come when persons will look on an inspection of the certified folio as being utterly useless. This particular amendment, if accepted, would go some way towards preventing these rights floating about in the air with regard to registered land when there is absolutely no reason whatever why they should not be registered. In the case that I mentioned the proposed transferee would take the necessary precaution that an ordinary person should take.
Mr. Boland
As I explained on the Second Reading, the principal reason for bringing in this Bill was to make provision for a successor to the present Registrar of Title, and we took advantage of that to bring in these other sections here dealing with the registration of land that were recommended by the Rules Committee. I have had this amendment examined, and I am advised that its effect would be to give a person who gets a judgment against, say, a farmer, priority over somebody, such as a bank which might have had a prior unregistered right. A man might have gone in and left his land certificate with a bank but, apparently, such transactions are not usually registered. Subsequent to that, a shopkeeper or somebody else may get a decree against the farmer and go and register it.
The effect of the Deputy's amendment, I am advised, would be to give the shopkeeper priority over the other person, who might have been a friend of the farmer—or it might have been a bank—and who took the land certificate as security, advanced the money, and did not register the transaction. I am advised that the effect of one part of the amendment would be to give priority to the shopkeeper in a case like that over the other legitimate claim that was there already, although it was not registered. I do not see why that should be.
Mr. Lynch
Yes, but if that person has such a right, why not enter it on the register by inhibition? That is my object. The judgment mortgagee has rights as well. If he is entitled to register this charge, and he finds no inhibition on the register, why should he not have the benefit of his prudence? Why should the other person be allowed to continue to have rights floating about in this way when he could so easily safeguard the rights by having the thing entered on the folio?
Mr. Boland
As to the point about the inhibition, the person who owned the land might object to certain things being put on his folio. I do not think it would be fair to ask the officials in the Land Registry to decide that question. That is a question for a court. There are two points in this amendment. One is the point about the person who has registered his mortgage having priority over a person who had advanced money in the way I stated, such as a bank, on the deposit of the land certificate. When it comes to the inhibitions or cautions, the Deputy proposes there to put in a new clause and to delete sub-section (3). The effect of that would be really to put the officials in the position of coming to a decision on a matter which really a court ought to decide.
Mr. Lynch
Mr. Boland
I have taken advice on this and, so far as I can see myself, that is so. When a person makes a caution, if the officials think there is a prima facie case for it, they will accept it. But how are they to go into the merits of the matter? How are they to know whether it is genuine or not, whether the people are entitled to make that caution? The court ought to decide that, if the owner objects.
Mr. Lynch
They take the same precautions now. Cautions and inhibitions are not new things on holdings. Surely they have plenty of experience of dealing with them. Let them take whatever precautions they take now in dealing with cautions and inhibitions with which they have to deal. I cannot see that there is any justification for saying that they are acting in any way judicially in entering a caution or an inhibition on a folio in order that other persons dealing with the land may be able to see what the position is in regard to the land and not be led astray by an incomplete register. I ask the Minister to consider that again before the Report Stage.
Mr. Boland
I will do that, but I assure the Deputy that I have gone into the matter very carefully. He is aware that it is a rather involved matter. I have gone into it very carefully and I have got advice on it and it seems to me to be perfectly sound. If a farmer leaves his certificate in a bank as security against a loan, the practice always has been, I understand, not to register that against the land. But it is a debt that ought to be honoured. If, subsequently, a creditor gets a court order for the payment of a shop debt, or something like that, and registers that, I do not think it would be fair to the person who had given the first advance to deprive him of his rights. If the Deputy wishes, I will look into the matter again and also the other point. I am not a legal man, but I have got advice on this, and I think that the Deputy is asking that the officials should take decisions which really ought to be taken by the court. That would be the effect of it. If he looks into that, he will find I am correct there.
Mr. Lynch
I cannot see it. The Minister, if he inquires, will find that the entering of cautions and inhibitions is an ordinary practice. There is provision in the 1891 Act for the entry of these on the register. Therefore, one can assume that that is the common practice in regard to these inhibitions and cautions which are entered under Section 69 of the old Act.
