The advantages of a land registration system are well documented and include:
- easier preparation of documents, since recitals are seldom required and words of limitation are normally unnecessary
- bulky and complicated sets of title deeds are replaced by a single folio and constant re-examination of the title of previous owners is therefore unnecessary
- the Registry maintains a map, based on up to date Ordnance Survey information, identifying the land. The boundaries of a registered holding of land are not guaranteed (Section 64)
- the public nature of the Registry enables anyone interested in a property to examine the relevant folio, the registry map and the documents on which registration is based
It is true that the Rules require the production of a number of formal proofs. It is also true that different transactions require different forms, different procedures and very precise mapping, and if you happen to get any of these aspects wrong the transaction could lose its priority. The aim of these notes is to help you to get them right.
Form of documents
Although there are many instances where the Rules prescribe the use of particular forms, it is normally permissible to modify the forms to deal with particular transactions. However, if a transaction is so unusual that no form is suitable, it would be prudent to submit a draft of the proposed document to the Registry for approval. The draft should be submitted in duplicate and be accompanied by the appropriate fee and a letter explaining the circumstances of the transaction (Rule 172).
Although Registry staff approve the form of the document, it remains the responsibility of the solicitor who prepares a document to ensure that it carries out the client’s intentions.
When preparing a draft for approval it may be useful to bear in mind the following suggestions:
- carefully consider the requirements of the relevant Rule
- give the document a Land Registry heading, stating the county, all relevant folio numbers and the names of the registered owners
- remember that words of limitation are not normally essential
- keep recitals to a minimum
- observe the Registry’s mapping requirements (see below)
- otherwise, prepare the document as you would for a transaction affecting unregistered land
Each registered title has a separate folio number and it is extremely important that the correct folio number is quoted in all documents. Never underestimate the importance of a prefix or suffix in a folio number, for example, folio 1234 Co. Antrim, folio AN1234 Co. Antrim and folio 1234 SDL Co. Antrim would be three separate folios relating to entirely different properties.
Execution of documents
Rule 175 provides that deeds relating to registered land (other than those executed by a corporate body) must be attested by two witnesses or by a solicitor. The execution of other documents (except those executed by a solicitor in his capacity as a solicitor) must be attested by one witness.
The Registrar has published the following practice directions regarding deeds executed by a corporate body:
- Registrar's Practice Direction 1/2015 - Execution of documents by a company
- Registrar's Practice Direction 2/2015 - Execution of releases by lending institutions
Where a document has been executed by way of a mark, the execution must be verified by a solicitor’s certificate or by an affidavit by an attesting witness – see Transfers executed by way of a mark (Rule 175).
Where the Registry returns a document for amendment, it should normally be authenticated by all interested parties. Thus if a transfer which had been executed only by the transferor is amended, it should be authenticated by both the transferor and the transferee (Rule 34). However, if the amendment relates only to an error in a map, or an error in a statement of area, authentication of the document by the parties will not be required if the solicitors acting for all interested parties consent in writing to the amendment.
It is obviously very important that deed maps should be prepared accurately, and most mapping problems will be avoided if the following guidelines are followed:
- whenever possible, use an-up to-date uncertified Land Registry map as the basis for the deed map
- do not use a photocopy of a photocopy as the basis for a map, as the photocopying process often distorts the scale
- a deed map should be based on the largest published Ordnance Survey (OS) scale and should include a legend stating the scale and the OS sheet and plan numbers
- where an enlargement is needed to show precise details, a location map on the largest published OS scale is still necessary
- all boundaries should be accurately drawn and boundary lines should not be unduly thick
- if the property straddles the boundaries of two or more OS sheets or if the property is in a built up-area, it may be worthwhile to obtain an ACE (Address Centred Extract) map which are available from the OSNI Map shop
- when measurements are quoted on a deed map, they must scale accurately. Inaccurate measurements may lead to a deed being returned for amendment and priority being lost
- when acting for a developer, it is advisable to contact the Land Registry Mapping department at a very early stage to agree the development plan. Initial contact should be made through the Solicitors’ enquiries mailbox: Solicitor.Enquiries@finance-ni.gov.uk
- practitioners are asked to note the contents of Practice Direction 1/2019 – Registration of Rights within new build housing developments
Do not make the mistake of assuming that a land certificate is an exact copy of the folio. A folio contains the relevant registrations relating to a piece of land and the land certificate is merely a copy of that folio, which shows the registrations in existence at the time when the land certificate was issued, or last re-issued, by the Land Registry.
It is important to remember that the information contained in a land certificate may be incomplete.
Lodgement of dealings
Rule 195 requires that dealings being lodged for registration must be accompanied by an application in LR form 100. The form has some useful features:
- a covering letter is not required
- the lodging solicitor may indicate, in the appropriate panel, the order in which documents are to be registered
- where an up-to-date address for any party is stated in the appropriate panel it will be inserted in the folio
- a checklist is set out at the end of the form
Priority of dealings
The date of registration of a dealing (other than an application for first registration) is normally the date on which the dealing was lodged in the Registry. However, if a dealing was not in order for registration when it was lodged, its registration date will be the date on which it came to be in order (see Rules 31 to 35). In the case of an application for first registration, however, the registration date is the date on which the new folio is opened (Rule 15).
The boundaries of a registered holding of land are not guaranteed (see Section 64). Therefore, whenever a query about a boundary arises, the first step should be to inspect the document which created the boundary. Practitioners are asked to adhere to the guidance set out in the Note to Practitioners 3/2019 – Mapping queries. Minor amendments to a boundary between folios which have the same class of title can be dealt with by way of a simple rectifying deed (Precedent 2G). However, if the folios have different classes of title, it may be necessary to apply for reclassification (see link below) or to proceed by way of a deed of exchange or a transfer deed.
More substantial amendments, and amendments involving the granting of easements, should also be dealt with by a deed of exchange (see Exchanges of land) or by a transfer. An application for the amendment of a boundary may contain a request under Rule 144, that the boundary be noted as conclusive. Such a request may also be made, where no alteration to the boundary is required. In each of these situations the consent of all interested parties is necessary.
For further details, please see:
Objections to registration (Rule 191)
Any person wishing to object to a dealing before its registration is completed may do so by writing to the Registrar stating the grounds for his objection. Any objection which does not disclose valid grounds may be disregarded. The letter of objection should refer to the relevant folio number and the Registry’s reference, if known.
Registration may not proceed until the objection has been disposed of and, if the dispute cannot be resolved, any interested party may request a hearing before the Registrar to determine the matter. The Registrar now has a discretion in respect of costs, by virtue of Rule 204, and it appears that, in certain circumstances, legal aid may be available for such hearings.
Rectification of the Register (Rule 148)
Section 69 (as amended) authorises the Registrar to (a) rectify clerical errors and (b) order the rectification of more substantial errors where all interested persons consent to the rectification or, having been served with notice of the Registrar’s intention to order a rectification, do not object to rectification.
Where any interested person objects, a rectification may only be made on foot of a court order. A fee is payable for the rectification of any error which does not arise from a mistake by Registry staff.
However, no fee is payable for updating an ownership entry to take account of the alteration of a person’s address, or a change of name on marriage, if the application for alteration is made at the same time as an application for the registration of a transfer or charge.