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Charges

Certificates of Charge

8.1 It is normal practice to prepare charge deeds in duplicate so that one copy may be filed in the Registry and the other may be returned for retention by the lender. Most charge owners require a Certificate of Charge and, unless a "long form" of certificate is expressly requested, the Certificate of Charge will be endorsed on the copy of the deed which is being returned. The Certificate of Charge is evidence of ownership of the charge (Rule 127), and should normally be produced in connection with any transaction to which the charge owner is a party (Rule 128).

8.2 Where a Certificate of Charge has been lost or destroyed, an application for a duplicate Certificate may be made in a similar manner to an application for a duplicate Land Certificate (see Rule 132 and paragraph 1.14 ante). However, it is not necessary to apply for a duplicate Certificate if the charge is being released. Instead a release of charge should be executed (see paragraph 8.23 post) and an application should be made requesting the Registrar to dispense with production of the Certificate of Charge in connection with that release (Rule 130(3)).

Form of Charge Deeds

8.3 Rule 66 provides that a charge for payment of money may be in LR form 28 (Precedent 63). Where a charge relates only to part of the land in a folio, a covering letter should also be lodged explaining whether a new folio is to be opened for the portion charged. Rule 66 also prescribes forms for a charge for future advances and a charge by way of annuity.

8.4 It is not mandatory to use any of these forms, and lending institutions are perfectly entitled to produce their own standard charge deeds. Such documents are acceptable to the Registry but care should be taken in their completion to ensure that:

  • they contain a Land Registry heading
  • they identify the property accurately, refer to the relevant folio and indicate whether the property to be charged comprises all or part of the land in the folio. All too often charge deeds refer to a property by its postal address but omit the vital expression "being all the land comprised in the above mentioned folio"
  • the borrower charges the property with payment to the lender of the sum to be secured
  • the document is properly executed

You can get more information by following the link below:

Charges created by companies

8.5 Where a charge created by a company is lodged for registration it should be accompanied by proof that the charge has been registered with the Registrar of Companies (Rule 68). It is also necessary to satisfy the Registry that the company is empowered to enter into the charge (see para 7.14 and Precedent 57 ante).

Charges of land comprised in a settlement

8.6 Land which is the subject of a settlement may be charged by all persons entitled to an interest under the settlement (see paragraph 3.10 ante).

Charges of land comprised in transfers of part or leases

8.7 It often happens that a transferee, or lessee, of part of the land in a folio creates a charge before the transfer or lease has been registered. In these circumstances the number of the parent folio should be inserted in the heading of the charge, followed by the word "PART", and the description of the charged property should be along the following lines:

"That part of the land in the above folio which is comprised in a transfer/lease dated ........ and made between the above named registered owner of the one part and the borrower of the other part (and which is situated at and known as ..........)".

Charges of land comprised in applications for sub-division

8.8 It is not uncommon for registered owners, particularly farmers, to apply for sub-division of a folio so that a charge which is to be registered against a dwelling house will not affect the rest of the land. The heading of the charge deed should state the folio number followed by the word "PART", and the description of the charged property should state - 'That part of the land in the above folio which is shown coloured on the map attached to an application for sub-division dated .......... (and which is situated at and known as ..........)".

8.9 In transactions of this type lending institutions often insist that the land being charged should enjoy easements over the remaining land in the parent folio. However, this may create a problem because a person cannot grant himself an easement over his own property. The usual method of overcoming this difficulty is to transfer the land in one of the folios into the joint names of the registered owner and his wife. An alternative approach is to grant the lending institution a power to create easements over the land in the parent folio, in the event of it exercising its power of sale.

Inhibitions in Charge Deeds

8.10 Where a charge deed incorporates an inhibition, as in the above precedent, a request for registration of the inhibition should be made in panel 3 of LR printed form 100. Unless such a request is made, and the appropriate fee is paid, the inhibition will not be registered.

Orders Charging Land

8.11 An application to register an Order Charging Land, where the debtor is a registered owner of land, may be made by lodging an official copy of the charging order, certified by the Enforcement of Judgements Office, together with LR printed form 100 and the registration fee. It is no longer necessary to lodge the Land Certificate or to apply for an order for its production. If the debtor is a company, three official certified copies of the charging order are required. (See Rule 88(1) and Article 50 of the Judgments Enforcement (NI) Order 1981).

8.12 Where an Order Charging Land is made against a debtor who is entitled to an estate in land but is not a registered owner, an application may be made for registration of a Notice of Order Charging Land pursuant to Article 48 of the Judgments Enforcement (NI) Order 1981. The application, in LR form 38 (Precedent 65), should be accompanied by:

  • (i) an official copy of the charging order, certified by the Enforcement of Judgements Office
  • (ii) where the debtor is a company, two copies of the form 38 application certified by the applicant or his solicitor
  • (iii) LR printed form 100 and the registration fee. (See Rule 88 (2))

8.13 Where the debtor is a lessee under a lease created out of registered land after I October 1992, and the relevant leasehold folio has not yet been opened, a Notice of an Order Charging Land may be registered against the parent folio in accordance with Rule 88(3). The formalities are similar to those stated in paragraph 8.12, except that the application should be made in LR form 39 (Precedent 66).

