The main purpose of this Bill is to provide for the extension of compulsory registration of title to all land in the State. Provision is also made for various alterations in registration procedure and practice, and for the consolidation, with suitable amendments, of the existing law dealing with the subject. To assist Senators in their examination of the proposals a detailed explanatory memorandum has been issued with the Bill and, in addition, the Bill itself includes brief side notes indicating the provisions which are new to the law and the existing statutory enactments which are being consolidated.
Registration of title is a system of State registration of ownership of land. It provides a permanent record of title which is guaranteed by the State and can be relied upon by a purchaser with absolute safety. All relevant particulars concerning the ownership of registered land are entered on registers maintained in the Land Registry. In conjunction with the registers there are maintained registry maps on which plans are drawn of the parcels of land of which the ownership is registered. The identity of any registered land is established from the particulars in the register and the plan on the relevant registry map. The big advantage of registration is that it dispenses with the need for a separate, exhaustive investigation of title by private individuals on the occasion of every dealing for value. This repeated investigation of title in the case of unregistered land is wasteful of time and energy and involves inconvenience and expense for the parties concerned.
Registration of title is in operation in many European countries including Germany, Switzerland, Austria and Hungary, as well as in Australia, New Zealand, most of Canada and many of the States of the American Union. The system is in course of being extended throughout England and Wales and its introduction in Scotland was recommended last year by the Reid Committee.
The system has been operating in this country since 1892. It was introduced for the purpose of providing a cheap, simple and effective system of recording transactions in land bought out under the Land Purchase Acts. Land acquired in this way was made compulsorily registrable under the Registration of Title Act, 1891, and it is estimated that approximately 80 per cent of all land in the country— chiefly rural land—is now registered. The superiority of the system for all purposes is such that I am satisfied that its extension to all land in the State is fully warranted.
Unfortunately, experience both here and in Britain shows that a system of voluntary registration will not succeed and that the only way in which registration of title can be extended to all land is by compulsion. Provision is, therefore, made in Part III of the Bill for the gradual extension of compulsory registration to all land. The property affected by this proposal will, in the main, be that comprised in urban areas.
The principal new machinery for the extension of compulsory registration is contained in sections 24 and 25 of the Bill. Section 24 provides that the Minister for Justice may make orders applying compulsory registration to individual counties or county boroughs or parts thereof. In an area in respect of which such an order is in force, registration will be compulsory on the occasion of any conveyance on sale of freehold land or grant or assignment on sale of a leasehold interest.
To ensure ample warning for all who may be affected, the operative date for an order will have to be not earlier than six months after the making of the order. Section 25 provides the sanction for the enforcement of compulsory registration. The effect of the section will be that, in any case in which registration becomes compulsory, a conveyance on sale or grant or assignment on sale will not vest the estate or interest purported to be conveyed, granted or assigned unless, within three months, the purchaser becomes registered as owner. This period may be extended by the Registrar or the court where circumstances warrant.
One advantage of introducing compulsory registration following a sale is that the title to the land will have been examined by the purchaser's solicitor and the documents of title will be available. The investigation of the title by the Land Registry will thereby be greatly facilitated. Another advantage is that applications for first registration will be kept to manageable proportions. Quite obviously, the rate at which compulsory registration can be extended will be limited by the capacity of the Land Registry to handle new registrations and it will be necessary to proceed cautiously in the initial stages so as not to overburden the system.
Provision is made in section 23 of the Bill for compulsory registration of all land acquired after the commencement of the proposed Act by Government Departments, State-sponsored bodies and local authorities. This provision will apply irrespective of whether the land is situated in a compulsory registration area. I consider that it is only fitting that public bodies should set a headline for private landowners by helping to extend the system of registration of title as rapidly as possible to all land in the State.
Existing procedure for the voluntary registration of urban property provides only for registration of ownership with an absolute, or good, title. While it may be anticipated that, in the majority of cases of first registration under the new compulsory provisions, the owners will be able to show a good title to their property, it is inevitable that some doubtful or defective titles will occur, the registration of which with an absolute title would prove difficult and troublesome.
To enable titles of this kind to be registered in compulsory areas without undue difficulty or delay, it will be necessary to amend existing registration procedure so as to provide for the registration of ownership with qualified or possessory titles. Suitable provisions to this effect are contained in sections 33 and 40 of the Bill, which relate, respectively, to freehold land and leasehold interests. These provisions will enable a qualified title to be given where it appears to the Registrar that the title can be established only for a limited period or subject to certain reservations.
Where neither an absolute nor a qualified title can be given the Registrar will be able to give a possessory title on the basis of such evidence as may be prescribed. As the name implies, a possessory title will be dependent upon actual occupation of the land or upon receipt of the rents and profits issuing out of the land, and not necessarily upon a documentary title. Registration with a possessory title will not prejudice the enforcement of any rights subsisting or capable of arising at the time of registration and, that being so, a purchaser will have to investigate the title prior to registration in the same manner as if the land were unregistered.
