Introduction
Section 54 requires the Registry to keep trusts off the title. As a result, trustees are normally registered as full owners and nothing on the folio gives any indication that they are trustees. However, beneficiaries are given a measure of protection by Rules 105, 106 and 107 which permit the registration of an inhibition to protect the trusts (see Acquisition of land by trustees below). Where land is held under a settlement, the statutory power to sell the land is vested in the tenant for life rather than the trustees, and the tenant for life may therefore be registered as limited owner of the land.
The entry on the folio relating to such an ownership will include a note identifying the document which created the settlement and naming the trustees, if any. Where a tenant for life is registered as a limited owner, the estate in remainder remains unregistered until the limited ownership comes to an end. This means that, if the remainderman is required to be involved in a transaction with the land, any dealings with the remainder must be disclosed (see Rule 48). Dealings with the estate in remainder, during the continuance of the limited ownership, may be protected by an inhibition.
Transfers creating a life interest
Transfers creating a life interest may be in LR from 10 or LR form 11 if easements or covenants are being created. No special formalities are required although it is important to identify trustees for the purposes of the Settled Land Acts 1882 to 1890. If no trustees are appointed, it may subsequently be impossible to sell the land without the consent of the court if, for example, the remainderman is a minor or is in dispute with the tenant for life.
The transfer may be in the following form. If the trustees are not already noted on the folio, evidence of their appointment must be produced - Precedent 9.E - Certificate verifying the validity of the appointment of a new trustee of a settlement.
Although most transfers of settled land are made under the provisions of the Settled Land Acts, there are some occasions where this is not possible, for example, if there are no trustees or if the transfer is voluntary. In these cases it is essential that all persons entitled to an interest in remainder, including for example, anyone entitled to a charge on the remainder should join in the transfer. The position is governed by Rule 48 and the following documents should be lodged:
- the transfer deed - Precedent 9.F - Transfer by limited owner and remainderman with the consent of a person entitled to a charge on the remainder
- the document which created the settlement (unless this is already lodged in the Registry)
- evidence of any dealings with the remainder, or confirmation that there have been no such dealings - Precedent 9.G - Certificate as to the determination of limited ownership as a result of a transfer by the limited owner and remainderman
- LR form 100 and the appropriate fee
The same formalities are required whether the transfer relates to all or part of the land in a folio.
Transfer by the limited owner to the remainderman
The documents to be lodged are similar to those listed in paragraph although the contents of both the transfer (Precedent 9.H) and the certificate (Precedent 9.I) are slightly different.
- Precedent 9.H - Transfer to the remainderman
- Precedent 9.I - Certificate as to determination of limited ownership
Transfer to the remainderman and another
The formalities are the same as in the paragraph above and the certificate may be in the form of Precedent 9.I above. However, it is important to remember that the interests of both the limited owner and the remainderman must be transferred to the transferees, and it is suggested that the transfer should be on the lines of Precedent 9.J - Transfer to remainderman and another.
Transfer of limited ownership on the death of the limited owner
The formalities are the same as in the paragraph above, and the Certificate may be in the form of Precedent 9.K - Transfer by remainderman to the limited owner.
Termination of limited ownership on the death of the limited owner
No Assent by the Personal Representatives of the Settlor is necessary and an Assent by the Personal Representatives of the limited owner would be entirely inappropriate. The only documents required are as follows:
- a Certificate in the form of Precedent 9.I above
- the limited owners death certificate or a Grant or Representation in his estate
- LR form 100 and the appropriate fee
Acquisition of land by trustees
There are no unusual formalities in respect of such transfers. The declaration of trust may be contained in the transfer deed (in which case the Registry will ignore it) or in a separate deed, which should not be produced to the Registry. Since the trustees will be registered as full owners, it may be prudent to apply for registration under Rule 105 of an inhibition protecting the rights of the beneficiaries.
A charge by all persons entitled under a settlement may be made, in accordance with Schedule 7 Part II of the Act, in Precedent 9.N - Charge by a limited owner and all other persons entitled under the settlement. However, nowadays most lending institutions provide standard form charge deeds which do not readily permit substantial amendments. In such a case it may be desirable to have all the relevant parties complete the standard deed, and to lodge the following documents in the Registry:
- the charge deed in duplicate
- a certificate relating to the estate in remainder - Precedent 9.O - Certificate supporting a charge made by a limited owner and the persons entitled in remainder
- LR form 100 and the appropriate fee
Where existing trustees are registered as full owners, the land may be vested in new trustees by a simple transfer, in LR form 9, which does not need to make any mention of the trust. However, to take advantage of the reduced fee payable on a transfer to new trustees, a covering letter should be produced stating that the transfer is from existing trustees to new trustees.
Where land eg church property has become vested in trustees pursuant to the Trustee Appointments Acts 1850 to 1890, it is not necessary to lodge a transfer deed (Rule 151). Instead, the following proofs should be lodged:
- the deed of appointment of trustees and a certified copy
- evidence that the Trustee Appointments Acts apply
- LR form 100 and the appropriate fee
Where new trustees are appointed in respect of a registered settlement, the note identifying the trustees may be amended under Rule 51 upon lodgement in the Registry of:
- any relevant documents eg a death certificate, deed of appointment etc
- a verifying certificate - Precedent 9.E - Certificate verifying the validity of the appointment of a new trustee of a settlement
- LR form 100 and the appropriate fee
Registered owners who hold land as trustees, having acquired it with capital money arising under a settlement, may apply to have the person entitled under the settlement registered as owner by lodging an affidavit in Precedent 9.P - Vesting of trust property together with LR form 100 and the appropriate fee.