S.I. No. 230/1964 - Land Purchase Acts Rules, 1964.

S.I. No. 230 of 1964.

LAND PURCHASE ACTS RULES, 1964.

IRISH LAND COMMISSION.

LAND PURCHASE ACTS.

RULES AND ORDERS UNDER THE LAND ACT, 1933 .

THE 23rd DAY OF SEPTEMBER, 1964.

It is this day ordered by the Minister for Lands, in pursuance of the powers conferred on him by Section 3 of the Land Act, 1933 , and of every other power him enabling in this behalf with the concurrence of a majority of the Committee constituted pursuant to the provisions of the said Section and after consultation with the President of the Incorporated Law Society of Ireland, that the following Rules shall from and after this date (except where otherwise stated) and until further order take effect and be in force in relation to proceedings under the Land Purchase Acts and that all existing Rules and Orders made under the same Acts, in so far as they are inconsistent with these Rules but no further, are hereby amended or revoked.

MICHEÁL Ó MÓRÁIN,

Minister for Lands.

We hereby concur in the making of the following Rules.

Members of the Committee : THOMAS TEEVAN,

T. O'BRIEN,

JOHN KELLY.

ORDER I.

Title

1. These Rules and Orders may be cited as the Land Purchase Acts Rules of 1964.

Interpretation

2. —(1) The Interpretation Act, 1937 (No. 38 of 1937) applies to the interpretation of these Rules and Orders in like manner as it applies to the interpretation of an Act of the Oireachtas.

(2) In these Rules "The Rules of 1924" means the Provisional Rules under the Land Purchase Acts dated the 5th day of February, 1924, as amended by any subsequent rules.

Saving of existing Rules.

3.All Rules heretofore made under the Land Purchase Acts shall continue in force save insofar as they are revoked by or are inconsistent with these Rules.

ORDER II.

Amendment of existing Rules.

1. The Rules of 1924 are hereby amended as provided in the First Schedule to this Instrument.

2. The foregoing Rule shall apply to all matters and proceedings notwithstanding that steps have been taken therein under the Rules of 1924. Where any steps have been so taken in any matter or proceedings the Examiner may direct what further proceedings are necessary under these Rules and Orders.

ORDER III.

The remuneration of a Solicitor in respect of all business connected with the negotiation (if any) for sale, the deduction of title and the distribution by the Judicial Commissioner of purchase money or of the price of a resumed or partly resumed holding or of the redemption price of a superior or intervening interest, as the case may be, other than incumbrancer's costs of proof, shall be regulated as follows, namely :

1. (a) Where the purchase money arises out of an agreement under Section 36 of the Land Act, 1923 , the remuneration of the Solicitor for the Owner for all work done by him from the commencement of proceedings up to and including the vouching of the Allocation Schedule shall be a lump sum calculated in accordance with the appropriate part of the Second Schedule to this Instrument ;

(b) Where the purchase money arises out of an agreement to which paragraph (a) of this Rule does not apply, the remuneration of the Solicitor for the Owner for all work done by him in connection with the agreement, the deduction of title and thereafter up to and including the vouching of the Allocation Schedule shall be a lump sum calculated in accordance with the appropriate part of the said Second Schedule ;

(c) Where the Purchase Money does not arise out of an agreement or where the fund in Court for distribution represents a resumption price or the redemption price of a superior or intervening interest :—

(i) The remuneration of the Solicitor for the Owner, tenant, or person entitled to the superior or intervening interest, as the case may be, for all work done by such Solicitor from and including the preparation of the Affidavit of Title prescribed by this Instrument, and all work incidental to the preparation of such Affidavit up to and including the vouching of the Allocation Schedule,

(ii) The remuneration of the Solicitor for the Owner for all work done by such Solicitor under the Rules of 1924 from and including the preparation of the Statement of Ownership and Abstract of Title and all work incidental to the preparation of such Statement of Ownership and Abstract of Title and all further work (if any) done by such Solicitor under this Instrument up to and including the vouching of the Allocation Schedule,

(iii) The remuneration of the Solicitor for the tenant or person entitled to the superior or intervening interest for all work done by such Solicitor under the Rules of 1924 from and including the preparation of the Affidavit showing the title and all work incidental to the preparation of such Affidavit and all further work (if any) done by such Solicitor under this Instrument up to and including the vouching of the Allocation Schedule,

shall be a sum calculated in accordance with the appropriate part of the Third Schedule to this Instrument.

2. For the purposes of the Second and Third Schedules to this Instrument, where the purchase money or other fund for distribution includes a fraction of £100 such fraction if under £50 shall be reckoned as £50 and if over £50 shall be reckoned as £100.

3. Where the remuneration prescribed by Part I or by Scale A of Part 2 in the Second or Third Schedule to this Instrument would, but for this provision, amount to less than £10 the prescribed remuneration shall be £10, except on purchase moneys or other funds under £100, in which case the remuneration shall be £6.

4. Where the remuneration prescribed by Scale B of Part 2 in the said Second or Third Schedule would, but for this provision, amount to less than £5 the prescribed remuneration shall be £5, except on purchase moneys or other funds under £100, in which case the remuneration shall be £3.

Items excluded from remuneration.

