The Supreme Court’s Justice Dunne has agreed with the Chief Justice that an equitable mortgage created by depositing a land certificate could no longer be enforced after the relevant provisions of the Registration of Deeds and Title Act 2006 took effect.
In a judgment delivered on 4 June 2019 in an appeal between Promontoria (Oyster) Designated Activity Company and Gerard Hannon, Justice Dunne set out the history of using land certificates to create security over registered land. She said the 1891 and 1964 legislation gave a certificate deposit the same effect as depositing title deeds to unregistered land, creating an equitable interest without a Land Registry entry.
The certificates also served a practical purpose: they generally had to be produced to complete later registrations affecting the land. A creditor holding the certificate could therefore prevent subsequent dealings that might affect its security, Justice Dunne explained.
Section 73 of the 2006 Act stopped the issue of land and charge certificates and provided that existing certificates would cease to have force after a three-year period. Certificate holders could preserve existing equitable mortgages by registering a lien during that period. Justice Dunne concluded that, once section 105 of the 1964 Act ceased to have effect, a mortgage based on an equitable deposit of a land certificate could no longer be enforced in that way.
She agreed with the Chief Justice’s judgment and proposed order. Her judgment does not say that equitable mortgages over unregistered land, created by depositing title deeds, were abolished. It also expressly says the statutory change did not affect other methods of creating an equitable mortgage.
The judgment excerpt identifies the parties and appeal number but does not set out the Chief Justice’s full reasoning or the terms of the order proposed.