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Assessment of damages arising from failure to register title documents

By: Mark Tottenham BL

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Rosbeg Partners v. LK Shields Solicitors [2018] IESC 23 (Supreme Court, O'Donnell J, 18 April 2018)

Property had been purchased in 1994. The purchasers’ solicitors had undertaken to register title documents in the Land Registry, but failed to do so. The owners sought to sell the property in 2007, at the height of the property market, but the failure to register title documents led to the sale falling through. In the High Court, the loss was assessed at €11 million. On appeal to the Supreme Court, this was reduced to €5.2 million, on the grounds that the registration issue had been remedied by October 2008, and that this was the loss the solicitor was responsible for. O’Donnell J stated: “After October 2008, Rosbeg may have continued to experience a drop in the value of its property, but that can no longer be laid at the door of the defendant’s negligence, at least without very particular evidence and argument.”

Re-registration of bank as private company did not affect validity of charge or sale of lands.

Hallihan v. O'Connor [2018] IEHC 109 (High Court, O'Regan J, 7 March 2018)

The plaintiff was registered as one of the owners of property in 2008, and charged it to a financial institution. The financial institution purported to transfer the lands to a third party in 2015, and he sought to register himself as owner in 2016. The plaintiff objected to the transfer partly on the grounds that the financial institution, having been a public company had re-registered itself as a private company. The court upheld the sale, on the grounds that re-registration of the financial institution did not amount to a sale of the loan. O’Regan J stated: “There is no requirement at law that only banks can recover debts due and owing and in those circumstances, the fact that as and from the 25th February, 2015 ACC Bank plc (then known as ACC Loan Management Ltd) was not a bank, is entirely immaterial to the sequence of registration in this matter.”

An assent was necessary to transfer a beneficial interest in registered land to personal representative

Trentdale Limited v. O'Shea [2018] IEHC 47 (High Court, Creedon J, 25 January 2018)

A creditor was owed €92,903 arising from an order for costs. The debtor bequeathed her entire estate to the defendant in her will and testate in 2009. The creditor was statute-barred from suing the defendant as personal representative of her mother’s estate (under section 9 of the Civil Liability Act 1963). The creditor sought to argue that the defendant had a beneficial interest in the property. However, the court held that, in the absence of an assent that transferred the interest into her name, the claim could not succeed against her, as it was a requirement under section 61(3)(q) of the Registration of Title Act 1964 that an application for registration be accompanied by an assent or transfer. The court distinguished Mohan v. Roche [1991] 1 IR 560, and concluded: “It would seem, therefore, that in the case of registered land, an assent is required to be made by a personal representative in order to vest property in the party entitled thereto, even if said party is, in fact, the personal representative herself.”

Land Registry Rules made provision for registration of charge over ‘after acquired property’

Anglo Irish Corporation Ltd v. Kilquane Ltd [2013] IEHC 659 (High Court, Abbott J, 11 March 2013)

A deed of mortgage and charge was executed in 2004, which purported to charge property owned by the debtor as well as ‘after acquired property’. The mortgage debtor subsequently acquired registered lands. The creditor sought to register the 2004 charge against the lands. In 2010, the Property Registration Authority refused to register the charge. The creditor appealed to the High Court, which allowed the appeal, and determined that the charge could be registered over the property. Abbott J concluded that the charge created an obligation in personam which was transformed into an obligation over the property when the debtor acquired it. He also concluded that the relevant Land Registry Rules created a “schematic, functional context as to how the registrar is to view instruments”, and that there was provision to deal with instruments that might be viewed as ‘improper’.

 

First Published in Law Ireland in May 2018

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