Certificates of charge
Changes in legislation removing the requirement for Certificates of Charge to be lodged as part of the documentation supporting registration became operational on 3 October 2011. While the legislation removes the need for applicants to lodge Certificates of Charge, applications can still be lodged for issue of Certificates of Charge.
Form of charge deeds
Rule 66 provides that a charge for payment of money may be in LR form 28 (Precedent 17.A). Where a charge relates only to part of the land in a folio, the charge deed should refer to a map, which accurately indentifies the land to be charged, and a covering letter should also be lodged explaining whether a new folio is to be opened for the portion charged. Rule 66 also prescribes forms for a charge for future advances and a charge by way of annuity.
It is not mandatory to use any of these forms, and lending institutions are entitled to produce their own standard charge deeds. Such documents are acceptable to the Registry but care should be taken in their completion to ensure that the charge deed:
- is dated
- contains a Land Registry heading
- contains details of the Registered Owners names and the Borrowers names. These must correspond unless the Charge has been lodged with another registration and the borrowers names correspond with the transferees/lessees
- identifies the property accurately, refers to the relevant folio and indicates whether the property to be charged comprises all or part of the land in the folio. All too often charge deeds refer to a property by its postal address but omit the vital expression "being all the land comprised in the above mentioned folio"
- charges the property with payment to the lender of the sum to be secured
- is properly executed
Charges created by companies
For information on charges created by companies, please see:
Where a charge created by a company is lodged for registration it should be accompanied by proof that the charge has been registered with the Registrar of Companies (Rule 68).
Charges of land comprised in a settlement
Land which is the subject of a settlement may be charged by all persons entitled to an interest under the settlement - Acquisition of land by trustees.
Charges of land comprised in transfers of part or leases
It often happens that a transferee, or lessee, of part of the land in a folio creates a charge before the transfer or lease has been registered. In these circumstances the number of the parent folio should be inserted in the heading of the charge, followed by the word "part", and the description of the charged property should be along the following lines:
"That part of the land in the above folio which is comprised in a transfer/lease dated ........ and made between the above named registered owner of the one part and the borrower of the other part (and which is situated at and known as ..........)".
Charges of land comprised in applications for sub-division
It is not uncommon for registered owners, particularly farmers, to apply for sub-division of a folio so that a charge which is to be registered against a dwelling house will not affect the rest of the land. The heading of the charge deed should state the folio number followed by the word "part", and the description of the charged property should state - 'That part of the land in the above folio which is shown coloured ….. on the map attached to an application for sub-division dated .......... (and which is situated at and known as ..........)".
In transactions of this type lending institutions often insist that the land being charged should enjoy easements over the remaining land in the parent folio. However, this may create a problem because a person cannot grant himself an easement over his own property. The usual method of overcoming this difficulty is to transfer the land in one of the folios into the joint names of the registered owner and his wife. An alternative approach is to grant the lending institution a power to create easements over the land in the parent folio, in the event of it exercising its power of sale, see:
Inhibitions in charge deeds
Where a charge deed incorporates an inhibition, a request for registration of the inhibition should be made in LR Form 100. Unless such a request is made, and the appropriate fee is paid, the inhibition will not be registered.
Orders charging land
An application to register an Order Charging Land, where the debtor is a registered owner of land, may be made by lodging an official copy of the charging order, certified by the Enforcement of Judgments Office, together with LR form 100 and the registration fee. If the debtor is a company, three official certified copies of the charging order are required. (See Rule 88(1) and Article 50 of the Judgments Enforcement (NI) Order 1981).
Where an Order Charging Land is made against a debtor who is entitled to an estate in land but is not a registered owner, an application may be made for registration of a Notice of Order Charging Land pursuant to Article 48 (Precedent 17.F) of the Judgments Enforcement (NI) Order 1981.
