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Seanad Éireann debate -
Wednesday, 24 Jun 1964

Vol. 57 No. 15

Registration of Title Bill, 1963—Committee and Final Stages.

Sections 1 and 2 agreed to.
SECTION 3.

I move amendment No. 1:

In page 7, line 41, before "be" to insert "for the purposes of this Act".

The definition of "leasehold interest" contained in section 3 briefly says that two periods in a lease shall be deemed to create one continuous term in possession. My only objection to that definition is that as the law relating to stamp duty stands at the moment a lease for a period of less than 35 years is subject to a smaller rate of stamp duty than a lease in excess of 35 years. A lease, therefore, for two periods which together would be for more than 35 years still would only be subject to or attract a lesser rate of stamp duty. But if two periods which together make up more than 35 years are to be taken as one period here the argument would be for the higher rate of stamp duty, as the Minister considers it is.

I have considered the amendment. I am assured by the draftsman that the words the Senator proposes to insert are not, in fact, necessary. Senators will notice that subsection (1) of section 3 begins with the words "In this Act,". This is sufficient to establish that all the definitions contained in section 3 are for the purpose of the Registration of Title Act only. When the Bill is enacted these definitions will not affect the meaning of these terms in any other context whatsoever. As I have said, I have consulted the parliamentary draftsman and he has assured me that is the position.

I accept that.

Amendment, by leave, withdrawn.
Section 3 agreed to.
Sections 4 to 6, inclusive, agreed to.
SECTION 7.

I move amendment No. 2:

In subsection (2) line 21, to delete "land" and substitute "title".

Subsection (2) reads:

The central office shall be the office for registration of all land in the State.

I submit that the office referred to is for the registration of title rather than the registration of land and it would be desirable, I think, to amend the subsection to read: "The central office shall be the office for the registration of title to all land in the State". We are not really registering land. We are registering title to land.

Again, the draftsman assures me the section as drafted is satisfactory. What we are registering is, in fact, ownership of land, and land in this context means land of any tenure. That is the first sense in which it is defined in section 3. It is not land physically and, therefore, the term "land" as used does incorporate in it the idea of ownership of the land. That is what is being registered. The draftsman tells me it is quite satisfactory. Anyway, the Senator's amendment is unacceptable from the drafting point of view.

Very briefly, I should like to refer the Minister to the title of the Bill, which is "Registration of Title Bill, 1963" From the outset we are dealing with the registration of title, not the registration of land or houses. Land would, I submit, presuppose a fee simple interest in land. We are registering leasehold interests here and limited ownership of one description or another. I maintain the word should be "ownership" or "title". It would really be neater to call it registration of title. The drafting of my amendment may not be perfect. Opposition amendments have to be tabled without the aid of expert draftsmen and can always be improved upon, but I think the idea behind the amendment is sound.

The Senator has a point, but if he takes subsection 3 and this section together he will find that land under section 3 (1) includes land of any tenure. When one comes to a general section then, like section 7, and one refers to land, it is perfectly in order to regard it as covering ownership of land in the sense meant.

Amendment, by leave, withdrawn.
Section 7 agreed to.
Section 8 agreed to.
SECTION 9.

I suggest we take amendments Nos. 3 and 4 together. Separate decisions may be had, if necessary.

I move amendment No. 3:

In subsection (3), line 43, to delete "eight" and substitute "ten".

Section 9 prescribes the qualifications of the Registrar of Titles, not the Registrar of Lands. This is a very important position. At the moment we have a Registrar in charge of the Land Registry and a Registrar of Titles in the Registry of Deeds. Now we are going to appoint a Registrar of Titles who will be responsible for the administration of the Land Registry in Dublin and responsible also for the administration of the offices in each county. He will, of course, have the local county registrar but, in the last analysis, it is he who will be responsible.

This Bill confers on the Registrar of Titles functions of a quasi-judicial nature. He will have the right to do what up to now could only be done by a judge of either the Circuit Court or the High Court under section 52. Section 49 of this Bill confers upon the Registrar of Titles the right to declare a title to lands subject, of course, to appeal to the court. The qualifications laid down in subsection (3) stipulate:

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.