5. The remuneration prescribed by the said Second and Third Schedules includes the costs of proceedings before the Examiner, law stationer's charges and allowances for time of the Solicitor and his clerks and for copying and all similar disbursements but it does notinclude stamps, Counsel's fees, travelling or hotel expenses, costs of extracts from any register, record or roll or other disbursement reasonably and properly paid, or costs or fees for any extra work occasioned by changes occurring in the course of any business, such as the death or insolvency of any party to the transaction, or for any business of a contentious character, or for any proceedings in any Court.

Liberty to elect.

6. In any case to which a scale prescribed in the said Second or Third Schedule would apply a Solicitor may, before undertaking any business, by writing under his hand communicated to the client, elect that his remuneration shall be according to the Schedule of fees in the Appendix to the Rules of 1924 ; but if no such election shall be made his remuneration shall be according to the said scale.

7. In respect of any business which is required to be and is by special exertion carried through in an exceptionally short space of time a Solicitor may be allowed a proper additional remuneration for the special exertion according to the circumstances on application to the Judicial Commissioner.

Costs of Sale, etc.

8. The Vendor's Costs of Sale and the costs of making title to superior and intervening interests Within the meaning and for the purposes of Section 4 of the Land Bond Act, 1925 , shall include the remuneration prescribed by this Order.

Taxation of Costs.

9. The taxation of costs under Order XLVII of the Rules of 1924 shall be regulated by this Order so far as the same applies.

Measurement of Costs.

10. The Examiner of Title to whom a proceeding is for the time being referred may measure all costs to which this Order applies, (other than costs awarded under a resumption order), on the written consent to such measurement of the person entitled to the funds out of which same are to be paid whether as absolute owner, trustee or otherwise. For this purpose, the Examiner shall be entitled to call for the production of a memorandum of such costs signed by the claimant and such consents and particulars regarding outlay or otherwise as he considers necessary, and such costs need not be taxed for the purpose of payment out of the Costs Fund.

Commencement.

11. This Order shall come into operation of the 1st day on October, 1964, and shall apply to all proceedings except those in respect of which costs have been taxed or measured before that date.

EXPLANATORY NOTE.

These Rules amend the Provisional Rules under the Land Purchase Acts, dated 5th February, 1924, with the object of simplifying the existing procedure for obtaining allocation of purchase monies and other funds to credit in the Land Commission. The Rules also prescribe revised scales for legal costs in such cases.

FIRST SCHEDULE.

ARTICLE 1.

Order IX of the Rules of 1924 is revoked and the following Order is substituted therefor :

IX. THE AFFIDAVIT OF TITLE.

I. General.

Construction of Terms.

1. The term " Owner " in this Order as regards land which will become or has become vested in the Land Commission on the appointed day by virtue of the Land Act, 1923 , as amended by subsequent enactments shall mean the person who prior to the appointed day was the owner of the lowest interest in such land constituting an interest saleable under the Land Purchase Acts and as regards land which will become or has become vested in the Land Commission pursuant to Section 36 of the Land Act, 1923 , shall mean the person or persons who, having such interest, contracts or contract to sell such land.

Lodgment of the Affidavit of Title.

2. Subject to the provisions of Rule 3, and within the time prescribed by Rule 4 of this Order, an Affidavit, hereinafter referred to as " The Affidavit of Title", together with a plain copy thereof shall be lodged either by hand or post in the Examiners' Branch of the Land Commission by, or by the Solicitor for,

(a) the owner of any land which will become or has become vested in the Land Commission on the Appointed Day ;

(b) the owner of any land which will become or has become vested in the Land Commission by Vesting Order made pursuant to a purchase of untenanted land by the Land Commission under Section 36 of the Land Act, 1923 ;

(c) the tenant of a holding which has been wholly or partly resumed ;

(d) the person claiming to be entitled to a superior or intervening interest in any land or holding.

Distribution of small amounts of Purchase Money or Resumption Price.

3. Where the total amount of the purchase money of an Estate, the resumption price of a holding or the redemption price of a superior or intervening interest does not exceed £300 (three hundred pounds) the direction of an Examiner should be obtained before the Affidavit of Title is prepared. Failure to observe this rule may result in loss of costs.

Time within which the Affidavit of Title must be lodged.

4. The time within which the Affidavit of Title shall be lodged shall be :—

(1) In the case referred to at paragraph (a) of Rule 2 of this Order, two months from the date of publication in Iris Oifigiúil of the Final List or List of Vested Holdings as the case may be or from the date of a notice from the Land Commission requiring the Owner to file the Affidavit whichever shall be the earlier date.

(2) In the case referred to at paragraph (b) of Rule 2 of this Order, two months from the date of the acceptance of the Proposal to Purchase unless otherwise provided therein.

(3) In the case referred to at paragraph (c) of Rule 2 of this Order, two months from the date of a notice from the Land Commission requiring the tenant to lodge the Affidavit of Title.

(4) In the cases referred to at paragraph (d) of Rule 2 of this Order, two months from the date of fixation of the redemption price or from the date of a notice from the Land Commission requiring the lodgment of the Affidavit of Title, whichever shall be the earlier date.

(5) In any case in which the date hereinbefore in this Rule referred to is more than two months before the date of this Order the period of two months referred to shall commence on the date of this Order.

