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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Camiveo Ltd -v- Dunnes Stores [2015] IESC 43 (15 May 2015) URL: http://www.bailii.org/ie/cases/IESC/2015/S43.html Cite as: [2015] IESC 43 |
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Judgment
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THE SUPREME COURT [Appeal No: 333/14] Clarke J. Laffoy J. Charleton J.
Camiveo Limited Plaintiff/Respondent and
Dunnes Stores Defendant/Appellant Judgment of Mr. Justice Clarke delivered the 15th May, 2015. 1. Introduction 1.2 These proceedings were commenced in the High Court by summary summons. In the ordinary way, a motion for judgment was brought which came to be heard before the Court. Hogan J. determined that Dunnes had not met the test for being given leave to defend, and gave liberty to enter final judgment to Camiveo for recovery of arrears of rent, service charges and interest in the sum of €1,134,392.32 together with the costs of the proceedings. Dunnes has appealed to this Court against that finding. In addition, in the context of this appeal, Dunnes has sought to introduce additional evidence. However, the question of the admission of that additional evidence was itself closely connected to a question of whether Dunnes was truly entitled to rely, in pursuing its appeal, on grounds connected with the first registration of Camiveo's interests in the Shopping Centres for the purposes of the land registry. In order properly to understand those questions, it is necessary to turn briefly to the issues which remained alive by the time this case was argued before this Court. 2. The Issues 2.2 The first issue, which was argued before the High Court, concerned the fact that the deed of assurance by which Camiveo had acquired the Shopping Centres had, while executed by the vendor ("Radical"), not been executed by Camiveo. On that basis, Dunnes argued before the High Court that Camiveo had not been shown to be entitled to the landlord's interest in the leases in question and had not, therefore, been shown to be entitled to collect the rent and service charges in respect of which the proceedings were brought. That question turned on the issue of whether the absence of execution of the relevant documentation by Camiveo created any legal difficulty in Camiveo being entitled to enforce the obligations of the tenant, i.e. Dunnes, under the leases. 2.3 The second issue which Dunnes sought to canvas before this Court was, at least in one respect, connected. It would appear that there may be evidence to suggest that Camiveo has not yet become the registered owner of the Shopping Centres. It was in that regard that Dunnes brought a motion seeking to admit new evidence. That Camiveo was not yet registered was accepted by counsel for Camiveo in the course of the hearing before us. In that context, a question arose as to whether, in the light of s.25 of the Registration of Title Act 1964 (“the 1964 Act”), (as substituted by s.128 of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”)) Camiveo is entitled to enforce the lease until such time as first registration of their interest in the Shopping Centres is effected with Camiveo as the registered owner. That question involves an interpretation of s.25 of the 1964 Act and is, for reasons which I will set out, a very net question of law not involving any disputed issues of fact. It should also be recorded that, while maintaining formal opposition to Dunnes being entitled to argue the point in question by virtue of the fact that it had not been argued in the High Court, counsel for Camiveo did suggest that there might be some importance to the parties in having that issue resolved, for, it was accepted, the same issue had the potential to arise in respect of any further proceedings which might be brought for any continuing failure to pay rent and service charges. Against the background of those issues, I turn next to the proper approach of the Court to this appeal and to the question of whether Dunnes should be entitled to argue the first registration point. 3. The Proper Approach 3.2 Clearly it is inappropriate for a court, in considering the facts on a summary judgment application, to form any general view as to the credibility of the evidence put forward by the defendant (see Irish Bank Resolution Corporation (in special liquidation) v. McCaughey [2014] IESC 44), although there is, as identified in that judgment, a limited capacity to review the credibility of a defence put forward in very extreme circumstances by reference to the judgments of Hardiman J. in Aer Rianta c.p.t. v Ryanair [2001] 4 IR 607 and Finlay Geoghegan J. in Bank of Ireland v. Walsh [2009] IEHC 220. However, no such issues of fact seem to me to arise in this case. 3.3 It follows that it would be open to this Court to determine any questions of law arising in respect of either the point concerning the non-execution of the relevant documentation by Camiveo or arising out of the effects of s.25 of the 1964 Act provided that it was appropriate to decide those questions of construction or interpretation in the confines of a summary judgment motion. 