The Gazette 1977

GAZETTE

JULY

Under Rule 61 the priority in which dealings received for registration should rank is stated. The date of registration, with minor exceptions, is the date of lodgment except in the case of First Registration which is the date on which the draft folio or draft entry is settled. A person claiming as tenant-in-common of an undivided share in the property must state the share to which he is entitled. This is frequently neglected. Under Rules 68 and 71, an applicant who is a trustee may have entered on the Register an inhibition to restrict registration under dispositions that are unauthorised by the trust. Formerly it was his duty to have such an inhibition entered. An applicant for first registration who is a trustee may apply similarly, under Rule 49. Note that in Rule 70 dealing with applications for sub- division reference is again made to the fact that the plan of the property should be drawn on the current largest scale map published by the Ordnance Survey referred to in the consent of the Land Commission. In the case of the small areas, say a building site, the Land Commission do not now require that an applicant for consent to subdivide must necessarily lodge a copy map of the entire holding. On a transfer subject to an existing rent or burden a covenant to indemnify or exonerate the other party from a rent or burden may be noted in the Register. Rule 73. Under Rule 74 an applicant for registration as owner as transferee under a sale from a personal representative may apply for the cancellation of any Judgment Mortgages on the Folio, that is Mortgages against the estate or interest of a person who has a beneficial interest in the property under the Will of intestacy of the deceased owner. Rule 77 deals with Companies, the registration of Companies and the evidence on which the Registrar may act in making entries on the Register. He shall not inquire whether a transfer by the company is incidental to the objects of the company. Rules 78 and 79 deal with registrations under the dispositions in defeasance of the estate or interest of the registered owner and the notices that may be sent in connection therewith. TRANSMISSIONS There are different forms and procedures in transmission cases depending on whether the death took place before 1st June 1959 or subsequently. These are set out in Rules 88 to 92 with references to the appropriate forms. These are cases in which mistakes are frequently made perhaps through not checking the Rules and Forms sufficiently. Note the effect of the Legitimacy Act 1931 and the Adoption Act 1952 in extending, so to speak, the classes of next of kin of an intestate registered owner. There must be a consent or concurrence to the registration of a burden under Section 69(2) of the Act. Rule 103 sets out the persons whose concurrence in the registration of burdens may be accepted in lieu of the concurrence of the registered owner. The solicitor acting for such a person may give the concurrence on his behalf. Rule 106 lays down that the owner of a registered burden shall not as such be entitled to the custody or delivery of the Land Certificate or Certificate of Charge of the property on which his burden is registered. This follows Section 67 of the Act. It is a rule which in many cases does not seem to be taken into account by institutions. Note that sub-section 2 of Section 67 states 102

that every stipulation in relation to a registered charge of' lands whereby the custody of the Land Certificate in respect of such lands is to be given to the registered owner of such charge shall be void. Rule 114. On the Registration of a charge created by a Company, a Certificate should be produced to show that the charge has been registered in accordance with Section 99 of the 1963 Companies Act. If it is not, a note to that effect will be registered on the Folio. JUDGMENT MORTGAGES Judgment Mortgages are a notoriously thorny subject and the difficulties experienced by judgment creditors in recovering their money have been the subject of numerous cases before the Courts. The Rules for the registration of Judgment Mortgages are straightforward. (RR. 118-122). Since the passing of the 1964 Act, the land, the subject of the Judgment, is sufficiently described by reference to the folio number and the County in which the land is situate. The registration of a judgment as a mortgage against the interest of a joint tenant of unregistered lands severs the joint tenancy — but that does not appear to apply to registered land. In practice on registration of any transmission of ownership or on death intestate of one of joint owners where a Judgment Mortgage has been registered against one, we inquire who the next of kin are (1) as though he had (bed as joint tenant and (2) as though he had died as tenant in common. Failure to state costs accurately in the Judgment Mortgage affidavit or to expressly waive them has the effect of rendering the registration of such Judgment Mortgages invalid. When notice of a Judgment Mortgage against a company is registered, a copy of the Judgment Mortgage affidavit is sent by the Registry to the Registrar of Companies. Other burdens such as leases, rent charges and easements are dealt with in Rules 123 and 130. Since 1967 on the registration of a Lease as a burden where the unexpired residue of the term is more than 21 years the ownership of the Lease must also be registered and entered in the appropriate Register. Regardless of whether the documents may indicate that there is unpaid purchase money a lien for unpaid purchase money is not registered unless application is made for such an entry under Rule 126. CAUTIONS AND INHIBITIONS Rules 131 and 146 deal with Cautions and Inhibitions. The object of an Inhibition is like that of a Caution, to protect unregistered rights against registrations under dispositions for value that would defeat them. Mr. Glover has described the difference as follows — "a Caution protects by enabling the cautioner to prevent such a registration; it always throws on him the onus of taking the action necessary to prevent the unregistered right that conflicts with his own of being converted by registration into a legal interest in the land. An Inhibition may also by its terms impose on the inhibitor the onus of preventing the registration applied for; it does so when the Inhibition is against registrations under dealings without notice to him. But it is usually in the form of a restriction on registration that prevents all registrations, except those made in