Affidavit of Title. By whom to be made. Contents of

5. The Affidavit of Title shall, subject to the provisions of Rule 6 of this Order, be made by the owner of the land or the tenant of the holding or the person claiming to be entitled to the superior or intervening interest, as the case may be, and it shall, subject to such directions as may from time to time be given by theJudicial Commissioner, state :

(a) the description of the land or holding, including acreage, Ordnance Survey name of Townland (with any alternative names appearing in the documents of title), Barony and County ;

(b) that the deponent is or was the owner of the land or the tenant of the holding or a person claiming to be entitled to a superior or intervening interest in such land or holding as the case may be;

(c) the tenure of such land, holding or superior or intervening interest;

(d) in respect of the estate of the deponent in such land, holding or superior or intervening interest :

(i) the nature of his interest, whether as absolute owner, tenant for life, trustee for sale or otherwise;

(ii) where the deponent is a trustee for sale, particulars of the person or persons beneficially entitled in possession or entitled to the surplus proceeds of sale;

(iii) the date from which the deponent or other person has been or was in possession;

(iv) the names and addresses of the trustees, if any, for the purposes of the Settled Land Acts, 1882 to 1890;

(v) the superior interests, if any;

(vi) the charges and incumbrances, if any, affecting the estate of the deponent;

(vii) all, if any, proceedings in any Court which affect the estate of the deponent;

(viii) particulars of the persons, if any, having an interest in the estate of the deponent who are infants, wards of Court or are otherwise under disability;

(ix) that there is no superior interest or charge or incumbrance or proceeding in any Court affecting the estate of the deponent which has not been disclosed in the affidavit;

(x) that there is no person having any interest in the estate of the deponent who is an infant, ward of Court or is otherwise under disability and whose existence has not been disclosed in the affidavit;

(xi) the title to the estate of the deponent, giving the effect only of the several documents and instruments instead of an abstract of their contents where such course is compatible with clearness.

Affidavit of Title by Solicitor.

6. If the person required by Rule 5 of this Order to make the Affidavit of Title is at the time when the same is required to be made under disability, or if for sufficient cause the Judicial Commissioner so permits, the Affidavit of Title may be made on behalf of such person by a Solicitor who shall state therein the reason why the Affidavit is not made by such person, and the provisions of Rule 5 of this Order shall apply to such Affidavit, mutatis mutandis.

Affidavit of Title. Endorsement of

7. The Affidavit of Title shall be endorsed with the name and registered place of business of the deponent's Solicitor, or, if the deponent shall have no Solicitor, with an address within the State where notices, orders and other documents may be left for the deponent, and no Affidavit of Title shall be received in the Examiners' Branch of the Land Commission without such endorsement.

II. The Affidavit of Title of the Owner.

Filing of, to entitle Owner to carriage of proceedings.

8. The Affidavit of Title of the Owner described in Rule 2 of this Order together with the copy thereof shall forthwith on being lodged be transmitted to the Registrar's Branch of the Land Commission, where the Affidavit shall be filed.

The officer in the Registrar's Branch receiving the Affidavit of Title of such Owner shall endorse thereon the date of filing thereof, and a note of such filing and the date thereof shall be entered in the Record of Proceedings, and the filing of such Affidavit of Title in that Branch shall entitle such Owner to the carriage of proceedings in relation to the distribution of the purchase money of the land described therein of which he is Owner unless and until the Judicial Commissioner shall otherwise direct. The copy Affidavit of Title of the Owner shall be duly attested and returned to the Examiners' Branch.

Should Owner neglect to lodge, any claimant may apply for carriage of proceedings.

9. If the Owner described in paragraph (a) of Rule 2 of this Order shall fail to lodge an Affidavit of Title within the period prescribed by Rule 4 of this Order or such extended period as may be allowed by the Judicial Commissioner, any person having a claim against the purchase money of the land shall be at liberty to apply to the Judicial Commissioner for the carriage of the proceedings in relation to the distribution of such purchase money. If pursuant to such application the Judicial Commissioner shall give the carriage of the proceedings in relation to the distribution of the purchase money to a person not being the Owner then any duty imposed by any Rule or Order on the Owner or his Solicitor shall be performed by the person having the carriage of the proceedings or his Solicitor unless from its nature it should only be discharged by the Owner or his Solicitor.

Lodgment of claim.

10. Any person having a claim against land comprised in the Affidavit of Title of the Owner which would attach to the purchase money of such land and which is not disclosed or is improperly described in such Affidavit, may lodge particulars in writing of such claim in the Examiners' Office. The claim shall be verified by the Affidavit of the claimant, or in a proper case by that of his Solicitor, and shall be endorsed with the name and registered place of business of the claimant's Solicitor, or, if the claimant is not represented by a Solicitor, with an address for service within the State where notices, orders and other documents in reference to the claim may be left for the claimant. The claim shall be receipted by an Examiner who, if he considers it to be frivolous or unnecessary or improperly drawn, may refuse to receive the same without the Order of the Judicial Commissioner, and he shall endorse thereon his reason for refusal. A claim shall not be lodged where the claimant's right is contingent or is one which would be sufficiently protected by the entry of an appearance.

Examiner to consider claims lodged; costs of same.

