Death and the unregistered Deed of Transfer

The recent High Court decision in the case of Roohan –v- Eunan Gallagher dealt with the interesting question as to what was the consequence of the non-registration of a Deed of Transfer before the death of the person who had transferred lands under that deed.

In this case, Peter Roohan executed a voluntary transfer of lands at Clyhore in County Donegal to his son Seán Roohan on 1 January 2002 in consideration of natural love and affection.  Peter Roohan died over a decade later on 24 September 2012.  The evidence was that Seán Roohan had been in possession and occupation of the lands but the Deed of Transfer to him had not been registered by the time of his father’s death.  Seán Roohan himself died on 30 March 2016 and even at that point, the Deed of Transfer had not been registered.  It appears that the Transfer was registered in the Land Registry in July 2017.

The High Court was asked by way of special summons as to whether a Deed of Transfer dated 1 January 2002 to Seán Roohan failed and was of no legal effect as it was not registered with the Registrar of Titles prior to the death of Peter Roohan on 24 September 2012 as required by Section 51(2) of the Registration of Title Act, 1964.

The plaintiffs’ case was described as being “admirably straightforward”.  The plaintiff’s case was that until registration of a Deed of Transfer of registered land, title remains in the transferor.  Consequently, because the 2002 Transfer was not registered at the time of Peter Roohan’s death it was ineffective and failed to transfer his interest in those lands to Seán Roohan.  The plaintiff argued that title to the lands remained vested in Peter Roohan and thus the lands formed part of his estate at the time of his death.  The plaintiff also cast doubt on the legality of the subsequent registration of Seán Roohan’s title after the death of both transferor and transferee.

The High Court disagreed with these arguments. It held that as registered owner, Peter Roohan could and did transfer an equitable interest in the entire of the property to his son through the Deed of Transfer executed in 2002.  The High Court held that at the date of his death, Peter Roohan held only the legal title to the Clyhore lands and did not hold the equitable interest in those lands which at that time was vested in his son Seán.  Consequently, the High Court found that Peter Roohan’s estate included only the legal title to those lands and no equitable or beneficial interest in them.

The High Court did specify that it had some reservations as to the manner in which Seán Roohan’s title was registered after his death, but did not think it entirely clear cut that the registration was invalid pursuant to Section 61 of the Registration of Titles Act, 1964 or otherwise.  The High Court stated that this particular issue was not properly before the court and it did not comment on it further.

In any event, it goes without saying that steps to register a Deed of Transfer in the Land Registry should be taken immediately after the execution of that Deed of Transfer and issues such as those set out above are entirely avoidable doing so.

For further information on this topic, contact Brendan Sharkey at bsharkey@reddycharlton.ie