The effect of these amendments would be to require a barrister or solicitor to have ten years' practice in his profession immediately before appointment. Eight years is a bit short. Ten years would be reasonable. It should be laid down, too, that it would be a necessary qualification that the ten years should be immediately before appointment. As the Bill stands, a person could practice for eight years and then take up some other occupation, come back after ten years, and find himself appointed to this important position. I make the Minister a present of saying that that this is unlikely to happen, but the fact remains that it could happen, and it should not be possible for it to happen.

I have no very strong feeling one way or the other about whether it should be eight years or ten years. In order to be agreeable and amenable, as I always try to be in this House, I shall make it ten years. However, I would ask the Senator not to press amendment No. 4 because it would be, I think, unnecessarily restrictive. One might have an ideal person, suitable in every way for appointment, but debarred if this amendment were adopted for one reason or another — perhaps he might have had a period of illness or he might have left the profession to take up an appointment in a university, or something like that. Provided we make the ten year qualification we could, I think, leave it to the good sense of future Governments to make suitable appointments. I would not like to tie the hands of any Government and that is what we would do by confining it rigidly to people who are actually practising at the date of appointment. Amendment No. 4 would make that mandatory.

I think Senator Fitzpatrick's amendment would exclude anyone in the office itself getting promotion.

No. It is defined I think in the next one. I am obliged to the Minister for accepting amendment No. 3. I do see difficulties in the way of amendment No. 4. For example, I think that if amendment No. 4 were accepted then subsection (4) would probably need to be added to. For example, I do not know whether a county registrar is a member of the Civil Service within the meaning of the definition or whether a district justice who has spent a year——

I think, on the whole, it is better to leave it as it is.

I do not press the amendment.

Amendment agreed to.

I move amendment No. 4:

In subsection (3) to add at the end: "immediately preceding his appointment".

Amendment, by leave, withdrawn.
Section 9, as amended, agreed to.
Sections 10 to 13, inclusive, agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."

This section provides the fees that shall be charged. When this Bill is enacted and when all the land of the country and the title to all the land of the country is being registered, the Land Registry will be more expensive than it will be in 25 years' time when the work of registration has, in fact, been completed. I think it would be unfair that the present generation, so to speak, should have to bear the brunt of all the first registration.

The people who own lands now will not really reap the benefit of first registration because they will be registered subject to all sorts of qualified titles and possessory titles. It is only as the years go by and when those qualified and possessory titles are converted into absolute titles that the people of the country will really reap the benefits and advantages of registration of title. Therefore, I appeal to the Minister to consider this question of fees and not to set out to impose the entire burden of the costs of first registration on the present owners of land.

I am afraid I cannot give any undertaking to depart from the underlying principle enshrined in this section, namely, that the Land Registry should more or less pay for itself. However, I would hope that the greater volume of business which would ensue as a result of the extension of compulsory registration should not necessarily involve a corresponding increase in overheads and that it may be possible in the years ahead to reduce Land Registry fees. When I say "reduce", I am using the word in a rather artificial way. I would regard Land Registry fees as being reduced in fact if they did not keep pace with rising costs and the falling value of money. I would hope that, over the years, the services rendered by the Land Registry might in reality be less expensive.

Question put and agreed to.
Sections 15 to 23, inclusive, agreed to.
SECTION 24.

I move amendment No. 5:

In subsection (1), lines 33 and 34, to delete "or any portion thereof".

Section 24 (1) provides that the Minister for Justice may by order provide that this section shall apply to any county or county borough or any portion thereof on and after a specified day, but not less than six months after the making of the order. I have no objection to the Minister's being able to bring this Bill into operation in respect of a specified county or a specified county borough but I do object strenuously to the proposal in this section which enables the Minister to apply the Act to a portion of a county or a portion of a county borough. It is absolutely essential that the general public and practitioners should know when and in respect of what land compulsory registration applies because the penalties are very heavy. If a person enters into a deed transferring land, and it is not registered, that deed, within three months as the Bill stands at present or within six months as it will stand when the Minister's amendment is accepted, is void.

It is all very well to say that a solicitor practising in a certain county will know what barony or what parish compulsory registration will apply to. That may be so but a mistake could be made. Furthermore, and this should apply to the Civil Service, it is not necessary that a solicitor be employed in every case. I know it is usual. I know it is nearly invariable. The provision here is to simplify the transfer of land. If the registration applies only to part of a county, it could lead to misunderstanding and to mistakes.