11. The Examiner shall note on the attested copy Affidavit of Title of the Owner the lodgment of every claim received in accordance with Rule 10 of this Order by him, and when ruling the title to the Estate he shall consider any claim that shall have been so received ; but he may at any time direct a particular claim to be entered before the Judicial Commissioner for ruling. Unless the Judicial Commissioner otherwise directs, a claimant shall be entitled with his demand to the costs of any claim the lodgment of which the Examiner shall consider to have been necessary and reasonable, but no costs shall be allowed in respect of any claim the occasion for the lodgment of which arose by reason of the failure of the claimant to comply with the provisions of Order X of the Rules of 1924 as amended by Article 2 of this Schedule.

III. The affidavit of Title of the Tenant of a Holding which has been wholly or partially resumed.

Lodgment to entitle tenant to carriage of proceedings.

12. Rules 8, 9, 10 and 11 of this Order shall apply to the Affidavit of Title of a tenant of a holding which has been wholly or partly resumed, to the carriage of proceedings thereon and to the lodgment, consideration and costs of claims as if in said Rules the word " tenant " were substituted for the word " owner " and for the words " owner described in paragraph (a) of Rule 2 of this Order " and as if the words " resumption price " and " holding " were substituted for the words " purchase money " and " land " respectively where the same occur.

IV. The Affidavit of Title of the Person claiming to be entitled to a Superior or Intervening Interest.

13. The Affidavit of Title of a person claiming to be entitled to a superior or intervening interest shall, with the copy thereof, forthwith on being lodged be transmitted to the Registrar's Branch of the Land Commission, where the Affidavit shall be filed. The officer in the Registrar's Branch receiving such Affidavit shall endorse thereon the date of such filing, and a note of such filing and the date thereof shall be entered in the Record of Proceedings, and the copy Affidavit shall be duly attested and returned to the Examiners' Branch.

ARTICLE 2.

Order X of the Rules of 1924 is revoked and the following Order is substituted therefor :

X. ASCERTAINMENT OF SUPERIOR INTERESTS AND PERSONS ENTITLED TO CHARGES.

Duties of persons entitled to superior interests and incumbrances.

1. In the case of all sales or resumption proceedings under the Land Purchase Acts, all persons in receipt of or entitled to any rent, rentcharge,fees, duties, services or royalties issuing out of or to be rendered in respect of land comprised in the estate or the holding comprised in the resumption proceedings, or to the interest on any charge or incumbrance affecting such land or holding, shall be bound to furnish to the Owner of such land or the tenant of such holding, as the case may be, or his Solicitor, when so required by such Owner, tenant or Solicitor, such information or evidence (including the particulars of any superior rent payable) as may be necessary for the preparation of the Affidavit of Title or Allocation Schedule. Any person unduly or unreasonably withholding such information shall not be allowed the costs of obtaining payment of his demand, if any, except by order of the Judicial Commissioner.

ARTICLE 3.

Order XI of the Rules of 1924 is revoked and the following Order is substituted therefor :

XI. REQUISITIONS TO QUIT RENT OFFICE, COMMISSIONERS OF PUBLIC WORKS, AND AS TO TITHE RENTCHARGE.

Requisitions of be transmitted by Land Commission.

1. Requisitions to the Superintendent of the Quit Rent Office, the Commissioners of Public Works and as to Tithe Rentcharge in Forms 11, 12 and 13 respectively, shall be prepared and transmitted by the Land Commission when the Affidavit of Title of the Owner or Tenant has been filed. Where the Affidavit of Title deals with the title to a resumption price, requisitions to the Superintendent of the Quit Rent Office and as to Tithe Rentcharge shall not be required save as directed by the Examiner.

Owner, tenant or his Solicitor to furnish documents and evidence.

2. It shall be the duty of the Owner or of the tenant of a resumed holding, as the case may be, or his Solicitor, to furnish to the said Superintendent and Commissioners respectively such documents and other evidence as may be necessary to enable him or them to comply with the requisitions.

ARTICLE 4.

Order XV of the Rules of 1924 is amended by the substitution of the following Rule for Rule 8 :

Distribution of Resumption Price.

8. When the Land Commission exercises its powers of resumption of a retained holding, or part thereof, the Judicial Commissioner, unless he is satisfied that the tenant can give a valid receipt for the resumption price payable, may order the Land Bonds representing such resumption price to be retained in Court to abide his further order. The distribution of the resumption price shall be in accordance with the provisions of Order XX (save Rule 5 thereof) in respect of the distribution of purchase money.

ARTICLE 5.

Order XVII of the Rules of 1924 is amended by the substitution of the following Rule for Rule 4 :

Proof of title to fishing rights.

4. If the fishing rights and fisheries or sporting rights are the property of the Owner of the land to which they are appurtenant, they shall be included in the Affidavit of Title to be lodged by him ; if they are in the nature of a superior interest, title shall be proved to the purchase money thereof in accordance with the Rules and Directions dealing with superior interests.

ARTICLE 6.

Order XVIII of the Rules of 1924 is revoked and the following Order is substituted therefor :

XVIII. LODGMENT OF DEEDS—OTHERWISE THAN AS PROVIDED IN ORDER XIX.

Method of lodgment.

1. Save as provided in Order XIX, deeds, muniments of title and other documents to be lodged in Court shall, unless otherwise directed, be lodged by hand or by post in the Records Branch of the Land Commission, and the person lodging the same shall bring in or send therewith two schedules of such documents, one of which shall be returned to him receipted by the Keeper of Records. If the documents are lodged in pursuance of a notice or order, a copy of such notice or order shall be produced or sent with the lodgment.