The application Precedent 17.F - Notice of order charging land pursuant to Article 48 should be accompanied by:
- an official copy of the charging order, certified by the Enforcement of Judgements Office
- where the debtor is a company, two copies of the application certified by the applicant or his solicitor, and
- LR form 100 and the registration fee - see Rule 88(2)
Where the debtor is a lessee under a lease created out of registered land after 1 October 1992, and the relevant leasehold folio has not yet been opened, a Notice of an Order Charging Land may be registered against the parent folio in accordance with Rule 88(3). The formalities are similar to those stated in the paragraph above, except that the application should be made using:
Matrimonial charges
An application to register a Matrimonial Charge or a Civil Partnership Charge, arising under the Family Law (Miscellaneous Provisions) (NI) Order 1984 or the Family Homes and Domestic Violence (NI) Order 1998, may be made in accordance with Rule 92, by lodging:
- LR form 43 (Precedent 16.E) - Application by a wife/ husband/ civil partner for a matrimonial charge where her husband is registered owner of land*
*Note: This precedent addresses the most common situation, but it may be amended if the application is made by a husband or civil partner - an official copy of the applicant's marriage or civil partnership certificate
- LR form 100 and the registration fee
Notices of deposit of land certificate
A person with whom a Land Certificate has been deposited as security may seek to protect his equitable interest by applying for registration of a notice of the deposit under Rule 137. The documents to be lodged are:
- the Land Certificate
- Precedent 17.J - Notice of deposit application, and
- LR form 100 and the registration fee
If a depositary subsequently wishes to sell land as a mortgagee in possession, he must first obtain, and lodge in the Registry, a court order declaring the land well charged and ordering the land to be sold - Transfers by a charge owner as mortgage in possession (Rule 41).
Where a transaction relates to part of land affected by a notice of deposit and the depositary consents to the transaction, evidence of his consent should be produced. Such consent may be embodied in the document which effects the transaction or in a separate document see:
A notice of deposit may be cancelled on foot of an application in (Precedent 17.S) which should be accompanied by LR form 100 and the appropriate fee.
Postponement of charge
Where a registered charge is to be postponed in favour of a subsequent charge, a Deed of Postponement (Precedent 17.U) should be executed by the owner of the existing charge, and this should be lodged in the Registry together with:
- Precedent 17.U - Deed of postponement
- the new charge, if any (normally in duplicate)
- LR form 100 and the registration fee
Sub-charges
The owner of a charge may raise money on the security of that charge by creating a sub-charge (see Rule 69 and Precedent 17.M). The documents to be lodged in the Registry on the registration of a sub-charge are:
- Precedent 17.M - Deed of sub-charge (normally in duplicate)
- LR form 100 and the appropriate fee
Charges by way of substituted security
The purpose of a charge by way of substituted security is to release property from a charge and, at the same time, replace it with other property. Deeds of Substituted Security are most commonly encountered in leasehold merger situations, where it is agreed that a charge affecting the leasehold estate should be "carried up" and registered against the reversionary estate. The documents to be lodged are:
- Precedent 17.L - Deed of substituted security prepared in duplicate and executed by all parties
- any other relevant documents (for example transfer, applications for merger)
- LR form 100 and the appropriate fee
Transfer of ownership of a charge
The owner of a charge may transfer his interest in that charge in accordance with Rule 67, by deed (Precedent 17.N). The documents to be lodged are:
- Precedent 17.N - Transfer of ownership of a charge
- LR form 100 and the registration fee
Cancellation of charges
Please see the Registrar's Practice Direction 2/2015 - Execution of releases by lending institutions.
There are a number of methods by which a registered charge may be cancelled:
- by a receipt executed by the charge owner in accordance with Rule 72, LR form 33 (Precedent 17.O) - Receipt by a registered owner of a charge
- by a release executed by the charge owner in accordance with Rule 73, LR form 34 (Precedent 17.P) - Release of land charged from a charge. Such a release may relate to all or part of the land which is subject to the charge
- by a vacate endorsed on the original certificate of charge
- by a vacate endorsed on the charge deed
- by a court order
- on a sale of the land by the charge owner, or the owner of a prior charge, as mortgagee
- by the production of evidence which satisfies the Registrar that the charge should be cancelled (see paragraph below) an order Charging Land may be cancelled by any of the foregoing methods or:
- (a) by a Certificate of Satisfaction issued by the Enforcement of Judgements Office or
- (b) on a simple request made after the expiration of 12 years from the date of the judgement
By virtue of Rule 74 the Registrar has power to authorise the modification or cancellation of a charge where he is satisfied that it is appropriate to do so. The evidence necessary to satisfy the Registrar will depend very much on the facts of each individual case, but most applications made under this Rule relate to charges which have become statute barred. An application for cancellation of a statute barred charge may be made by lodging:
- Precedent 17.T - Application for cancellation of a statute barred charge
- LR form 100 and the appropriate fee
Variation of the terms of a registered charge
An application for the entry of a note that the provisions of a charge deed have been varied may be made by lodging:
- a deed of variation in duplicate
- LR Form 100 and the registration fee
No precedent is suggested for such a deed because lending institutions normally specify their own individual requirements. However, the deed should contain a Land Registry heading, identify the registered owner and the charge owner, and refer to the date of registration of the charge.
Where the variation would have a prejudicial effect on the rights of the owner of a subsequent charge, a consent executed by such subsequent charge owner should be produced.