Mr. Boland
That is provided for in sub-section (3) which the Deputy wants to delete.
Mr. Lynch
I know, but I am scrapping that and providing for compulsory entry of those inhibitions in order to safeguard those rights, rather than have those rights floating about in the air and nobody knowing anything about them. Why there should be any difficulty created in the Land Registry about entering those inhibitions I cannot understand because it must be a common practice. I hope the Minister will have this reconsidered between this and the Report Stage before he turns it down. I shall withdraw the amendment if he assures me that he will have the matter examined again between this and the Report Stage. I think there is a great deal to be said for this amendment in order to ensure that there will be some safeguard for persons who make an inspection of the register.
Mr. Boland
I will have it examined again.
Amendment, by leave, withdrawn.
Mr. Lynch
I move amendment No. 6:—
Before Section 13, page 6, to insert a new section as follows:—
Section 45 of the Principal Act is hereby amended as follows: By the deletion in sub-section (2) of the said section of all the words after the words "interested in the burden" in line 3 of the said sub-section to the end of the sub-section.
I cannot see any reason for keeping portion of Section 45 of the old Act there. Section 45 (2) states:—
"A burden may be registered under this section on the application of the registered owner of the land, or of any person entitled to or interested in the burden, but if the application is made without the concurrence of the registered owner of the land or such other concurrence as may be prescribed, the burden shall not be registered except in pursuance of an order of the court."
I cannot see any reason for the second portion of that provision, and I propose to delete all the words after the words "interested in the burden"; that is to remove these words:
"...but if the application is made without the concurrence of the registered owner of the land or such other concurrence as may be prescribed, the burden shall not be registered except in pursuance of an order of the court."
These burdens are all, or nearly all, created by deed and, therefore, the registered owner is estopped from contesting the contents of the deed. When there is that position, why should there be any necessity to ask the leave of the registered owner for the entry of that on the title? Suppose a registered owner of land grants a building lease, that is a lease under (c), why must the lessee get the permission of the registered owner in order to have that entered in the folio? I think that is an absurd position. Of course the practice would continue that a registered owner could always be notified of any entry being put on the register. But that he should have to get his permission, after he has executed the deed under (c), seems to me to be asking too much from the lessee in the case of a lease.
Mr. Boland
I am advised that the new rules, which were made in 1937, have carried out what the Deputy seeks to effect by this amendment. I do not know whether or not the Deputy is familiar with the new rules.
Mr. Lynch
Mr. Boland
They are very voluminous, but I have read the rules in question and I believe that what the Deputy seeks to have done has been done by them.
Mr. Lynch
Why not deal with the matter properly by removing what is superfluous in the existing law? Although I use the 1937 rules in the ordinary course of my professional work, I am not so familiar with them that I know the contents of every provision. But why alter statutes by rule? Why not alter the statute in the way I suggest? I think that the Minister ought either to accept my amendment, if the position is as he says, or consider its acceptance before Report Stage.
Mr. Boland
The practice has always been to deal with these matters by rule. Whether or not it is a good thing to continue that method, is another matter. I shall have the matter examined, but I am told that what is sought to be done by the amendment has been done by the rules.
Mr. Lynch
The Minister has made a very extraordinary statement—that the existing law is amended by rule.
Mr. Boland
The practice has been that, in these matters, the rules govern the procedure.
Mr. Lynch
I shall withdraw the amendment until Report Stage.
Amendment, by leave, withdrawn.
On the section, I suggest, for the Minister's consideration, that it is undesirable, in some cases, that the certificate should be in the hands of the registered owner. It enables him to get a loan by deposit. I quite appreciate that it is only rarely that such a thing could arise because, if a registered owner is borrowing from the bank, the bank would examine his transfer. It would be only with people unfamiliar with the procedure that danger would arise. It is a remote possibility and I shall not press the suggestion.
Mr. Boland
I shall look into that matter, too.
Section 13 agreed to.
SECTION 14.