Person having custody must produce or lodge on being served with notice.

2. Any person having the custody of any deed or document relating to land the subject matter of proceedings under the Land Purchase Acts shall, subject as is hereinafter provided, produce or lodge the same in Court upon being served with notice to do so by the Solicitor for the Owner or the tenant of the resumed holding or other the person having carriage of the proceedings, as the case may be, and he shall be entitled to the costs of producing or lodging same, to be paid by the Owner or out of the purchase money of the Owner's estate or by the Land Commission in the case of a resumed holding, provided that—

(1) a mortgagee or a person entitled to a superior interest shall not be obliged to part with an instrument creating or dealing with his security or interest until the order for payment of his demand is made ; but he shall be bound in the meantime to furnish copies thereof, if required, on payment of the ordinary charges, and to produce the originals if required by order of the Court, or if the Examiner shall certify that such production is required for purposes of title, and he shall be allowed his costs of such production with his demand ;

(2) a person (not being the Owner or the tenant of a resumed holding or a person having a charge on the estate of such Owner or on such holding) having the custody of any instrument as or on behalf of a person entitled to land which is not the estate of the Owner or the holding of such tenant and of which land such instrument is a muniment of title shall not be bound to lodge such instrument unless by order of the Judicial Commissioner, but he shall produce the same to the Examiner for inspection by him at a time and place to be fixed by the Examiner for that purpose on being tendered reasonable costs and a certificate signed by the Examiner that such production is necessary ;

(3) a person claiming to have a lien on any deed or deeds (but not a person merely having the custody of title deeds as mortgagee under a deed of mortgage) shall not be required or bound to lodge such deed or deeds in respect of which he claims a lien save under order of the Court, but he shall, if required and on payment of the ordinary charges, furnish or lodge copies thereof and shall produce the originals if required so to do by order of the Court, or if the Examiner shall certify that such production is necessary for purposes of title.

A notice to lodge deeds shall be in Form 29 with such variations as the circumstances may require.

Application for order to lodge.

3. Should a person bound to lodge deeds or other documents fail to do so within the time limited by the notice, the Solicitor for the Owner or the tenant of the resumed holding, as the case may be, may apply ex parte for an order directing such person to lodge the same, such application to be grounded on the notice to lodge deeds, evidence that such person has the document or documents required in his custody, power or procurement, and that the document or documents are such as he should be bound to lodge, and a certificate from the Keeper of Records of non-lodgment.

Lien on Deeds.

4. Any Solicitor or other person who is ordered to lodge deeds or other documents in Court, shall, if he claims to have a lien on such documents, file an Affidavit stating the particulars of such lien and refer to such Affidavit in the schedule of documents lodged, otherwise the lien may be disallowed.

The Court may make such order as may be just as to the lien of any person lodging deeds, muniments of title or other documents, or as to payment of the costs of lodging the same.

Person failing to lodge on being served with notice may forfeit costs.

5. Any person who in contravention of the foregoing Rules of this Order shall fail without sufficient cause to produce or lodge in Court documents in his possession, power or procurement relating to land the subject matter of proceedings before the Land Commission or to furnish or lodge copies of such documents upon being served with notice to do so, may be made liable for the costs of any application to the Court that may become necessary by reason of his default, and he shall not be entitled to any costs of lodgment unless by order of the Judicial Commissioner.

Solicitor for Owner may inspect deeds and get delivery on returnable receipt.

6. During the pendency of any proceedings the Keeper of Records may deliver on returnable receipt to the Solicitor for the Owner or for the tenant of a resumed or partly resumed holding or other person having carriage of such proceedings, any deed, muniment of title or other document (except verified documents or Abstracts of Title or attested copies of Affidavits of Title which have been ruled or transmitted to the Examiners' Office for ruling) which has been lodged in the Records Branch in connection with such proceedings provided that:—

(a) the document shall be required for the purpose of such proceedings and not otherwise, and the Solicitor shall so certify in the receipt;

(b) the time limit for return shall not exceed 28 days;

(c) in the case of an Abstract of Title, on relodgment the Solicitor must certify that it is in the same condition as when he received it, unless it had been taken out for the purpose of amendment, in which case he shall certify it in the form prescribed by the Directions as to the preparation of Abstracts of Title;

(d) the Keeper of Records may in any case in which he deems it expedient require the order of an Examiner before delivery.

Delivery or inspection of.

7. An Examiner may order the delivery of documents lodged in the Records Branch on an undertaking to return the same being given, or finally, and the same shall be delivered accordingly; but the Examiner may, in his discretion, direct notice to be given of an application for such order. He may also give any person whom he may consider entitled to do so liberty to inspect any document so lodged.

8. The Keeper of Records shall not, save as in Rule 6 and Rule 7 of this Order provided, or save to an officer of the Land Commission, deliver any deed or document except by order of the Judicial Commissioner.

ARTICLE 7.

Order XIX of the Rules of 1924 is revoked and the following Order is substituted therefor:

XIX. TITLE DEEDS AND DRAFT ALLOCATION SCHEDULE LODGED WITH THE AFFIDAVIT OF TITLE IN THE EXAMINERS' BRANCH.

Lodgment of.