I strongly appeal to the Minister to accept this amendment which proposes to delete the words "or any portion thereof". I do not think the Bill, when it becomes an Act, will be any the worse therefor. In fact, I think it will be considerably improved.

It is important that we retain the flexibility which is incorporated in the section as drafted. I would find it very difficult, indeed, to accept the amendment proposed in the name of the Senator that the flexibility which is there be taken away. One argument that comes to mind is that, in so far as we can estimate, if compulsory registration were to be extended to the whole country there would be as many applications from the county borough of Dublin alone as there would be from the rest of the country. That I think, makes it inevitable that we must have, certainly so far as Dublin is concerned at any rate, the power to extend it to portions of a county borough rather than to the county borough as a whole because it would be impracticable suddenly to throw the whole weight of Dublin city on to the Land Registry for compulsory registration purposes.

The difficulties which Senator Fitzpatrick envisages will, in fact, in my opinion not arise. First of all, we would propose, in regard to county boroughs, that, if we were to depart from the borough as an entity at all, we would go down only as far as an electoral area, which is a fairly clearly-defined and well-recognised unit. Secondly, I should not imagine that, outside the principal county boroughs, there would be any question of dividing up a county, for purposes of extending compulsory registration.

I think it would be fairly likely that we would deal with counties as a whole. I would be prepared to give an undertaking to the Seanad in this matter that when we are bringing in any particular area, whether it be a county, or a county borough, or a smaller unit such as an electoral area, we will publish the fact very adequately, and we will certainly be in touch with the Incorporated Law Society and facilitate them in every way possible to notify their members of the fact. Indeed, I am sure it would be possible for us to have maps provided in the Land Registry of the particular areas to which compulsory registration has been extended, and have them made available to practitioners on request, or to any member of the general public who may wish to see them.

I appeal to Senator Fitzpatrick to withdraw the amendment on these two grounds. First of all, the difficulties he foresees in my opinion will not arise, and secondly this amount of flexibility is absolutely essential if we are to fulfil the promises I made here and in the Dáil that we will not in any way overstrain the resources of the Land Registry, and that we will bring in only an amount of territory, as it were, with which it can cope at any given point of time.

Arising out of what the Minister has said, I was looking at this and thinking that perhaps there is a simple way to deal with it if he really means that there would be no intention of dividing a county. If we put a comma after "county", that would separate it from "county borough or any portion thereof". Having read the section again, I wonder is it clear beyond shadow of doubt that it applies to any county and county borough or any portion thereof.

I am not a draftsman, neither am I a practitioner, but my reading of it would be that it would qualify both. I do not envisage that we would at any time be bringing in portion of a county except where that county includes a county borough but I should like the machinery to have that amount of flexibility.

Amendment, by leave, withdrawn.
Section 24 agreed to.
SECTION 25.
Government amendment No. 6:
In line 6, to delete "three" and substitute "six".

I do not propose to make heavy weather with this amendment. I put it down to meet criticism of the existing section made in the Dáil by Deputy Sweetman and Deputy O'Higgins, mainly as practitioners. That criticism was also voiced here by Senator Fitzpatrick, another practitioner. Again, I am not entirely convinced that it is necessary, but when Deputies and Senators who are practitioners feel strongly about the matter I think I should give way. I am making the period six months instead of three months.

I am obliged to the Minister for putting down this amendment. I have three separate memoranda from people who went to a lot of trouble with this Bill, and who urged very strongly that the amendment is necessary.

Amendment agreed to.
Question proposed: "That section 25, as amended, stand part of the Bill."

Some people feel that if there are delays in land registration it could lead to serious difficulties. They fear, for example, that if a person lends money on this security on a charge, and in normal circumstances pays over the money in exchange for the charge, it goes to the Land Registry, the person may find for some reason or another that the charge is not acceptable and that he has no security at all. I know it may be said that it is up to the lender to safeguard himself by the proper drafting of the deed of charge, and ensuring that it will be accepted. I fear the lender will safeguard himself in this way: that he will not part with the money until he has been notified that it has been dealt with by the Land Registry. Big corporations who lend money are not inclined to take any chances, and if that state of affairs came about it would be a great inconvenience to the general public. It may be that this has been considered and there is some safeguard in the Bill which has escaped me.