3.4 The principles applicable to the exercise by this Court of its entitlement to entertain, on appeal, a point not argued at first instance were authoritatively stated by O'Donnell J. in Lough Swilly Shellfish Growers Co-Op Society Ltd. v. Bradley [2013] 1 I.R. 227 in the following terms at para. 28:- "There is a spectrum of cases in which a new issue is sought to be argued on appeal. At one extreme lie cases such as those where argument of the point would necessarily involve new evidence, and with a consequent effect on the evidence already given (as in K.D. (otherwise C.) v. M.C. [1985] I.R. 697 for example); or where a party seeks to make an argument which was actually abandoned in the High Court (as in Movie News Ltd. v. Galway County Council (Unreported, Supreme Court, 25th July, 1977)); or, for example where a party sought to make an argument which was diametrically opposed to that which had been advanced in the High Court and on the basis of which the High Court case had been argued, and perhaps evidence adduced. In such cases leave would not be granted to argue a new point of appeal. At the other end of the continuum lie cases where a new formulation of argument was made in relation to a point advanced in the High Court, or where new materials were submitted, or perhaps where a new legal argument was sought to be advanced which was closely related to arguments already made in the High Court, or a refinement of them, and which was not in any way dependent upon the evidence adduced. In such cases, while a court might impose terms as to costs, the court nevertheless retains the power in appropriate cases to permit the argument to be made". 3.5 There is at least something of a connection between the new point sought to be argued here and the point which was before the High Court. Both are concerned with the legal requirements which must be in place before a transferee of the interest of a landlord in a lease can be entitled to sue on the lease. In addition, the new point sought to be argued is a pure question of law which does not require any consideration of controversial facts. For those reasons, it is appropriate to position the point sought to be argued in this case at least towards the end of the spectrum identified by O'Donnell J. in Lough Swilly in which the Court might, everything else being equal, be disposed towards allowing a new point to be argued. 3.6 However, it seems to me that there is an appropriate quid pro quo for the Court adopting that position. In my view, the Court should allow Dunnes to rely on the new point on the basis that there is no reason why that point cannot be definitively determined at this stage within the confines of a summary judgment motion. It is a point of pure law involving the construction of one section of an act. It seems unlikely that any greater length of time would have been devoted to the hearing on the point in question before this Court had the point arisen in an appeal after a full hearing. This is, therefore, the type of point in which the Court has a discretion to reach a final conclusion on a summary judgment motion (although, as pointed out by Denham J. in Danske Bank, a court is never obliged to reach a final decision on such points). However, in the circumstance of this case I am satisfied that it would be appropriate both to permit Dunnes to raise the point but also to reach a final conclusion on the question of interpretation which that point gives rise to. In reaching that conclusion I have, at least in part, been influenced by the position adopted by Camiveo, which did not point to any real prejudice in the point being canvassed and which did not strenuously resist Dunnes being permitted to argue the question. In that context I would admit the proffered new evidence which is not, as I have already noted, disputed as to its accuracy. 3.7 Finally, I should add that it seems to me that the point arising out of the non-execution of the relevant deed of assurance is also one which can and should be finally resolved by this Court on this appeal. The facts are not in dispute. The deed was not, at any material time up to the conclusion of the summary judgment hearing in the High Court, executed. The terms of the deed are, likewise, not in dispute. Whether a deed of that type, transferring the interest of a landlord to a purchaser, requires to be executed before the landlord can enforce the lease in question is, therefore, a matter of law involving the terms of both the deed of assurance and the lease. It involves no disputed questions of fact and is a net question of law. 3.8 Furthermore, there is no dispute but that Radical has been paid all of the monies due under the transaction and has itself executed the relevant deed of assurance. Affidavit evidence was before the High Court on behalf of Radical which made it clear that it did not assert any continuing interest in the Shopping Centres or in the landlord's interest in the leases over the properties. 3.9 In those circumstances, it seems to me that the proper approach to adopt is to consider both the execution point and the registration point on their merits and to definitively determine them in the context of this appeal. I, therefore, turn first to the execution point. 