The Gazette 1977

JULY

GAZETTE

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 103

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