1. Together with the Affidavit of Title and plain copy thereof referred to in Order IX there shall be lodged either by hand or post in the Examiners' Branch of the Land Commission the original deeds and other muniments of title not theretofore lodged in Court. If the original of any document be not procurable a copy thereof or such evidence of its contents as can be obtained shall be lodged save in the case of an outstanding mortgage of which the Owner of the Estate or the tenant of a resumed holding, as the case may be, or his Solicitor has no copy and the original of which is available for inspection. The Owner, or the tenant of a resumed holding, or the person having carriage, as the case may be, or his Solicitor, shall also lodge for settlement by the Examiner a draft Allocation Schedule setting forth the claims affecting the purchase money or resumption price for the purpose of distribution. Three schedules of the documents lodged shall accompany the Affidavit of Title. The officer in the Examiners' Branch receiving the original or copy deeds and other documents of title shall transmit same to the Records Branch of the Land Commission.

Preparation and verification of.

2. The draft Allocation Schedule shall be prepared by, and verified by the certificate of, the solicitor for the person having carriage of the proceedings in accordance with such directions as may be issued by the Judicial Commissioner from time to time. Should the person having carriage of the proceedings not be represented by a solicitor the verification shall be by affidavit made by him instead of by certificate.

Registered Land.

3. If the title to the estate is registered under the Registration of Title Acts, 1891 and 1942, the Land Certificate, if issued, or an attested copy of the Folio shall be lodged with the Affidavit of Title.

ARTICLE 8.

Order XX of the Rules of 1924 is amended by the substitution for Rules 4, 6 and 7 thereof respectively of the following Rules 4, 6 and 7 and by the addition thereto of the following Rule 11A.

Claims may be vouched and paid before completion of Allocation Schedule.

With a view to the speedy discharge of claims affecting the purchase money the Examiner may settle and have engrossed a portion of the Allocation Schedule setting out any particular claim or claims, and he may, on notice to such person or persons, if any, as may appear to him to be entitled to notice by reason of having entered an appearance or otherwise, vouch any claim which he finds to affect the purchase money, and the payment of which could, in his opinion, safely be made before the ruling of the said schedule without prejudicing the claim or priority of any other person, and he may direct the case to be entered before the Judicial Commissioner for payment of the claim so vouched.

Claimants may apply ex parte to Examiner to vouch under Rule 4.

6. Any person having a claim against the purchase money of land sold under the Land Purchase Acts whether as owner of a superior interest or of a charge or incumbrance or otherwise, and who can prove his claim and show either that such claim is a first charge against the purchase money, or the particulars of all claims having priority to such claim, may apply ex parte to the Examiner to vouch such claim under Rule 4 of this Order, and the Examiner may give such directions as may appear to him necessary having regard to the state of the proceedings and the circumstances of the case, or he may postpone the application until the general vouching or an earlier date.

Allocation Schedule to be listed for ruling by the Judicial Commissioner.

7. The Allocation Schedule when settled, or when completed if portion thereof has already been settled under Rule 4 of this Order, shall be engrossed in the Examiners' Branch and shall be listed for ruling before the Judicial Commissioner.

Vouching Affidavit.

11A. Not less than three days before the day appointed for the vouching or ruling of the Schedule, whichever be the earlier date, the Owner or his Solicitor shall lodge either by hand or post in the Examiners' Branch a vouching affidavit in Form 138 in the Appendix to the Land Purchase Acts Rules, 1964, or such variation thereof as may be directed or permitted by the Examiner, together with a plain copy thereof which affidavit and copy shall be dealt with in the Examiners' Branch and in the Registrar's Branch in the same manner as the Affidavit of Title and copy, save that it need not be entered in the Record of Proceedings. The said Vouching Affidavit shall be sworn not more than 10 days before the said day appointed for the vouching unless otherwise permitted by the Examiner. The said Vouching Affidavit may be dispensed with in any case in which the Examiner is satisfied that such affidavit is unnecessary.

ARTICLE 9.

Order XXI of the Rules of 1924 is revoked and the following Order substituted therefor:

XXI. SUPERIOR INTERESTS.

I. Apportionment.

Apportionment of tithe rentcharge, etc. payable to the Land Commission.

1. An Application for the apportionment of tithe rentcharge payable to the Land Commission, and of fixed annual instalments payable in lieu thereof, shall be made in Forms 30 and 31 respectively, and shall be lodged in the Church Temporalities Branch of the Land Commission.

Apportionment of land improvement and drainage charges.

2. An Application for the apportionment of land improvement or drainage charges payable to the Commissioners of Public Works shall be made to such Commissioners, and the Examiner shall, if necessary, issue a requisition for that purpose. It shall be the duty of the Owner or his Solicitor to furnish such evidence and documents as may be required for the apportionment.

Applications for apportionment of other superior interests to be grounded on statement of facts.

3. An Application for the apportionment of impropriate tithe rentcharges, rents, fees, duties, services, rentcharges or annuities, shall, in the absence of consent, be made by motion in the like manner and on the like notices as provided by Rule 12 hereof for applications for redemption and shall be grounded on a statement of facts. Application should not be made for the apportionment of any superior interest which can be dealt with under Section 62 of the Irish Land Act, 1903.

Preparation and lodgment of statement of facts.