4 The Execution Point "However, a Deed of this kind is valid and efficacious even if one party has not signed it provided that it is not sought to make the non-executing party liable under the Deed. If a party signs the Deed they are bound by the associated burdens. This principle is merely a variant of the old doctrine that you cannot sue on foot of a document unless the party to be charged has signed it. It is unusual and doubtless is an oversight that the Deed was not executed by the plaintiff but, as between the plaintiff and the defendant, the defendant is bound by the Deed of Assurance. The very act of the plaintiff in suing as landlord in respect of the rent allegedly due would estop it from denying that it is the landlord. The mere fact that the plaintiff has not executed the Deed does not render it invalid or unenforceable. I do not have to consider estoppel but there is evidence that the defendant is estopped from denying the title of the plaintiff and that the plaintiff would likewise be precluded from denying that it is the landlord under the Deed. I refer in that regard to the small insurance sum which was paid by the defendant to the plaintiff. However, I do not rest my decision on this." 4.2 It is against those findings that Dunnes appeals. There was significant reliance placed by Dunnes at the hearing of this appeal on what was said to be confusion or uncertainty as to the true identity of the person or entity to whom the landlord's interest in the Shopping Centres was to pass. There is no doubt that there was some early correspondence which was confused. It is also true that the precise arrangements entered into by Camiveo which, it would appear, is a general partner in a partnership and purports to hold the legal interest in that capacity, do not involve an absolutely straightforward transfer of the landlord's interest to a purchaser who is to be the sole legal and beneficial owner. However, the deed of assurance is clear. The entity to which the interest of the landlord purports to pass under that deed is Camiveo and no-one else. Subject to the execution point, I do not see how there could now be any conceivable doubt but that Camiveo has become the owner of the landlord's interest. 4.3 The legal position is, in my judgment, well settled and is simply and authoritatively stated in the leading text book, Norton, A Treatise on Deeds 2nd Ed., (London, 1928) at pp. 26-27, where the author says that "Though execution of a deed is necessary to bind the grantor, yet a party who takes the benefit of a deed is bound by it though he does not execute it.…" 4.4 For the purposes of this case, there seems to me to be two important aspects to that clear principle. First, in the ordinary way, a deed does not have to be executed by the grantee in order that it take effect in the grantee's favour. A deed executed by the grantor (the vendor in the case of an ordinary purchase transaction) will transfer the interest of that party once it is executed by the party concerned and irrespective of whether it has been executed by the party to whom that interest is to be transferred. 4.5 I did not understand counsel for Dunnes to dispute that general proposition. However, it was argued on behalf of Dunnes that the leases under which Dunnes holds its property contain covenants on the part of the landlord such as, for example, a covenant which might preclude another major store being opened in the Shopping Centres. On that basis it is said that Dunnes is entitled to be satisfied that Camiveo is bound by the landlord's obligations under the leases, for otherwise Dunnes might be left without redress in the event that there was any breach. Counsel for Camiveo did suggest that this was a somewhat hypothetical issue for, it was said, there was no question of a breach of the landlord’s obligations. I am not sure that this, in itself, is an answer. The question with which this Court is concerned is one of principle, being whether, in the context of the leases in question, the landlord's interest can be said to have passed even though the landlord has not executed the deed of assurance. The answer to that question could not be affected by whether there happened to be an issue as to whether the landlord had been in breach of an obligation placed on that landlord under the leases in question. Either the landlord's interest has passed or it has not. If it has not passed then the fact that there might not have been any issue over compliance with the landlord's obligations would not cause it to pass. Likewise, if it has passed then the absence of any dispute would not change that fact either. 4.6 However, it is in that context that the second aspect of the principle identified in Norton seems to me to be conclusive. It is clear that a party who purports to take the benefit under a deed will be bound by the terms of that deed even if they have not executed it. That is but an example of the general rule of law which does not permit a party to approbate and reprobate the same transaction. A party cannot have the benefit of a deed while at the same time disavowing its obligations under the same deed. 4.7 That represents an entirely logical and commonsense position. If a deed contains benefits and burdens then it would, of course, be wrong to say that by simply executing the deed and purporting to confer the benefits on a named party, the burdens would also be placed on that named party without that party executing the deed in question and, thereby, accepting the burdens. The named party is entitled to consider whether it wants to take up the burdens and whether the combined effect of the benefits and the burdens makes it worthwhile. But the named party cannot have it both ways. If it takes the benefits it must also take the burdens contained in the same deed. 4.8 This is a classic example of the working of that general principle in action. Camiveo has paid the money, the vendor accepts that it has divested itself of all of its interests in the property, Camiveo has not executed the deed of assurance but has acted as owner by attempting to collect rents. Camiveo has, therefore, clearly and beyond any dispute, acted in a manner consistent only with it taking the benefit of the deed and is, therefore, in accordance with the principle identified in Norton, "bound by it though he does not execute it". 