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GAZETTE
JULY
compliance with its terms as entered in the register, and so
imposes on the applicant for registration the onus of
seeing that the registration he applies for complies with its
terms on which registration can be made: for, if it does
not, the registration is refused."
OTHER ENTRIES
Rule 147 deals with the notice of exemption of specified
property from former Crown Rent, Quick Rent, Ec-
clesiastical Tithes Rent Charge, etc. which may be entered
on the Folio and the proofs required for such entry. A
notice of exemption from tax under Section 68 of the
Capital Acquisitions Act of 1976, would appear to come
under the provisions of this Rule.
Agreements and covenants in deeds and leases which
give options to purchase are not registered as burdens but
may be protected by the entry of an Inhibition.
A Lis Pendens can only be registered when the suit in
question is one that affects the title to realty or to chattels
real.
Covenants and conditions relating to the use and
enjoyment of the lands are registered on lodgment of the
prescribed concurrence irrespective of any question of
whether they run with the land or not. It would be
complicated and time consuming for the Registry to
investigate each case. The difficulties of discharging are
set out in Section 69(3) of the Act.
Rules 148 to 150 and 151 deal with the notice of
conclusiveness of boundaries and the evidence which is
required before such a note may be entered on the Folio.
Before 1910 Folios sometimes had without justification
a stereotyped entry that the boundaries were conclusive.
This note is removed when any transaction occurs with
one of these Folios (now). Entry of note as to the
conclusiveness of the boundary is only to deal with the
exact line of the boundary. It is not intended to make
considerable changes in the respective areas and is never
intended to cover gross errors in maps.
LAND CERTIFICATES & CERTIFICATES OF
CHARGE
Part 4 of the Rules deals mainly with Land Certificates
and Certificates of Charge.
The Land Certificate is a certificate of title. It is
prima
facie
evidence of the facts appearing on it as of the date of
its issue. It is not the Land Certificate that is the owner's
proof of title but the Register itself. It is not evidence of the
title to the ownership of the burdens shown thereon.
Rule 162 sets out the cases in which the Land
Certificate must be produced on an application for the
registration of a dealing with the property whose
ownership it certifies. These include dealings by the
Registered Owner, with the consent of the Registered owner
and the personal representative of the Registered owner,
by way of transmission and transmission under a
settlement. Note that Judgment Mortgages are registered
without the production of the certificate. In particular
note that the Land Certificate is not produced in
applications under Section 49. It is always necessary to
examine the Folio or an up-to-date certified copy of the
Folio rather than to rely on the Land Certificate as to the
state of the Folio when dealing with the property.
A registered owner can create a lien on land by deposit
of the Land Certificate. The lien is an equitable charge
only and is subject to the equities that affect the registered
owner at the time of the deposit. The lien generally
attaches to a new Certificate issued when an old
certificate has been lost or destroyed. An applicant for
registration claiming to have acquired title by possession
under Section 49 of the Act does not need to produce the
Land Certificate or cause the Land Certificate to be
produced. An Order may be made under Section 105 for
the production of the Land Certificate for the registration
of any right existing at the time of the deposit against the
registered owner. The right, of course, must not be in
dispute. The deposit of Title Deeds by way of Equitable
Mortgage is of course subject to all pre-existing rights.
Where the Land Certificate is in the custody of some
person other than the applicant and the applicant requires
its production for the purpose of the registration of his
dealing and the person in whose custody it is will not
produce it for the registration, the applicant may apply
for an Order directing him to produce it. (Section 105(2)
of the Act.) If the person who has custody of the Land
Certificate claims that it was deposited with him by way
of Equitable Mortgage he has a right to hold it until the
execution of a charge in his favour; until then the
depositee is not compellable to produce it for any purpose
which would defeat his rights.
The Registrar may only make an Order for the
production of the Land Certificate under Section 105
where it is the registration of a dealing or charge which
can be effected without the consent of the person having
custody of the certificate.
If the depositee of the Land Certificate produces it for
a subsequent dealing for value his lien would be
postponed or destroyed on the registration of such a
dealing.
It would seem that the Registrar has no power to order
the production of a deposited Certificate for the
registration of any transaction for value.
For the purpose of an exchange of holdings by the
Land Commission the Registrar is given power under
Section 30 of the 1965 Land Act to order any person
having possession of the Land Certificate of the old
holding to deliver it to the Registrar of Titles; or if he
satisfies him that it has been lost or destroyed he may
dispense with production. Any claim of lien or other
claims on the old certificate will, from the date of the
registration, be transferred to the Land Certificate in
respect of the new holding. The priority of such claim or
claims will thus not be affected. The Land Certificate in
respect of the new holding will be issued to the person
who had possession of the old certificate.
The Land Certificate is a vital document which must be
produced to the Registry upon most dealings with
registered land. It follows that if it is lost or destroyed an
application to dispense with its production or to replace it
by the issue of a duplicate must be made when any of the
dealings referred to in Rule 162 is lodged.
Safeguards must be provided to prevent a possible
fraudulent double dealing by the Registered Owner.
The grounding affidavit in an application for a New
Land Certificate or for an order dispensing with its
production should give the facts about the loss of the cer-
tificate, the searches made for it and aver that it has not
been pledged as security, if such be the case, and include
an undertaking to lodge the original Land Certificate in
the Registry if subsequently found. The standard practice
is to exhibit in the Affidavit letters from the branch offices
of all banks in the neighbourhood of the applicant's
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