This section deals only with conveyances on sale.

I should like the Minister to deal with that point sometime.

Question put and agreed to.
Sections 26 and 27 agreed to.
SECTION 28.
Question proposed: "That section 28 stand part of the Bill".

Section 28 provides:

On registration of a person as owner of land, the Registrar shall deliver to him a certificate in the prescribed form (in this Act referred to as a "land certificate") of his title to the land.

As we all know, as things stand at present a land certificate is not issued unless it is requested. Am I to take it that under this Bill a land certificate will automatically issue? Am I to take it that it will issue directly to the registered owner? Will the Registrar be obliged to deliver the land certificate to the registered owner, or will he still be at liberty to send it to the solicitor or authorised agent of the registered owner, as at present?

The answer to the first point is that section 14 (3) provides:

Any provision of this Act or of general rules requiring or authorising anything to be done or any certificate or other document to be issued by the Registrar or in or from the Land Registry shall be construed as requiring or authorising the same on payment of such fees as may be fixed by order under this Act.

Section 28 is qualified by section 14 to the effect that if you do not pay you will not get it. That takes care of that. The reply to the other point is that the situation will still obtain that the land certificate will issue to the practitioner as heretofore.

Can the Minister say where the authority for that is in the Bill? I cannot find it.

I am advised there is no specific authority in the Bill for it. The general principle of law that a person can do anything through his authorised agent applies.

Question put and agreed to.
Sections 29 to 32, inclusive, agreed to.
SECTION 33.
Question proposed: "That section 33 stand part of the Bill."

I have a note here saying that I take it that the grounds on which qualified title is registered will be set out in the rules. I think there is something later on about it in the Bill.

Question put and agreed to.
Sections 34 to 48, inclusive, agreed to.
SECTION 49.
Question proposed: "That section 49 stand part of the Bill."

I oppose this section. Owing to the hour of the evening that it is, I propose to just give a summary of the argument I had hoped to develop if I had got in at an earlier hour. This section, as I have already intimated on Second Reading, proposes to give the Registrar of Titles on application from some person or from his solicitor the power to declare a title a possessory title to land. As I pointed out on Second Reading, this is a very important power and one which in my view amounts to a judicial power and falls within the definition of judicial power as given in the decisions of our courts. As such judicial power it cannot be exercised save by somebody in the position of a judge properly appointed in accordance with the Constitution. For the purpose of my argument I must quote the relevant provisions of the Constitution which restrict the exercise of judicial power by a person other than the judges.

Article 6 (1) says: "All powers of Government, legislative, executive and judicial derive, under God from the people..." Subsection 2 says "these powers of Government are exercisable only by or on the authority of the organs of State established by this Constitution."

Article 34 (1) says "Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution..."

Article 37 of the Constitution, as the Seanad knows, is a limiting one. In that regard it is limited in an extremely careful manner and it has been interpreted by the courts in an equally careful manner. Article 37 says:

Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.

The question then has to be examined from this point of view — what is the administration of justice and what is the meaning of the word "limited". I refer the Minister to the latest and very exhaustive judgment delivered by the Supreme Court and reported in the Irish Reports of 1960in re the Solicitors Act, 1954 where this whole question was examined very minutely and in which all the relevant authorities were brought to play and examined and applied. Mr. Justice Kingsmill Moore delivered the unanimous judgment of the Supreme Court in this case, and it all hinged upon the question as to whether or not certain powers given to the Disciplinary Committee of the Incorporated Law Society were judicial powers. It was found by the then Chief Justice, who tried it first, that it was a judicial power but then he said that it was limited according to Article 37 of the Constitution. It referred to the striking off the role of solicitors by the Disciplinary Committee, and the Supreme Court on appeal and cross appeal found that it was a judicial power and that it was not limited and accordingly could not be exercised by a body such as the Disciplinary Committee of the Incorporated Law Society in order to strike solicitors off the role.

The whole question of judicial powers was examined and considered and judgment given upon it. I quote from page 263 of the Irish Reports of the year 1960, and from the judgment of Mr. Justice Kingsmill Moore.