4.9 It follows that it is manifestly clear that Camiveo is bound, as a matter of common law, by the terms of the lease in favour of Dunnes insofar as that lease may place any obligations or burdens on the landlord. That is so because Camiveo has taken the benefit of the deed of assurance of the ownership of those lands in its favour and cannot, therefore, escape any burdens which flow from that ownership. In that context, it seems to me that the trial judge was completely correct to take the view that there was no merit whatsoever in the execution point and to refuse leave to defend on that basis. 4.10 Before leaving the execution issue, it should be noted that Dunnes sought to rely on s.64 of the 2009 Act. However, it is clear that s.64 is concerned solely with the methodology of effecting execution and has nothing to do with the circumstances in which a party may be bound by a deed even though they have not executed it. I am not satisfied that any basis has been shown for suggesting that the deed of assurance, which was, of course, from Radical to Camiveo, was executed by Radical other than in accordance with the requirements of section 64. 4.11 Camiveo sought to place reliance on s.69 of the 2009 Act, which expressly provides that a reservation operates without execution of the conveyance or regrant by the grantee. On that basis, I am satisfied that Camiveo was also correct to argue that the suggestion made by Dunnes, which sought to place reliance on the existence of any exceptions or reservations in favour of Radical in the relevant deed, could not, because of the provisions of s.69, in any way be said to have prevented the interest of the landlord passing to Camiveo under the deed in question. Those additional points simply confirm the position which I have already identified, which is that there is no merit in any aspect of the execution point raised by Dunnes and that the trial judge was correct in refusing leave to defend on that basis. It is then necessary to turn to the registration point. 5 The Registration Point "25.— A person shall not acquire an estate or interest in land in any case in which registration of ownership of the land is or becomes compulsory under section 23 or 24 unless the person is registered as owner of the estate or interest within 6 months after the purported acquisition or at such later time as the Authority (or, in case of refusal, the court) may sanction in any particular case, but on any such registration the person’s title shall relate back to the date of the purported acquisition, and any dealings with the land before the registration shall have effect accordingly." 5.2 It will be noted that the section indicates than an estate or interest is not to be acquired unless the relevant person "is registered as owner" within six months or such later time as the Property Registration Authority ("the Authority") or the Circuit Court on appeal may sanction. It is important to note that it is the actual registration which is required to occur within six months or such extended time as may be provided. The section makes no reference to the time within which the application to register is required to be made. 5.3 The background to this issue is the very radical extension in the obligation of first registration which came about as a result of the 2009 Act. Up to that time, compulsory registration in the main only arose in respect of three counties or because of state ownership. For historical reasons, much agricultural land became registered land by virtue of the fact that its ownership was affected by measures adopted by the Land Commission, which measures carried with them an obligation of first registration. However, a great deal of urban land was not registered. The main urban areas were not included in those counties in respect of which compulsory first registration previously applied. 5.4 The net effect of all of this was that the 2009 Act created an extensive new obligation of first registration which applied to large amounts of land including much developed, urban land and arose on the sale of such lands. Thus, one of the practical consequences of the widespread sale of assets in recent years has been the obligatory first registration of much of the land in question. Many of the relevant properties in respect of which that obligation arose are investment properties which are subject to leases. While it may not affect the legal rights and obligations arising, it is worth noting that, in the absence of an enormous increase in resources, it would be highly unlikely that the Authority would be in a position to handle, in any timely way, all of the applications for first registration which necessarily arise. 