Registration of Personal Representatives in the Land Registry – Part 2
21 September 2023
We had looked in previous blogs over the last number of weeks issues regarding trusts for land and the operation of the Land and Conveyancing Law Reform Act 2009 and Land Registry practice.
The conclusion from our previous blogs was that it is possible to have a personal representative registered as the owner of the title and a wide range of circumstances arise where this can apply (for example, registration of trustees of a life tenancy, registration by parents in favour of minors or registration as a personal representative simpliciter as trustee of an estate on behalf of beneficiaries).
However, there is one case where the Land Registry will not permit registration of a personal representative as an owner and this is in cases where the personal representative is the applicant in a Form 5 or Form 6 application. So these are applications under s. 49 for an owner based on the statute of limitations (ie squatters applications) be they over unregistered land or registered land.
It is not too far-fetched as to why one would want to have a personal representative apply as an applicant for a squatter’s application. It may be the case that a squatter had a perfectly good application but died halfway through the process or just before the process. There could be a myriad of reasons. There could be a range of beneficiaries or the beneficiaries could be appointed by discretion. In any event, if one makes an application in the Land Registry by a per rep, the following query will normally be raised
There is no provision in our Acts or Rules to register a Personal Representative (see Section61(6)(a) of the Registration of Title Act 1964), however, if it is certified that the sale of the property is imminent (and a copy of the contract for sale is furnished) then the Authority may register the applicant as owner together with the following inhibition “All Dealings by the registered owner are inhibited except a transfer on sale by the registered owner as PersonalRepresentative of ………. “. Otherwise, the estate of the deceased will require administering (i.e‘by lodging the Grant of Probate and an assent by the Personal Representatives vesting the property in the person(s) entitled to the property on the death of the deceased) and the person(s) entitled will have to formally apply for registration.
What section 61(6)(a) states is as follows
(6) (a) Nothing in this Act or in the Administration of Estates Act 1959 shall operate to require the Authority to register as the owner of land a person in his capacity as personal representative.
One may note the stark nature of Section 61(6)(a) which indicates that nothing in the Act requires the Land Registry to register an owner of land as a personal representative. However, that does stand in contrast to Land Registry practice where personal representatives are permitted to be registered as trusts for land. However, it appears for the moment that in first registration cases that a personal representative may not be registered unless one can demonstrate that there is an imminent sale and in such cases registration is permitted.
Hope this helps and if you have any tax, probate, or capacity issues, please do not hesitate to contact me. Colm Kelly, theprobatehub.ie