The judicial power of the State is by Article 34 of the Constitution lodged in the courts, and the provisions of Article 37 do not admit of that power being trenched upon, or of its being withdrawn piecemeal from the courts. The test as to whether a power is or is not "limited" in the opinion of the court lies in the effect of the assigned power when exercised. If the exercise of the assigned powers and functions is calculated ordinarily to affect in the most profound and far-reaching way the lives, liberties, fortunes or reputations of those against whom they are exercised, they cannot properly be described as "limited".

Any ruling on people's title to lands is an exercise of a power that, in my respectful view, is most profound and far-reaching in its effect on the lives, liberties and fortunes of the people.

In the same judgment at page 267 the judicial power is dealt with. I quote:

It follows from its nature as I have described it that the exercise of the Judicial Power, which is coercive and must frequently act against the will of one of the parties to enforce its decision adverse to that party, requires of necessity that the Judicial Department of Government have compulsive authority over persons as, for instance, it must have authority to compel appearance of a party before it, to compel the attendance of witnesses, to order the execution of its judgments against persons and property.

All of this judgment I would urge upon the Minister to read and for his advisers to read, particularly with regard to the argument that I anticipate the Minister will make, namely, that there is an appeal to the court and that that solves the whole situation. There was an appeal to the court in the judgment to which I refer and the matter decided upon and there at page 275 of the same judgment, Mr. Justice Kingsmill Moore continues:

It is urged that the existence of an appeal to the Chief Justice is sufficient to answer these objections. The Chief Justice in his judgment took the view that, notwithstanding his own opinion as to the merits, he was not at liberty to act as if he was engaged on an untrammelled re-hearing and he must not interfere with the decisions of the Committee unless he was clear that the decision was wrong, nor interfere with the punishment unless he was convinced that it was out of proportion to the misconduct. If this view be correct the appeal is but an indifferent protection, but even if it be not correct the existence of an appeal to the courts cannot restore constitutionality to a tribunal whose decision, if unappealed, amounts to an administration of justice.

Here is where the Minister is in trouble with this section and may well be in trouble later. I would strongly recommend him to reconsider it and come before us again. To summarise, in my view the exercise of the power, which it is proposed to confer under section 49, by the Registrar of Titles is a judicial power; it is not limited and amounts to an administration of justice. Accordingly, it is an exercise that can be performed validly only by a judge properly appointed under the Constitution. I am sorry I have not got the time to develop this fully. This judgment is an extremely interesting one. It is becoming far too frequent a happening here that the constitutionality of a Bill taken through this House when challenged, shows that sufficient attention was not paid to the Constitution. This is particularly true in a country where there is a written Constitution and where rigidity follows from it. It is in that respect that the Minister and his advisers find themselves in trouble so I strongly suggest that the Minister should reconsider it and pay attention to this judgment and consult further with his advisers.

My simple answer to Senator Lindsay's constitutional argument is that this is not an exercise of a judicial function at all. It is necessary to consider this matter against the whole background of the change in substantive law which we are making in section 49. In regard to unregistered land, a squatter becomes entitled by the mere effluxion of time to the land if he has been 12 years in possession of it, because the Statute of Limitations applies to him. Section 52 of the 1891 Act stipulates that a squatter on registered land can never become entitled to the registered estate by adverse possession but goes on to say that such squatter could apply to the court for an order declaring his title and directing that he be registered as owner. We are making this change in the Bill, or, rather, section 49 makes the change in the substantive law, that from now on the squatter on registered land will be in exactly the same position as a squatter on unregistered land, and he will acquire simply by adverse possession.

The 1891 Act created a judicial function and the court in exercising that function decided whether or not a person could be registered by virtue of adverse possession of registered land but we are doing away with that judicial function. We are not taking it away from the court and giving it to the Registrar. We are abolishing that judicial function and saying that from now on the squatter on registered land will be entitled to acquire by adverse possession, which is the same as the squatter on unregistered land, so that the question of constitutionality does not arise. There is no question of the Registrar exercising a judicial function.

I hope the Minister will be proved right later.

Now that the Minister has divested the courts of this task and conferred it on the Registrar, I take it that he will bring into force without delay an adequate scale of costs to cover the additional work thrust upon the solicitors' profession.