4. The statement of facts shall be verified by the Owner, or his Solicitor, or by such other person acquainted with the facts as the Judicial Commissioner may permit, and shall be clearly and accurately typewritten on foolscap paper with sufficient margin, and filed in the Registrar's Office. If the superior interest to be apportioned be contributed by the owners of the lands subject thereto in certain proportions, and if it is proposed to apportion in like manner, the particulars of the origin of such contribution, whether under a partition or otherwise, shall be set forth in the statement.

The statement shall be accompanied by and refer to an Ordnance map showing the entire lands out of which the superior interest to be apportioned is payable, and the portions between which it is proposed to apportion the same, unless the lands can be sufficiently identified without reference to a map. The statement shall also be accompanied by a certificate of valuation.

Statement of facts may be dispensed with.

5. An application for the apportionment of a superior interest grounded upon a consent may be entertained without lodgment of a statement of facts, and may be made ex parte, provided that the Examiner certifies on the consent that the same is in proper form, and that he is satisfied as to the identity of the lands out of which the superior interest issues, the persons liable for payment of the same and the proportions in which they contribute, that the owner of the superior interest has vouched his title thereto, and that the consent has been duly signed by all necessary parties. In any case in which the Examiner considers the evidence to be insufficient without lodgment of a statement of facts he shall refuse to give a certificate.

When application for apportionment should be made.

6. When the application for apportionment is grounded upon a consent certified by the Examiner it may be made at the ruling of the Allocation Schedule, and the Examiner may note the consent on such schedule. In other cases the order for apportionment shall be obtained before the settlement of the Allocation Schedule.

Draft of apportionment orders and counterparts.

7. The person at whose instance an order for apportionment has been made shall, if required, furnish a draft of such order and the same shall be settled by the Registrar. A sealed copy of the order shall, if applied for, be issued free of charge to the owner of the superior interest, and to the owner of any land upon which any portion of such superior interest not intended to be redeemed has been apportioned.

Memorandum of apportionment.

8. A memorandum of the apportionment shall be endorsed by the Registrar upon the instrument, if any, creating the superior interest if such instrument be forthcoming.

Forms of statements of facts.

9. Statements of facts for the apportionment of impropriate tithe rentcharges shall follow Form 32; for the apportionment of rents, fees, duties or services shall follow Form 33; and for the apportionment of rentcharges or annuities shall follow Form 34; with such variations and additions in each case as the circumstances may require.

Instrument creating rent, rentcharge or annuity to be lodged with statement.

10. When application is made for the apportionment of any rent, fees, duties or services, or of a rentcharge or annuity, a copy of the instrument creating the superior interest to be apportioned shall be lodged with the statement of facts, unless such instrument or a copy thereof be already lodged in Court.

II. Exclusive charge of or distribution without regard to superior interests.

11. An application to have purchase money distributed without regard to a superior interest or any part thereof, or for an exclusive charge in pursuance of Section 62 of the Irish Land Act, 1903, shall be made by motion to the Judicial Commissioner, and, unless grounded upon a consent, shall be on notice to the owner or person in receipt of such superior interest, and to the owner or owners of the lands out of which the same is paid or upon which it is proposed to exclusively charge the same : provided that the Judicial Commissioner may, if he thinks fit, dispense with service of notice upon any person. The application shall be made on the day on which the Allocation Schedule shall be listed for ruling before the Judicial Commissioner unless by direction of the Examiner or for some sufficient reason the application is made at an earlier date. A copy of the order, when made, shall on application be issued free of charge to the owners of the superior interest and of the lands out of which same is thereafter to be paid.

III. Redemption.

Application for redemption of superior interest, in absence of consent.

12. An application for an order for the redemption of a superior interest or any apportioned part thereof and to fix the redemption price thereof shall, in the absence of a consent, be made by motion to the Judicial Commissioner, and if made by the person entitled thereto shall be on notice to the Owner of the estate, and if made by such Owner shall be on notice to the reputed owner of such superior interest. Notice of such application shall also be given to such other persons as may have entered appearances requiring such notice or as would appear to be affected by such redemption.

Application for redemption of superior interest, with consent.

13. An application for an order for the redemption of a superior interest or any apportioned part and to fix the redemption price thereof, grounded upon a consent, may be made ex parte at the Ruling of the Allocation Schedule and the Examiner may note the consent on such Schedule. In other cases the order shall be obtained before the settlement of the Allocation Schedule.

Receivable Orders to be lodged for redemption of Government charges.

14. When any quit, state or composition rent, state reversion, tithe rentcharge payable to the Land Commission, or fixed annual instalments in lieu thereof, or any Board of Works charge is being redeemed, the Owner or his Solicitor shall lodge with the Examiner for the vouching of the Allocation Schedule a receivable order issued from the proper office to enable the redemption price and arrears, if any, to be lodged to the proper account in the Bank of Ireland. Such receivable order shall specify separately the redemption price, the arrears, if any, and the income tax, if any, to be deducted from such arrears, and shall allow a sufficient time for lodgment.

Undertaking to apply redemption price of superior interest as capital money.

15. When the redemption price of a superior interest or of an apportioned part thereof exceeds thirty pounds, but does not exceed one hundred pounds, the undertaking to be given by the person in possession or in receipt of the income of the superior interest, or by the trustees to be appointed or approved by the Land Commission, to apply such redemption price as if it were capital money arising under the Settled Land Acts, 1882 to 1890, shall be in writing under his or their hand or hands, in Form 35. Where there is a vouching affidavit by the person or persons giving the undertaking, the undertaking shall be embodied in the affidavit.