Registration with a qualified title will not prejudice the enforcement of rights specifically noted on the register as excepted from the effects of registration. In the case of leasehold land it is proposed that registration may also be effected with a good leasehold title. This would be appropriate where the title of the lessee to the leasehold, as distinct from the title of the lessor to the freehold, is sound and can be approved by the Registrar. The precise effect of registration with each class of title is indicated in sections 37 to 39 and 44 to 47.
It is, of course, the aim that, in due course, all titles on the registers should be absolute ones, and machinery is, therefore, provided in section 50 for the conversion of qualified and possessory titles into absolute or good leasehold titles and for the conversion of good leasehold titles into absolute titles. The process of conversion may be carried out either in consequence of the production of additional evidence as to the title, or as a result of the lapse of time, or both. The Registrar is to be given a general power to convert where he is satisfied as to the title.
In addition, in the case of urban land registered with a possessory title, there will, after fifteen years, be automatic conversion of the title on the registration of a transfer or other disposition for value. The period of fifteen years is selected as an adequate and appropriate period within which third parties may substantiate claims or by the expiration of which defects in title may be deemed to be cured. By comparison, the ordinary limitation period for actions to recover land is twelve years.
In the case of land bought out under the Land Purchase Acts, that is to say, most rural land, special arrangements are provided in section 50 to expedite the elimination from the registers of the notices of equities to which the bulk of such land is subject. I should explain that land bought out under the Land Purchase Acts is registered subject to equities because, owing to the large number of transactions under those Acts, the Land Commission could not examine the title of a purchaser to his previous tenant interest in the land.
Instead, the fee simple vested in him by the Commission was deemed to be a graft on his previous interest and he was registered "subject to equities", that is to say, subject to the rights of any other persons having claims against this previous interest. Existing law provides for the cancellation of the notice of equities on application by the registered owner, but the number of cancellations effected annually is relatively small and it is estimated that about three-quarters of all existing registered holdings are still subject to equities. Indeed, this is one of the main shortcomings in our present system of registration of title, as the existence of the notice of equities throws on persons dealing with the registered owner the onus of investigating the title prior to first registration.
I consider it essential for the satisfactory operation of the system that equities should be cleared from the registers as quickly as possible. Accordingly, subsection (3) of section 50 of the Bill provides for the cancellation of equities at the discretion of the Registrar, in two types of cases: firstly, on the occasion of any change of ownership or the creation of any charge where the land has been registered for more than thirty years; and, secondly, on the occasion of a transfer or charge for value where there has been a previous registered transfer for value more than twelve years before.
In the first case the period of thirty years is selected because it is the maximum limitation period of actions to recover land, being the period applicable in the case of disability. The second type of case is so devised as to ensure that the title will have undergone two careful and independent scrutinies, separated by a period adequate, in the ordinary course, to cure any latent defects. It is envisaged that, under these proposals, cancellation of the equity notice will be virtually automatic in the great majority of cases, while, at the same time, the Registrar will have discretion to leave the notice undischarged in the exceptional case where it appears to him that cancellation would cause injustice to a third party.
In addition to establishing machinery for the extension of compulsory registration, Part III of the Bill provides for various amendments of the law relating to registration. The object of these amendments is to cure defects, which, over the years, have manifested themselves in the existing law and generally to improve the system of registration of title so as to enable it to cope with the conditions expected to be encountered in registering urban property. The proposed amendments, are, for the most part, technical in character and do not involve any subsantial matters of principle. I propose, therefore, to refer very briefly only to a few of the more important ones.
Section 49 relates to the acquisition of registered land by adverse possession against the registered owner. It provides that the Statute of Limitations shall in future apply to registered land in the same way as to unregistered land and that the Registrar shall have power to register a squatter as owner without a court order declaring his title. I consider that there is no good reason why persons who have acquired a title to registered land by adverse possession should be forced to incur the trouble and expense of applying to the court for an order declaring their title. Under existing law, cases based on adverse possession are regularly dealt with and decided by the Registrar on applications for first registration and for the discharge of equities and where the personal representative of a deceased registered owner claims to have acquired by possession the shares of the other next-of-kin. In all these cases the possession on which the claim to title is based is adverse to an unregistered interest in land so that the Statute of Limitations applies in the ordinary way.
Paragraph (b) of subsection (3) of section 61 proposes to relieve the Registrar of the responsibility of ensuring that the personal representatives of a deceased registered owner are acting correctly and within their powers under an assent or transfer. At present, on the production of an assent or transfer from the personal representative it is the practice of the Registrar to examine the will of the deceased in order to satisfy himself that its terms are being properly interpreted and implemented. If the owner died intestate the Registrar similarly satisfies himself that the rules of intestate succession are being observed. I consider that it is not appropriate that the Registrar should have any responsibility for ensuring that the personal representatives are acting correctly in such cases. His position vis-á-vis personal representatives should be the same as that of a purchaser. A purchaser from personal representatives is not concerned with the terms of the will of the deceased or the observance of the rules of intestate succession but is entitled to assume that the personal representatives are acting correctly in selling the property of the deceased. It is no part of the duty of the Registrar to supervise the administration of estates; and if a disposition of registered land is made which is not in accordance with the terms of the will or the rules of intestacy, the responsibility must be solely that of the personal representatives.
