Abstract
This chapter examines the impact of the register itself. On the face of it the land owner has made a successful application for registration but due to some error in the transaction or by the registering authority their interest is at risk.
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Notes
- 1.
Cooke (2004), pp. 401–405.
- 2.
Cooke (2004), p. 402.
- 3.
For some examples of breach of statutory duty see O’Connor (2005), p. 45.
- 4.
The examination is limited to errors in the title register.
- 5.
Examples include where the wrong purchase monies are stated or the transferee transfers in the wrong capacity e.g. as personal representative and not as beneficial owner.
- 6.
Fitzgerald (1995), p. 445.
- 7.
Ruoff et al. (1986), p. 75.
- 8.
- 9.
Confirmed by Carroll J. in Geraghty v. Buckley High Court Unreported (6 October 1986). Though the Supreme Court in Persian Properties Ltd v. The Registrar of Titles and the Minister for Finance [2003] IESC 12 held that the fact that the initial application to the Land Registry contained an inaccuracy did not relieve the defendants of their obligation to pay compensation to the plaintiff pursuant to section 120(2) since the error in registration had not been caused, or substantially contributed to, by the plaintiff.
- 10.
Deeney (2014), pp. 347–348 does make reference to some related case law but these decisions are not publicly available and shed little light on the core issue.
- 11.
In re Erris Investments Ltd. [1991] ILRM 377.
- 12.
Boyle v. Connaughton [2000] IEHC 28.
- 13.
Crumlish v. Registrar of Deeds and Titles [1990] 2 IR 471.
- 14.
Section 121 of the 1964 Act.
- 15.
The State (Christopher Philpott) v. The Registrar of Titles [1986] ILRM 499. Gannon J. also stated that this measure should only be used to protect the fund from a real probability of a claim for compensation and should relate to an identifiable error made in the registry of a nature for which compensation could be payable in accordance with section 120.
- 16.
As amended by section 55 of the 2006 Act.
- 17.
See Deeney (2014), p. 344 for examples.
- 18.
Fitzgerald (1995), p. 446.
- 19.
Fitzgerald (1995), p. 447.
- 20.
Breen (2000), p. 52.
- 21.
Breen (2000), p. 52.
- 22.
Stepstone Mortgage Funding Ltd v. Tyrrell [2012] IEHC 139.
- 23.
This is a phrase used by McAllister. See McAllister (1973).
- 24.
Thus the registrar’s rectification is limited to errors in the registration process and excludes the possibility of correcting errors in the document presented for registration. See Deeney (2014), p. 341.
- 25.
Fitzgerald (1995), p. 445.
- 26.
Property Registration Authority (2013b).
- 27.
Geraghty v. Buckley High Court Unreported (6 October 1986).
- 28.
Section 120(2) refers to the loss not being caused or substantially contributed to by the act, neglect or default of the person or his agent. This was argued in Persian Properties Ltd v. The Registrar of Titles and the Minister for Finance [2003] IESC 12 but Keane C.J. found this submission was not well founded.
- 29.
Fitzgerald (1995), p. 446.
- 30.
McAllister (1973), pp. 283–284.
- 31.
Assets Co Ltd v. Mere Roihi and Others [1905] A.C. 176 and Re Leighton’s Conveyance [1937] Ch. 149.
- 32.
McAllister (1973), pp. 284 and 282.
- 33.
Fitzgerald was Registrar of Deeds and Titles from 1983 until 1988.
- 34.
McAllister was Registrar of Deeds and Titles from 1957 until 1974.
- 35.
McAllister (1973), p. 289.
- 36.
Deeney (2014), p. 341.
- 37.
Deeney (2014), pp. 374 and 343.
- 38.
Glover (1933), pp. 282–283.
- 39.
Moore v. Moore [2010] IEHC 462.
- 40.
Deeney (2014), p. 346.
- 41.
As amended by section 69 of the 2006 Act.
- 42.
Deeney refers to this as a clear restriction on the right to compensation. See Deeney (2014), p. 347. See also p. 348 for relevant case law.
- 43.
McAllister (1973), p. 301.
- 44.
Property Registration Authority (2013b).
- 45.
