Undertakings in the context of the abolition of land certificates

Conveyancing 28/08/2009

Practitioners will be aware of the provisions of the Registration of Deeds and Title Act 2006 regarding the abolition of land certificates. As and from 1 January 2007, the Property Registration Authority (the PRA) ceased to issue, or reissue, land certificates or certificates of charge.

Until 31 December 2009, production of an existing land certificate to the PRA is still required for the registration of a dealing with the property to which it relates. On completion of the application, the certificate is cancelled and does not reissue. From 1 January 2010, all remaining land certificates and certificates of charge not already cancelled shall cease to have any force or effect. Practitioners should be mindful of the circumstances in which undertakings can be given in light of these rules.

The recommendations concerning undertakings have been well set out by the Law Society over the years in various practice notes and include that, in order to give an undertaking, a solicitor must:
• Have irrevocable written authority from his/her client, and
• Be personally capable of performing the undertaking.

The impending abolition of land certificates limits the circumstances in which a solicitor will be in a position to give an undertaking in relation to registered land. For example, if a land certificate is lodged in connection with a sale or otherwise, it will not be reissued by the PRA, and an undertaking to hold it in trust or to relodge it with a bank following completion of a related transaction cannot be honoured. Even where a solicitor has possession of a land certificate, it will cease to have effect from 1 January 2010. Solicitors should examine the circumstances of each case to see if they are in a position to give any undertaking in respect of land certificates.

Practitioners are reminded that the period within which liens under section 73 of the Registration of Title Act 2006 may be registered expires on 31 December 2009.

This practice note is being issued at a time of change, as land certificates are still in existence. The committee will continue to monitor the situation and issue any further recommendations as it deems necessary.