Schedule 5 burdens
Section 38 provides that certain burdens which are listed in Part 1 of Schedule 5 (as amended), and which are briefly described below, affect registered land even though they do not appear on the Register. These burdens relate to:
- death duties
- quit rents and tithe rent charges
- land purchase annuities under Section 27 of the Landlord and Tenant (Ireland) Act 1870
- statutory restrictions on alienation
- covenants and conditions in registered leases
- public rights, customary rights and franchises
- easements and profits acquired by prescription, or created prior to first registration
- certain rights connected with mines and minerals
- occupational leases for 21 years or less
- rights acquired by adverse possession
- rights of persons in occupation or in receipt of rents and profits
- rights excepted from the effect of first registration, where the title is less than absolute
Although Schedule 5 burdens affect land without registration, Rule 97 permits a note of their existence to be registered. Before such a note is entered on the register, the Registrar must be satisfied that the:
- (a) burden exists and
- (b) registered owner consents to the registration. Such applications are quite rare
When acting for a purchaser, it is good practice to require the vendor to supply a statutory declaration confirming that the land is not affected by any of these burdens (Precedent 16.A). The declaration should be retained with the purchaser's title documents and not lodged in the Registry.
Creation of registered burdens
Burdens which are capable of registration may be created in their own right, eg by a deed granting an easement (Precedent 16.G) or a rent charge (Precedent 17.E), or as part of a larger transaction, eg in a transfer or an assent. Where a burden forms part of a larger transaction, it is desirable to indicate whether or not the parties require the burden to be registered.
- Precedent 17.E - Grant of rent charge
- Precedent 16.G - Grant of easement for sewerage and drainage purposes
If an easement is being created it is important to identify both the dominant and the servient tenements. If the dominant tenement is not identified the right may be interpreted as a mere licence in favour of the grantee. Where a grant of easement contains a right to enter the servient tenement for some ancillary purpose, it may well be desirable to restrict that right to a particular portion of the servient tenement.
Cancellation of burdens
Most burdens may be released by the person entitled to the burden, upon the execution of a simple deed of release (Precedent 16.I). However, it will be necessary to produce evidence that the releasor is the person entitled to that burden, unless he is so identified on the folio.
If the burden being released is an easement (Precedent 16.H), it should be noted that if part of the dominant tenement is now owned by a third party that party also has the benefit of the easement (unless a contrary intention was expressed in the transfer deed to the third party). In such circumstances releases by the owners of all the lands which originally formed part of the dominant tenement will be required before the easement can be cancelled.
Although most burdens may be cancelled on foot of a release, special considerations apply where a burden lease is to be cancelled (see Leasehold estates).
Burdens of a personal nature such as rights of residence or revocation may be cancelled on foot of a release (Precedent 16.I above) or on production of evidence that the burden no longer exists because the person entitled has died (Precedents 16.J and 16.K).
- Precedent 16.J - Cancellation of a right of residence (and support) on the death of the person entitled
- Precedent 16.K - Cancellation of a right of revocation on the death of the person entitled
Pending actions (Rule 91)
An application for registration of a pending action as a burden may be made using Precedent 16.C. A pending action which is to be noted on the Register should relate to the title to the relevant land. It would not be appropriate to register an action which does not affect the land or which affects it only indirectly, for example, an action for damages arising from an accident on the land.
A notice of pending action may be cancelled upon the lodgement of:
- a certificate from the proper officer of the court stating that the action has terminated, or
- a court order directing its cancellation, or
- a court order directing a sale, together with a transfer in pursuance of that order, or
- a letter consenting to its cancellation signed by the person who applied for its registration, or his personal representative or solicitor, or
- a letter requesting cancellation on the grounds that the pending action has been registered as a burden for more than five years and the registration has not been renewed