Persian Properties Ltd v. The Registrar of Titles and the Minister for Finance [2003] IESC 12. See Deeney (2014), pp. 347–348 for some background to this dispute.
- 46.
Section 120(2).
- 47.
Section 120(3).
- 48.
Section 120(5)(c). The time is extended in the case of disability. See Deeney (2014), p. 347 for some relevant case law.
- 49.
Section 120(4) provides that all compensation is paid out of moneys provided by the Oireachtas.
- 50.
Interview with Greg McDermott ICT Manager Property Registration Authority 1 March 2012.
- 51.
Interview with Greg McDermott ICT Manager Property Registration Authority 1 March 2012.
- 52.
Unless the view was taken that compensation was an adequate remedy.
- 53.
Unless the view was taken that compensation was an adequate remedy.
- 54.
Household Realty Corporation Ltd. v. Liu 2005 CanLII 43402 (ON CA). Also referenced as CIBC Mortgages Inc. v. Chan.
- 55.
O’Connor (2009a), p. 211.
- 56.
See Murray (2007) for details of the stakeholders involved in agreeing this initiative.
- 57.
Arruñada (2010), p. 117.
- 58.
S.O. 2006 Chapter 34.
- 59.
The Act provided protection against the registration of fraudulent instruments, improved the ability to rectify titles, streamlined the Land Titles Assurance Fund (LTAF) process, gave the registrar additional powers to suspend or revoke an individual’s access to the electronic registration system and also increased the fines for real estate related offences.
- 60.
Lawrence v. Maple Trust Co. 2007 CanLII 74 (ON CA).
- 61.
Section 157(1) and section 57(13).
- 62.
Section 1.
- 63.
Murray (2007), p. 7. See sections 23.1–23.4.
- 64.
Murray (2007), p. 6.
- 65.
Section 57(13) of the Land Titles Act.
- 66.
Under section 68(1) of the Land Titles Act only a registered owner is entitled to transfer or charge registered land.
- 67.
United Trust v. Dominion Stores et al 1976 CanLII 33 (SCC).
- 68.
O’Connor (2009a), p. 214.
- 69.
Home Trust Company v. Zivic 2006 CanLII 38359 (ON SC).
- 70.
Rabi v. Rosu 2006 CanLII 36623 (ON SC). Echlin J. said Ontario was experiencing a serious mortgage fraud plague.
- 71.
Contrast this with the earlier decision of Durrani v. Augier 2000 CanLII 22410 (ON SC) where an innocent bank’s mortgage was deemed valid even though the borrower was held not to be the owner of the property. Title was restored to the original registered owner subject to a mortgage they had nothing to do with. See Troister (2004), p. 5. See also Toronto-Dominion Bank v. Jiang 2003 CanLII 38078 (ON SC).
- 72.
O’Connor (2009a), p. 213.
- 73.
Abbey National Building Society v. Cann [1990] 1 All ER 1085
- 74.
Moment in time.
- 75.
See Thompson v. Foy [2009] EWHC 1076 (Ch) in respect of determining the date when an interest is protected by actual occupation.
- 76.
Isaacs v. Royal Bank of Canada 2010 CanLII 3527 (ON SC).
- 77.
- 78.
Order of the Director of Titles ODOT-2007-01 available at http://files.ontariogovernment.ca/ont06_018793.pdf.
- 79.
Section 63 of O. Reg. 690/90 as amended by O. Reg. 439/11 prescribes this as the cessation of a charge or encumbrance and the person who purports to register it is a fraudulent person.
- 80.
Moore and Globe (2003), p. 229.
- 81.
Bucknall (2008–2009), p. 42.
- 82.
Order of the Director of Titles ODOT-2007-02 available at http://files.ontariogovernment.ca/ont06_018794.pdf.
- 83.
- 84.
Murray (2007), p. 9.
- 85.
Sections 57(4)(b) and 57(4.1)(b).
- 86.
Thus there are two separate procedures; one for members of this prescribed class and one for others. See Service Ontario.
- 87.
Section 64 of O. Reg. 690/90 as amended by O. Reg. 439/11.
- 88.
- 89.
See Bucknall (2008–2009), pp. 1–53 for an examination of real estate fraud in Ontario.
- 90.
Section 57(12).
- 91.