Matrimonial Charges

8.14 An application to register a Matrimonial Charge, arising under the Family Law (Miscellaneous Provisions) (NI) Order 1984, may be made in accordance with Rule 92, by lodging:

  • an application completed by the applicant (Precedent 67)
  • an official copy of the applicant's marriage certificate
  • LR printed form 100 and the registration fee. Production of the Land Certificate is not required

You can get more information by following the link below:

Notices of Deposit of Land Certificate

8.15 A person with whom a Land Certificate has been deposited as security may seek to protect his equitable interest by applying for registration of a notice of the deposit under Rule 137. The documents to be lodged are:

  • the Land Certificate
  • an application in LR form 73 (Precedent 68)
  • LR printed form 100 and the registration fee

8.16 If a depositary subsequently wishes to sell land as a mortgagee in possession, he must first obtain, and lodge in the Registry, a court order declaring the land well charged and ordering the land to be sold. (See also para. 7.6 ante).

8.17 Where a transaction relates to part of land affected by a notice of deposit and the depositary consents to the transaction, evidence of his consent should be produced. Such consent may be embodied in the document which effects the transaction or in a separate document (see Precedent 69).

8.18 A notice of deposit may be cancelled on foot of an application in LR form 75 (Precedent 70) which should be accompanied by the Land Certificate, LR printed form 100 and the appropriate fee.

Postponement of charge

8.19 Where a registered charge is to be postponed in favour of a subsequent charge, a Deed of Postponement (Precedent 71) should be executed by the owner of the existing charge, and this should be lodged in the Registry together with:

  • the relevant Land Certificate
  • the Certificate of Charge relating to the charge being postponed
  • the new charge (normally in duplicate)
  • LR printed form 100 and the registration fee

You can get more information by following the link below:

Sub-Charges

8.20 The owner of a charge may raise money on the security of that charge by creating a sub-charge (see Rule 69 and Precedent 72). The documents to be lodged in the Registry on the registration of a sub-charge are:

  • the Deed of Sub-Charge (normally in duplicate)
  • the Certificate of Charge relating to the "parent" charge
  • LR printed form 100 and the appropriate fee. Production of the Land Certificate is desirable, but not essential

You can get more information by following the link below:

Charges by way of Substituted Security

8.21 The purpose of a charge by way of substituted security is to release property from a charge and, at the same time, replace it with other property. Deeds of Substituted Security are most commonly encountered in leasehold merger situations, where it is agreed that a charge affecting the leasehold estate should be "carried up" and registered against the reversionary estate. The documents to be lodged are:

  • the Deed of Substituted Security (Precedent 73) prepared in duplicate and executed by all parties
  • the existing Certificate of Charge
  • the Land Certificates for both properties
  • any other relevant documents (eg transfer, applications for merger etc)
  • LR printed form 100 and the appropriate fee

You can get more information by following the link below:

Transfer of Ownership of a Charge

8.22 The owner of a charge may transfer his interest in that charge in accordance with Rule 67, by deed in LR form 32 (Precedent 74). The documents to be lodged are:

  • the transfer
  • the Certificate of Charge
  • LR printed form 100 and the registration fee. If the Land Certificate is available, it should also be lodged, although this is not mandatory

You can get more information by following the link below:

Cancellation of Charges

8.23 There are a number of methods by which a registered charge may be cancelled:

  • by a vacate endorsed on the charge deed
  • by a receipt executed by the charge owner in accordance with Rule 72 (Precedent 75)
  • by a release executed by the charge owner in accordance with Rule 73 (Precedent 76). Such a release may relate to all or part of the land which is subject to the charge
  • by a court order
  • on a sale of the land by the charge owner, or the owner of a prior charge, as mortgagee in possession
  • by the production of evidence which satisfies the Registrar that the charge should be cancelled (see paragraph 8.24)
  • an Order Charging Land may be cancelled by any of the foregoing methods or - (a) by a Certificate of Satisfaction issued by the Enforcement of Judgements Office or (b) on a simple request made after the expiration of twelve years from the date of the judgement

8.24 By virtue of Rule 74 the Registrar has power to authorise the modification or cancellation of a charge where he is satisfied that it is appropriate to do so. The evidence necessary to satisfy the Registrar will depend very much on the facts of each individual case, but most applications made under this Rule relate to charges which have become statute barred. An application for cancellation of a statute barred charge may be made by lodging:

  • a certificate by a solicitor setting out all relevant facts (precedent 77)
  • the Land Certificate
  • the Certificate of Charge (if any) or an application to dispense with its production (see paragraph 8.2 ante)
  • LR printed form 100 and the appropriate fee

You can get more information by following the link below:

Variation of the terms of a registered charge

8.25 An application for the entry of a note that the provisions of a charge deed have been varied may be made by lodging:

  • a deed of variation in duplicate
  • the original certificate of charge
  • the Land Certificate
  • LR printed form 100 and the registration fee

8.26 No precedent is suggested for such a deed because lending institutions normally specify their own individual requirements. However, the deed should contain a Land Registry heading, identify the registered owner and the charge owner, and refer to the date of registration of the charge.

8.27 Where the variation would have a prejudicial effect on the rights of the owner of a subsequent charge, a consent executed by such subsequent charge owner should be produced.