Mr. Lynch
I move amendment No. 7:—
Before Section 14 to insert a new section as follows:—
(1) As from a day to be appointed by the Minister not being later than twelve months after the passing of this Act, the registration in the Land Registry of the following burdens shall be compulsory:—
(a) succession duty, Crown rents, quit rents, tithe rent charges, and payments in lieu of tithe or tithe rent charge;
(b) land improvement charges and drainage charges;
(c) annuities or rent charges for the repayment of advances made under the provisions of any of the Purchase of Land (Ireland) Acts on account of purchase money;
(d) annuities charged under the provisions of Section 27 of the Landlord and Tenant (Ireland) Act, 1870;
(e) rights of the public or of any class of the public;
(f) customary rights, franchises, seigniorial rights, and liabilities arising from tenure;
(g) easements and profits a prendre;
(h) tenancies created for any term;
(i) statutory tenancies;
(j) perpetual yearly rents (in this section referred to as superior rents) which are superior to other such rents (in this section referred to as the registered rents) registered as a burden on registered land, and which, as between the said registered land and the registered rents, are primarily payable out of the registered rents in exoneration of such land;
(k) the covenants and conditions contained in the deeds or other documents creating the superior rents referred to in the last preceding paragraph in so far as such covenants and conditions affect such land.
(2) The registration of the burdens referred to in sub-section (1) of this section shall be done free of any registration charges.
(3) Section 47 of the Principal Act is hereby repealed.
The object of the amendment is merely to draw attention to the fact that all the burdens which do not require registration under the old Section 47 are continued under this Bill. I have added to those the two new burdens the Minister intends to add to Section 47 and I propose to make registration of these burdens compulsory. It is a rather discouraging state of affairs that, after 50 years, instead of reducing the number of burdens which affect registered land without registration, we are adding a pair to them. We are departing very much from the original intention of the Registration Act, as set out in Section 34—that the register should be conclusive evidence of the matters appearing thereon. Several other sections of the 1891 Act, undoubtedly, show that the object was that the folio should be conclusive evidence of the title and that, as time went on, no burdens should affect registered land which did not appear on the register. Instead of reducing the number of burdens which affect registered land without registration, the Minister is adding two by this Bill. When we come to them, I shall have something to say of one of these. It is a sad commentary on our advance in the past 50 years that we are about to add to the burdens which affect registered land without registration. I suggest that when this new man is appointed he should take out that Section 34, to which I have referred, and paste it on the wall before him, keeping it there until he brings in a Bill which will clear up the position created by these judicial decisions and clear off all these burdens under Section 47 which affect registered land without registration.
I support the amendment. The Minister and the Government should be very careful before they allow any unregistered burden to be placed upon registered land which was not the case previously because, to the farmer, the folio out of the Land Registry has been conclusive proof of his ownership of the land and the burdens imposed upon it, as provided by the 1891 Act. It would be a terrible state of affairs if burdens which would not appear on the folio could be imposed on the title and the Minister should be very careful in that respect. This Government has done many things to injure the farmer's title to his land, and I appeal to them not to do anything which will make the situation worse.
Mr. Boland
I do not think that we are doing anything to make the situation worse. These new sections were suggested by the rule-making committee, which was representative of the Bar, the Incorporated Law Society and included the Registrar of Title. This was their considered opinion. What the Deputy seeks to do, in his amendment, is the reverse of what I am proposing to do. There are certain burdens which do not require to be registered, such as succession duties, Crown rents, quit rents, tithe rent charges, payments in lieu of tithe or tithe rent charge and so forth. Ordinarily, many of these charges would be known to the people concerned. There was never any necessity to register these charges under the Local Registration of Title Act, 1891. I am advised by those who have experience that it would be very difficult to work the Act if all these charges had to be registered. I shall have this matter examined also—if possible by the rule-making committee—and get further advice. There seems to be some case for what the Deputy argues but, on the other hand, there is a case for not burdening the register with charges which are well known. Some of these charges will pass out soon. I shall have the whole matter re-examined and we can debate it on the Report Stage.