Section 81 provides that a right of residence in or on registered land, whether a general right of residence on the land or an exclusive right of residence in or on part of the land, shall be deemed to be personal. This provision is designed to cure the anomalous situation resulting from a majority decision of the Supreme Court in the case of the National Bank v.Keegan [1931] I.R. 344, in which it was held that an exclusive right of residence, such as a right to the exclusive use of a particular room or rooms in a dwelling house, conveyed an equitable life estate in the property, entitling the grantee, for example, to let the rooms to strangers. In the vast majority of cases this would be quite contrary to the intentions of the parties.
The accuracy of registered titles will continue to be guaranteed by the State. Thus section 120 of the Bill provides for the payment of compensation by the State in respect of loss incurred by registered owners and others as a result of official errors in registration. Paragraph (e) of subsection (1) of this section is a new provision and provides that a person who suffers loss by reason of the inaccuracy of any office copies of a register or registry map, or of documents or plans filed in the Land Registry, shall also be entitled to compensation.
Part IV of the Bill deals with the devolution of registered land on the death of the registered owner and the rules of beneficial succession to such land where the registered owner dies intestate. The provisions of this part are mainly for the purpose of consolidation. In relation to succession of intestacy, however, an important change is proposed in section 111 which provides that all registered land shall be distributed as if it were personalty. This will chiefly affect freehold land in urban areas when it becomes registered under new compulsory provisions. Instead of, as at present, descending as realty to the heir-at-law, it will, under the new proposal, be distributed amongst the next-of-kin. Existing compulsorily registered land is already distributed in this manner. I hope during the present session of the Oireachtas to introduce a comprehensive new Succession Bill which will provide, inter alia, for the complete assimilation of the law respecting real and personal property, so that all realty, whether registered or unregistered, will be distributed as personalty. In the meantime, I am proposing that the change should be effected under this Bill as respects all registered land.
To enable the Land Registry to cope with the additional work that will arise as a result of the extension of compulsory registration, I am making arrangements to augment the existing staff—legal, mapping and clerical—in the central office and to provide additional accommodation. In the past, transactions in the Land Registry have, unfortunately, tended to be subject to delays, but I must emphasise that this has been due to shortage of staff and other administrative factors and not to any defect in the system of registration of title. The situation is now being remedied and I can assure the House that I intend to see to it that the organisation of the Registry will in future be maintained at maximum operating efficiency.
The bulk of the cost of operating the Land Registry is at present recoverable in the form of registration fees, and the net charge on public funds is not significant. The existing policy of, so far as possible, fixing Land Registry fees at such a level as to make the Registry self-supporting will be continued under the new legislation. This is provided for in section 14 of the Bill. It is sometimes suggested that the fees are unreasonable and excessive. This criticism is in my opinion completely unfounded, as the following example chosen at random will serve to show. In the case of a typical suburban dwelling house, the market value of which is, say, £3,000 and in respect of which the poor law valuation is, let us suppose, £30, the fee on first registration in the Land Registry would be £4 5s. On a subsequent registered transfer on sale, the fee would be £12 6s. I think most Senators will agree that by no stretch of the imagination can either of these fees be said to be excessive, either in relation to the value of the property or having regard to the advantages accruing to the parties from the registration of the title. It should be remembered, also, that registration fees constitute only one of the items going to make up the costs and outlay involved in the transfer of property and that, when account is taken of legal fees, the total cost of transferring registered property— assuming the title to be an absolute or good one—is appreciably lower than in the case of unregistered property. In the case of the house mentioned in the example which I have already given, the total costs involved in the transfer on sale, that is to say, the combined costs of the vendor and purchaser, would be of the order of £202 if the property were registered, as compared with £266 if unregistered.
I am satisfied that if the legislative proposals embodied in this Bill are adopted they will constitute a far-reaching and valuable reform. Land is vital to the needs of society and to the economic activity of the nation. It is essential, therefore, that titles to land should be clear and certain and that land should be capable of being transferred in a cheap, simple and secure manner. What this Bill proposes to do is to extend to the whole country the system which has proved itself superior for all these purposes, namely, registration of title.
The Bill is, in many respects, a technical and difficult one and, for that reason, any detailed discussion of the measure would, perhaps, be more appropriate to Committee Stage. When we reach that Stage, I shall, of course, endeavour to furnish any additional information or assistance which Senators may need to enable them to examine and assess the various provisions.
I commend the Bill to the House and ask that it be given a Second Reading.