You can take me as dissenting from that.

Question put and agreed to.
Section 50 agreed to.
SECTION 51.

I move amendment No. 7:

In subsection (3), line 32, before "a" to insert "or his duly authorised agent".

I dealt with this on an earlier section. The Minister tells me that subsection (3), which reads:

On registration of the transferee, the Registrar shall deliver to him a land certificate

means that the land certificate can be delivered to the registered owner or his duly authorised agent. If the Minister and his advisers are satisfied that that is the case, although I cannot see anything in the Act——

My advice is that it is a fundamental legal principle that a person may act through and be represented by an agent.

I am quite satisfied with that and withdraw the amendment.

Amendment, by leave, withdrawn.
Section 51 agreed to.
SECTION 52.

Perhaps we can deal with amendments Nos. 8 and 9 together?

Yes. I move amendment No. 8:

In page 22 to add a new subsection as follows:—

"( ) On the registration of a transferee under a voluntary transfer, the fact that it is a voluntary transfer shall be noted on the register and in the absence of such note the transfer shall be deemed to be a transfer for valuable consideration."

This amendment proposes to give notice on the register when a person is registered under a voluntary transfer. The whole idea behind this Bill is to simplify title to land and to bring about a state of affairs in which a person, by inspecting the folio, or its equivalent, will know more or less where he stands. I do not know whether the Minister intends to accept this amendment or not, but if he does not I cannot see any reason why he should not. I might be pardoned for saying that perhaps it is the Civil Service attitude to resist this amendment because, if accepted, it might be easier for a mistake to occur in the land register. It might be they would have to decide what was a voluntary transfer and, more important, they would have to remember to put the note on the folio. It would be in the interests of simplification of title to put the notice on the folio and I cannot see any reason why it should not be done.

Formerly it was the practice to put this note on the folio but the practice was discontinued on the instruction of Mr. Glover, the then Registrar, about 40 years ago. The argument is that the person inspecting the register of registered land is entitled to rely on the register as evidence of the title as it appears thereon. Mr. Glover felt strongly that it was no concern of the purchaser as to how the owner became registered. If we were to accept Senator Fitzpatrick's amendment, it might well be that it would have the reverse effect to what he intends. Mr. Glover makes the point that a purchaser is under no obligation to make enquiries outside the register that might fix him with notice of possible claims. As Senator Fitzpatrick knows, the question of estate duty might arise in this regard. I understand that on a sale the matter of estate duty is covered by standard requisitions. The practice has worked satisfactorily for the 40 years that have elapsed since the direction was given by Mr. Glover at that time.

I should be interested to know what prompted Mr. Glover to give this direction. Did some mistake occur in the Land Registry at the time?

No. I am told he deals with this in his standard treatise on registration.

I think the fact that the Minister mentioned death duties is a reason for the folio. If a person knows that a person from whom he is purchasing has been registered for less than three years, for a voluntary transfer, then he must get a certificate of discharge from death duties, or he must protect himself in some other way if the three years have elapsed.

The purchaser can be at a loss. If he really wants to protect himself adequately he will have to go back and get a copy of the instrument under which his predecessor was registered. I think it is unreasonable. I think a person must investigate the title, notwithstanding the fact that it is registered. I think this defeats the whole object of registration.

It is quite clear from Mr. Glover's book that his view was that this practice was intended to protect the purchaser. The registered owner is entitled to rely on the register.

Amendment, by leave, withdrawn.
Section 52 agreed to.
Sections 53 and 54 agreed to.
SECTION 55.
Amendment No. 9 not moved.
Section 55 agreed to.
Sections 56 to 58, inclusive agreed to.
SECTION 59.

I move amendment No. 10:

In subsection (2), lines 21 and 22, to delete "but such provisions shall be, though not registered, burdens on the land under section 72" and substitute "and unless such provisions are noted they shall not affect the land".

Subsection (2) of section 59 reads:

(2) It shall be the duty of the Registrar to note upon the register in the prescribed manner the prohibitive or restrictive provisions of any such enactment;

That is quite understandable, but it goes on to say:

but such provisions shall be, though not registered, burdens on the land under section 72.