In line 13 of the Section, would the Minister alter the word "land" to "property", so that a sale of property would include land and also a registered charge?
Mr. Boland
Mr. Lynch
Since the Minister has not done what I would like to see done—having all these burdens registered—that is a provision with which I would agree. Deputy Ruttledge knows that, even in the case of a sale by order of the court, you have a condition precluding the purchaser from inquiring as to whether or not any of these burdens under Section 47 affect the land. It is about time that that particular condition of sale was made void. I entirely agree with the proposal as the next best thing.
Amendment, by leave, withdrawn.
Section agreed to.
SECTION 15.
Question proposed: "That Section 15 stand part of the Bill."
Mr. Lynch
This section adds to the number of burdens affecting registered land without registration. I think that it is retrograde that we should add burdens to that section rather than deduct burdens from it. With regard to the burdens which the Minister proposes to add, there is something to be said for (a) which affects only the superior rent. That can hardly be said to affect the land. Paragraph (b), however, refers to
"the covenants and conditions contained in the deed or other document creating the superior rent, in so far as such covenants and conditions affect such land".
That is, the superior deed. If you take a grant superior to a fee farm grant in which that superior rent was created, the superior deed may contain covenants restrictive of the users of the lands—prohibiting the use of the land, for instance, for certain purposes. If there are such covenants in the deed creating that superior rent and if they affect the lands in any way, why should they not be registered in the Land Registry rather than in the Registry of Deeds? I think it is absurd that that should be a burden affecting registered land without registration. It is apparent that that is a burden which should appear on the folio in the Land Registry. I should like the Minister to refer that provision back for further consideration.
I do not know why it is considered desirable to confine paragraph (a) to perpetual yearly rents. It might be desirable to have a number of other rents registered—leasehold rents, for instance. I think that paragraph (b) might be usefully omitted. It will cause considerable trouble. One may not be able to get the deed creating the superior rent and how is one to know what covenants or conditions are contained in it? One might find oneself in the middle of a sale which would be held up by that sub-section. I do not think that the Bill would lead to any fraud on the title if paragraph (b) were left out.
Mr. Boland
I shall have these matters examined.
Section agreed to.
SECTION 16.
Mr. Lynch
I move amendment No. 8:—
Before Section 16 to insert a new section as follows:—
Where at any time land has been acquired under the Labourers Acts, 1883 to 1937 and has not been registered under the Principal Act, the board of health and public assistance shall as soon as may be after the passing of this Act send to the registering authority a map showing the situation of such land, certified by a competent engineer, together with a certificate of occupancy, and on receipt, the title of such board of health and public assistance to the ownership of such land in fee simple shall be registered under the Registration of Title Acts, notwithstanding anything in the register to the contrary.
Mr. Boland
The Minister for Local Government and Public Health intends to deal with this matter in a separate Bill. He sees the necessity for the provision.
Amendment, by leave, withdrawn.
Sections 16 to 20 agreed to.
SECTION 21.
As soon as conveniently may be after the passing of this Act, the insurance fund shall be wound up, and for that purpose, the trustees of the said fund shall take all such steps as may be necessary to realise the investments in which the said fund is then invested, and to pay into or dispose of for the benefit of the Exchequer the net proceeds of such realisation in such manner as the Minister for Finance shall direct.
Mr. Boland
I move amendment No. 9:—
In sub-section (1), page 8, to insert in line 54 before the word "in" the words "and any other cash in the fund".
This amendment deals with the winding up of the insurance fund and for its payment into the Exchequer. The sub-section provides for realisation of the investments in which the fund is invested and payment into or disposal of the proceeds for the benefit of the Exchequer. By an oversight, reference to the cash asset of the fund was omitted. There is over £500 in cash in the fund and, if sub-section (1) were to remain in its present form, there would be some doubt as to how the cash asset should be disposed of in the winding-up.
Amendment agreed to.
Section 21, as amended, agreed to.
Section 22, 23, First Schedule, Second Schedule, Third Schedule and Title agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 4th March.
