Section 89(1) of the Land and Conveyancing Law Reform Act, which commenced on 1st December 2009 provides that a legal mortgage of land may only be created by a charge by deed. The former 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 have reviewed 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.
However, 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 is prescribed that, where Forms 67 and 68 are not being used, lending institutions may apply to the Authority for the pre-approval of deeds of charge/mortgage conditions. The drafts are to be submitted, in advance, to the Authority by email, if possible. The Banks, Credit Unions and Building Societies will, in the case of residential loans, use a form agreed with the Irish Banking Federation and filed as appendix 1 hereunder. All charges must be one page only and will reference the relevant filed Mortgage Conditions. The mortgage conditions may be uploaded onto the PRA website or a copy can be filed with the Authority under a reference to be allocated by it.
A list of approved solicitors templates regarding bespoke mortgages is contained in Appendix 5
A list of approved commercial mortgages is contained in Appendix 6.
The position regarding Commercial Mortgages and Debentures is currently under review.
Deputy Registrar
August 2010
N.B. This notice only applies to charges/mortgages executed on or after 1st December 2009.
Deeds executed before that date are acceptable either in the old forms or the new approved forms.
Charges executed before 1/12/2009 which subsequently have to be returned to the lodging party for amendment and re-execution are acceptable in the old format.
PRA Contacts:
Setanta, Dublin: Jane Fogarty jane.fogarty@prai.ie
Chancery St., Four Courts: Danny MacArt danny.macart@prai.ie
Waterford: Declan Power declan.power@prai.ie
Roscommon: Niamh Mannion niamh.mannion@prai.ie
Appendix No. 1
IBF (Irish Banking Federation)
Appendix No. 2
AIB Bank
Appendix No. 3
Credit Unions
Appendix No. 4
Local Authorities
Appendix No. 5
Solicitors' Approved Templates
Appendix No. 6
Banks and Financial Institutions
Appendix No 7
Other Organisations