In other words, it says that the prohibitive provisions of any enactment shall be noted on the register and presumably it is the duty of the Department of State, in whose favour this prohibitive provision applies, to see that they are registered. Then it goes on to say if somebody forgets to put this note on the folio these prohibitive provisions shall affect the land. I propose the subsection shall read as follows:

(2) It shall be the duty of the Registrar to note upon the register in the prescribed manner the prohibitive or restrictive provisions of any such enactment; and unless such provisions are noted they shall not affect the land.

That brings me back to the point I made under the last amendment. I think, as far as possible, the public should know where they stand by an inspection of the register. I say the trend here is to run with the hare and hunt with the hounds. The Minister wants to have the benefit of a registration but, at the same time, he wants to reserve to Departments of State, and, indeed, to the register of titles, the advantage of non-registration. I do not think it is reasonable. Indeed, if I were arguing from a strongly professional point of view, I would have accepted the Bill as it stands because it leaves things more complicated. It makes it more necessary to employ a solicitor and justifies a solicitor charging a larger fee. It makes it easier for the legal profession to argue a case for a larger fee, but it is not in keeping with the principle of the Bill.

I am afraid the amendment is unacceptable. In practice, statutory prohibitions are registered and the Bill says they must be. What Senator Fitzpatrick proposes would bring about a situation where the inadvertent omission to enter a statutory prohibition would nullify the prohibition. After all, the important thing is the statutory prohibition. This is something which derives its force from a statute laid down by the Oireachtas in pursuance of some policy or other. It would be illogical to accept that a simple error of omission in registration would be sufficient to defeat a statutory prohibition.

The Minister is saying that as far as the transfer is concerned although two citizens enter into a transfer, it is not worth the paper it is written on unless it is registered within a certain time. I am asking the Minister to accept that prohibition so far as statutory procedures are concerned and take steps to note on the folio that it will not affect the land.

I could not accept that. The statutory prohibition is the important thing. Registration can only be secondary to it.

I do not wish to delay the matter all night but I can argue that the transfer of the owner or the person who buys the land is the important thing and that the registration of that transfer is only secondary. The Minister in the Bill says that the registration is the important thing so far as the ordinary citizen is concerned but, as far as the Department of State is concerned, the statutory prohibition is the important thing and not the note on the folio.

Amendment, by leave, withdrawn.
Section 59 agreed to.
Sections 60 to 62, inclusive, agreed to.
SECTION 63.
Question proposed: "That Section 63 stand part of the Bill".

This is a section on which the Minister can give an explanation about the loss of money on a charge. It is the section dealing with the creation of a charge. If the Agricultural Credit Corporation, for example, decide to lend X £1,000 and X executes a charge on his farm, the procedure at the moment is that when the charge is handed over to the Corporation, the Corporation send X, or his solicitor, the money they have agreed to lend. They get a charge, but, under this Bill, that charge will not be worth the paper it is written on until it is registered on the folio. It seems to me that the Agricultural Credit Corporation, some building society, or other such lender, will in future take the precaution of not parting with the money until the charge is, in fact, registered on the folio. If that should happen, it would be a source of great inconvenience to the general public.

There is actually nothing new in section 62. It is a repeat of the existing section 40 in the 1891 Act and section 13 in the Act of 1942. I do not think it makes any change.

It certainly emphasises the position.

Question put and agreed to.
Sections 64 to 71, inclusive, put and agreed to.
SECTION 72.

I move amendment No. 11:

In subsection (1) to delete paragraph (g).

Amendments Nos. 11, 12, 15 and 16 may be taken together.

They are all part and parcel of the same idea. Section 72 of this Bill is the old section 47 of the 1891 Act and section 16 of the 1942 rolled into one. It is the section which declares that certain rights and burdens can affect registered land without registration. That is out of line with the general trend, which seeks to create a situation whereby the folio will speak for itself and a person inspecting the folio will know where he stands. There are such things as rights-of-way which could not be registered on a folio. It would be unreasonable to expect that they should be and that they should affect registered land without registration.

What I seek to remove from this section are land improvement charges and drainage charges. Surely one Department of State could facilitate another in this matter. The same is applicable to annuities and rent charges payable under the provisions of the Land Purchase Acts. If there is anything due to the Land Commission, surely it is not too much to expect that the Land Commission should register that with the Land Registry under some simple device. Subsections (d) and (e) apply to rights in favour of the Land Commission and the others are rights in favour of the Labourers Acts. The infliction of these burdens on land without registration is out of line with the general trend.

