The High Court allowed Anglo Irish Bank Corporation Limited’s appeal over a charge on Folio 17018L in County Cork, finding that the charge could be registered after the borrower acquired the land. The court did not determine the costs, and directed that it receive further submissions on that issue.
The appeal concerned land at Lapps Quay, Cork, acquired by Kilquane Limited under a lease from Cork City Council dated 12 April 2005. The bank had executed a mortgage and charge with the company on 16 December 2004, when the company did not own or hold an interest in the land. The mortgage included a clause covering property the company might later acquire.
In October 2010, the Property Registration Authority refused the bank’s application to register a charge on the folio. It said the company was neither the registered owner nor entitled to be registered as owner when it signed the mortgage, and that the statutory requirements had not been met.
The bank argued that the mortgage created a fixed charge that took effect when the company acquired the land. The Authority submitted that a charge over future, unidentified property was equitable rather than legal, and could not be entered on the Land Register without a further assurance. It also argued that the mortgage’s provision for further documents showed that the security was incomplete.
Justice Henry Abbott distinguished the contractual security created by the mortgage from registration of a charge against the folio. He held that the relevant time for assessing whether the company was registered owner was when the bank presented the documentation for registration, after the company had acquired the land and become its registered owner. On that basis, the Authority’s objection that the company did not own the land when the mortgage was executed failed.
The judge also concluded that the mortgage could satisfy the prescribed-form requirement when read with the registration rules and the material provided with the application. He accepted that the company’s failure to execute a separate charge was explained by bona fide commercial circumstances. He rejected the argument that acquisition of the land fed an estoppel by deed, and said the result rested on the registration process and the documents submitted.
The court allowed the appeal. It noted that registration would place the charge on the folio and affect its position among competing claims, but did not treat the original contract itself as an interest in land. The judgment said an application of this kind may require further information so the registrar can assess whether bypassing a separate executed charge is bona fide and justified. The judge also said the court would await submissions on costs.