Section 57(2).
- 92.
The period is extended in the case of minority or incapacity.
- 93.
Moore and Globe (2003), p. 380. See section 59.
- 94.
This is presumably to cover a situation where B had let the property.
- 95.
In effect A would be treated the same as U and V in Chap. 8 i.e. destructive effects of a registered transaction.
- 96.
James O’Boyle Financial Controller Property Registration Authority by email 13 June 2014. More detailed data from other jurisdictions may be found. For example see Griggs (2001) for an examination of claims made on the Tasmania assurance fund from 1993 to 2000. 22 claims were made during this period and only one claim for fraud. Similarly see Ruoff et al. (1986), p. 904 re claims data for England. HM Land Registry publish details of claims in its annual report. See HM Land Registry (2013), pp. 40–41.
- 97.
- 98.
Note that this is the Director of Titles as per the neutral vocabulary in Chap. 2.
- 99.
Alex Radley Legal and Technical Officer Service Ontario by email 7 June 2012.
- 100.
Ken Crawford Sr. Legal and Technical Analyst Service Ontario by email 27 June 2014.
- 101.
Vicki McArthur Teranet by email 18 June 2014.
- 102.
Ken Crawford Sr. Legal and Technical Analyst Service Ontario by email 27 June 2014.
- 103.
Where a prior registered owner has title insurance they must claim against the insurer rather than seeking compensation from the LTAF.
- 104.
For example Ministry error or an error in the conversion of records.
- 105.
Alex Radley Legal and Technical Officer Service Ontario by email 7 June 2012.
- 106.
Ken Crawford Sr. Legal and Technical Analyst Service Ontario by email 27 June 2014.
- 107.
Service Ontario, pp. 1, 5 and 8.
- 108.
See LTAF Decisions at http://www.ontario.ca/home-and-community/land-titles-assurance-fund-decisions. Accessed 23 June 2014.
- 109.
Alex Radley Legal and Technical Officer Service Ontario by email 7 June 2012.
- 110.
Only decisions issued after the Modernization Act. This excludes one decision made in 2007 which was a French language hearing and decision.
- 111.
Service Ontario is the means by which the government of Ontario delivers services to its citizens.
- 112.
http://www.ontario.ca/home-and-community/land-titles-assurance-fund-decisions. Accessed 23 June 2014.
- 113.
Alex Radley Legal and Technical Officer Service Ontario by email 7 June 2012.
- 114.
See MacInnes and Pinnington (2010), p. 19.
- 115.
Murray (2007), pp. 2–3.
- 116.
Murray (2004), p. 5.
- 117.
Moore and Globe (2003), p. 380.
- 118.
Moore and Globe (2003), p. 380.
- 119.
Moore and Globe (2003), p. 380.
- 120.
Waters (2010), p. 14.
- 121.
There would be no compensation available to ameliorate the risk of an error and the title conferred would not be guaranteed by the state.
- 122.
Muir (2003), p. 317.
- 123.
Muir (2003), pp. 317 and 321.
- 124.
See Flaws (2003) for the impact of agency registration in New Zealand on compensation.
- 125.
See the United Nations Economic Commission for Europe Working Party on Land Administration (2011) for details of how land registries are combatting fraud particularly in the context of increased online access to land registration information.
- 126.
See O’Connor (2003), pp. 1–27 for details of jurisdictions where legislation has been introduced to exclude or restrict the right to indemnity, thus shifting risk to land owners or their representatives.
- 127.
For example British Columbia appears to have a robust eRegistration system. In the past 10 years the LTSA processed over nine million transactions but only two claims related to fraud causing loss of title occurred and were paid from the compensation fund. See BC OnLine.
- 128.
In Ontario this is limited to members of a prescribed class.
- 129.
Cooke (2004), p. 402.
- 130.
Bucknall (2008–2009), p. 45.
- 131.
Cooke (2003), p. 169.
- 132.
Cooke (2003), p. 169.
- 133.
Cooke (2003), p. 105.
- 134.
See Ruoff (1952), p. 118.
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Brennan, G. (2015). The Register. In: The Impact of eConveyancing on Title Registration. Springer, Cham. https://doi.org/10.1007/978-3-319-10341-9_7
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