Price of superior interest may be placed to separate credit and invested.

16. If by reason of incumbrances affecting a superior interest, or for any other reason, the price or compensation payable in respect thereof cannot be distributed at the general allocation, the Judicial Commissioner may order such price or compensation to be paid into the Bank of Ireland to such credit as he may direct, and may make such order as may be just as to the investment thereof, and as to the payment of the dividends and interest thereon pending its distribution.

Memorandum of redemption of superior interest to be endorsed on instrument creating same.

17. Save in the case of the superior interests mentioned in Rule 14 of this Order, a memorandum of the redemption of a superior interest or of any apportioned part thereof shall be endorsed by the Registrar upon the instrument, if any, creating such superior interest, unless such instrument be retained in Court, or is not forthcoming.

ARTICLE 10.

Order XLVI of the Rules of 1924 is amended by the substitution of the following Rule for Rule 1 thereof :

Attendance before a Commissioner or an Examiner.

1. Solicitors shall attend in person at the hearing of applications before a Commissioner and on vouching all claims before an Examiner and may conduct in person or by correspondence all other proceedings before an Examiner, but when a Solicitor is unavoidably absent he may be represented by his Dublin agent, being a registered solicitor, or by his own or his Dublin agent's registered apprentice or competent registered clerk, provided the agent, apprentice or clerk, as the case may be, is fully conversant with the subject matter of the application to the Commissioner, or with the title or business to be disposed of before the Examiner. Solicitors may be required by the Examiner to attend personally before him at any time.

ARTICLE 11.

Order XLVII is amended by the substitution of the following Rule for Rule 6 thereof :

Costs of Affidavit of Title to be certified for.

6. The Examiner shall certify on the back of the attested copy Affidavit of Title whether the whole or any and what portion of the costs thereof should be allowed ; and such allowance shall (unless otherwise expressed in the certificate) refer as well to the readings as to the Affidavit itself. The officer taxing such costs shall have regard to such certificate unless it be varied by the Judicial Commissioner. The costs of a supplemental Affidavit of Title shall be taxed as if the additional matter had been embodied in the original Affidavit unless the Examiner certifies that separate costs are to be allowed.

SECOND SCHEDULE.

PART I.

Scale of charges in respect of Purchase Money representing property the title to which has not been registered under the Registration of Title Acts, 1891 and 1942.

Where negotiation for the sale has been conducted without the aid of a solicitor, a reduction of 10s. shall be made in columns (1) and (2); 5s. in each of columns (3), (4) and (5); and 2/6d. in column (6).

PART II.

Scale of charges in respect of Purchase Money representing property the title to which has been registered under the Registration of Title Acts, 1891 and 1942.

Scale A.

Where the property has a notice of equities or of possessory title in the register that cannot be cancelled except after the examination of title prescribed by Rules 36 and 37, of the Land Registration Rules, 1959 ( S.I. No. 96 of 1959 ).

Where negotiation for the sale has been conducted without the aid of a Solicitor a reduction of £1 shall be made in columns (1) and (2); 10s. in column (3) and 5s. in column (4).

Scale B.

Where the property has no notice of equities or of possessory title or has a notice that may be cancelled on an application under Rules 34 or 35 of the Land Registration Rules, 1959 ( S.I. No. 96 of 1959 ).

Where negotiation for the sale has been conducted without the aid of a solicitor a reduction of 10s. shall be made in columns (1) and (2); 5s. in column (3) and 2/6d. in column (4).

THIRD SCHEDULE.

PART I.

Scale of charges in respect of Purchase Money and other funds representing property the title to which has not been registered under the Registration of Title Acts, 1891 and 1942.

PART II.

Scales of charges in respect of Purchase Money and other funds representing property the title to which has been registered under the Registration of Title Acts, 1891 and 1942.

Scale A.

Where the property has a notice of equities or of possessory title in the register that cannot be cancelled except after the examination of title prescribed by Rules 36 and 37, of the Land Registration Rules, 1959 ( S.I. No. 96 of 1959 ).

Scale B.

Where the property has no notice of equities or of possessory title or has a notice thereof that may be cancelled on an application under Rules 34 and 35 of the Land Registration Rules, 1959 ( S.I. No. 96 of 1959 ).

APPENDIX.

Form 138.—Affidavit to vouch claim to residue of purchase money.

(Heading and Title)

I, A. B.     of      (description)    (and, if married woman, wife of   ) aged 21 years and upwards make oath and say:—

1. The purchase money herein is now represented by £    Land Bonds together with £   cash interest and surplus cash (or otherwise as the case may be).

2. I say that there is not to my knowledge and belief any right, debt, interest or claim affecting the said purchase money other than as in the Allocation Schedule filed herein set forth.

3. After payment of all claims on the said Schedule a residue remains to which residue I say that I am entitled absolutely (or otherwise as the case may be).

4. I have not sold or incumbered or in any way dealt with the said residue or any part thereof and the same and every part thereof still remains justly due and owing to me (or otherwise as the case may be).

5. Source of knowledge, Order XXXI Rule 3.

Sworn etc.