I cannot accept any of these amendments because they seek to amend various Acts, such as the Land Reclamation Acts, the Labourers Acts, and so on. These Acts lay down that these burdens will affect registered land without registration. To accept these amendments would be contrary to the policy laid down in these Acts. We should have to amend them all and that is something we could not contemplate.

Does the Senator withdraw the amendment?

I withdraw the amendment, but what is sauce for the goose should certainly be sauce for the gander.

Amendment, by leave, withdrawn.
Amendments Nos. 12, 13, 14, 15 and 16 not moved.
Section 72 agreed to.
Sections 73 to 115, inclusive, agreed to.
SECTION 116.

I move amendment No. 17:

In subsection (3), line 46, before "(within" to insert "under this Act".

This subsection provides:

When the registration in the Registry of Deeds of any deed or other document within a certain period or otherwise is required by any enactment, registration of the title under such deed or other document (within the same period, where registration within a certain period is required) shall be a compliance with the provisions of that enactment.

I think the idea behind this subsection is to indicate that where registration in the Registry of Deeds is required then registration under this Act will be sufficient. However, I think it is necessary to add the words I have put in "under this Act" to make it clear. In our reading of several other sections, the words "under this Act" are used.

I am advised by the draftsman that the words are unnecessary because registration of title can arise only under this Act. It cannot arise otherwise.

Registrations of title, but not registration.

It says "registration of title", and this can arise only under this Act.

There is no definition of the simple word "registration". I looked for it and I could not find it.

I can only go by what the draftsman advises me.

If the Minister is satisfied, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Section 116 agreed to.
Sections 117 to 119, inclusive, agreed to.
SECTION 120.

Amendment No. 18 has been ruled out of order.

Question proposed: "That section 120 stand part of the Bill".

In subsection 5 (5) (c), a time limit is placed on the making of a claim for compensation and the time is confined to six years. Experienced practitioners know that mistakes of this sort rarely come to light very quickly. It might be many years after the mistake was made in the Land Registry before it would come to light. Therefore, I think that the imposition of a time limit here largely defeats the benefit of compensation.

I want to refer the Senator to this point. In re Ryan's application, 1944, the Supreme Court in construing the provisions of the 1891 Act held that the expression “from the date of the registration in respect of which compensation is claimed” did not necessarily refer to the registration in which the mistake had occurred but rather referred to the registration which caused the loss. The registration of a subsequent disposition for value is usually the registration which causes a loss in such a case. So, the period of six years does not necessarily, or even probably, run from the date on which the mistake has occurred and it is much more likely to run from the date of the registration of a subsequent disposition for value.

"Six years from the time when the right to compensation accrued..."

That time has been taken as the date of registration of a subsequent disposition for value.

Question put and agreed to.
Sections 121 to 125, inclusive, agreed to.
SECTION 126.
Government amendment No. 19:
In page 46, to add a new subsection as follows:—
"(4) (a) Every office under the control of the Registrar as such, or as Registrar of Deeds, shall be open to the public on such days and during such hours as the Minister for Justice may from time to time by order appoint.
(b) The Registry of Deeds Office (Ireland) Holidays Act, 1883, is hereby repealed.
(c) Notwithstanding section 2, this subsection shall come into operation on the passing of this Act."

The purpose of this amendment is to empower the Minister for Justice to regulate by order the days and hours during which the offices under the control of the Registrar, that is, the Land Registry and Registry of Deeds, shall be open to the public. It is desirable that the method of determining the hours of opening of the offices in question should be a more flexible one, so that alterations may more easily be effected as and when required. The recent decision of the Government to extend the five-day week to civil servants will involve changes in these hours and has underlined the need for flexibility.

Amendment agreed to.
Section 126, as amended, agreed to.
Section 127 agreed to.
Schedule and Title agreed to.
Bill reported with amendments.
Agreed to take remaining Stages today.
Bill received for final consideration and passed.
The Seanad adjourned at 10.45 p.m. until 3 p.m. on Wednesday, 1st July, 1964.
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