PRAI - Approval of Deeds of Charge (Rule 52 Land Registration Rules 1972)

Section 89(1) of the Land and Conveyancing Law Reform Act, commencing on 1^st December 2009 provides that a legal mortgage of land may only be created by a charge by deed. The old method of creating a legal mortgage over unregistered land, by conveyance or demise, in the case of freehold land, or by sub-demise or assignment, in the case of leasehold land, are abolished. Accordingly all lending institutions will be reviewing their mortgage documentation to ensure that a document which is intended to create a legal mortgage over land is made in the correct form.

A further provision in the amendments effected by schedule 1 of the act is an important change in relation to charges over registered land. Section 62 of the Registration of Title act 1964 provided that a charge over registered land must be ‘in the prescribed form (or an instrument in such other form as may appear to the Registrar to be sufficient to charge the land, provided that such instrument shall expressly charge or reserve out of the land the payment of the money secured)’. The 2009 Act deletes the words in brackets.

A new draft prescribed form of present and future charge, to replace the previous Form 68 in the Land Registration Rules 1972, is now published in the Land Registry (No. 2) Rules 2009. The deed must be one page only with any Mortgage conditions filed on a separate document. The existing form of charge for principal sums, Form 67 of the 1972 Rules, has not been altered.

Rule 52 of the Land Registration Rules 1972 provides:

1) The forms of transfer, charge and other dispositions prescribed by these Rules shall be used in all transactions to which they refer or to which they are capable of being applied or adapted, with such alterations and additions as the transactions may require and the Authority allows.

2) Instruments for which no form is prescribed shall be in such form as the Authority shall direct or allow, the scheduled forms being followed as closely as as circumstances will permit.

In accordance with the foregoing it has been agreed that lending institutions may apply to the Authority for the pre-approval of deeds of charge/mortgage conditions in respect of residential loans and commercial loans/debentures. The forms are to be submitted to the designated Deputy Registrar who will direct the publication of the approved forms as appendices to this Office Notice. The vast majority of Banks and Building Societies will, in the case of residential loans, use a form agreed with the Irish Banking Federation. All residential charges will reference the relevant filed Mortgage Conditions while Commercial Mortgages/Debentures will be integral documents.
Some of the larger firms of solicitors provide ‘bespoke’ mortgages for a variety of clients, both national and international. By their nature these mortgages contain many variables and no sample document can be approved in advance. Instead the various solicitors will provide a template letter to accompany the mortgages for registration. Approved templates are listed together under the heading ‘Solicitors’ Approved Templates’

N.B. This notice only applies to charges/mortgages executed on or after 1^st December 2009.

Deeds executed before that date are acceptable either in the old forms or the new approved forms.

Frank Treacy

Deputy Registrar

November 2009

Appendix No. 1

IBF (Irish Banking Federaton)

Appendix No. 2

Acc Bank plc

Appendix No. 3

Allied Irish Banks plc

Appendix No. 4