5.5 Be that as it may, it is necessary to consider Dunnes' point. Dunnes argues that s.25 is clear in its terms and prevents the interest of a landlord from passing to a purchaser unless and until first registration has been effected. It is said, importantly, that a consequence of this is that a relevant purchaser of land which is subject to a lease does not have a right to collect rent until first registration is completed. Furthermore, it is said that where, as here, an application for first registration is not made within six months of the relevant transaction, additional difficulties arise. In the course of discussion with the Court, counsel for Dunnes, fairly, squared up to the consequences of that submission. It does seem to be the case that, if the position adopted by Dunnes in this case is correct, then a great number of parties who have bought the landlord's interest in urban investment properties in recent years may have, unwittingly, purchased properties where they will have no right to collect rent until the Authority finds itself in a position, under the burden of a great number of applications, to give effect to a first registration application. But, as counsel pointed out, if that is the clear meaning of s.25 then the Court must give effect to it even if the consequences are as drastic as suggested. 5.6 I will turn to the question of the proper construction of s.25 in early course. However, it is important to make a number of points concerning issues which do not seem to be relevant. First, it does not seem to me that the time of the application for first registration is particularly relevant. It is, of course, the case that it would be impossible for first registration to be effected within six months if the relevant application is not made until after six months has elapsed. But even if the application is made well within the six month period, the section speaks of the estate or interest not passing until registration is actually effected. The section makes no reference to the time of application. It follows that, on the construction advanced by Dunnes, the entitlement of a purchaser to enjoy the benefit of an acquired estate or interest in land which is subject to the first registration requirement is postponed for an indefinite period until the resources of the Authority permit it to complete the application for first registration. That would, indeed, amount to a very significant impairment in the property interests of purchasers who will, after all, have paid the purchase price and would, under the ordinary law, be entitled to an immediate enjoyment of the property concerned. In the context of investment property, the primary means of such enjoyment is, of course, the receipt of rent for the property concerned. 5.7 The second side issue concerns the potentiality for an extension of time. The section itself makes clear that the Authority may sanction an additional period. Contrary to the submission of Dunnes, there is nothing in the section which requires a party to make an application for an extension of time. Rather, the Authority may, of its own volition, extend time. Clearly, in cases where an application for first registration is made within six months, the Authority may well feel constrained to extend time if it should prove impossible to deal with the application within a six month period through no fault of the applicant. But the Authority is also entitled to take a general view that it will not penalise parties who do not make their application within six months, although the Authority is, nonetheless, required to assess whether it is appropriate to extend time in any particular case. 5.8 It is in that context that correspondence from the Authority in this case is of some relevance. 5.9 The text of a letter written by the Authority in this case is as follows:- “Dear Sirs, I refer to your recent enquiry regarding the operation of Section 25 of the Registration of Title Act 1964, as substituted by Section 54 of the Registration of Deeds and Title Act 2006. In line with the function of the Authority to promote and extend the registration of ownership of land, as set down in Section 10(1)(b) of the Registration of Deeds and Title Act 2006, it is not the general policy of the Authority, to refuse to sanction lodgement of an application for first registration, at a time later than the 6 month period after execution of the disposition. Any such refusal would be appealable to the Court. In these particular cases, the applications for first registration have been accepted for processing. The examination of the titles presented has commenced and is ongoing. Subject to rulings on title, mapping, any continuation searches directed by the Chief Examiner of Titles and to the applications being otherwise in order, registration will proceed. Subject as aforesaid, on completion of registration, the applicant’s title will relate back to the date of execution of the relevant disposition. Yours faithfully, Fergus Hayden Deputy Registrar 24 July 2014” 5.10 It seems to me that the intent of that letter is clear. First, the Authority has made it clear that it does not have a general policy of refusing applications for first registration just because the application is made outside the six month period. Second, and importantly, it is clear that the Authority is prepared to consider this application on its merits notwithstanding the fact that it was not made within that six month period. It seems clear that the Authority retains the entitlement, in an appropriate case, to decline so to do, and in that context the Authority has clearly not adopted an impermissible fixed policy. However, it is absolutely clear on the uncontested facts of this case that the question of the timing of the application by Camiveo for first registration in this case is no longer an issue and that the Authority intends to consider it on its merits. In those circumstances, I cannot see how the timing of Camiveo's application is of any relevance. The Authority has, in substance, effectively extended time. The application will be determined on its merits and in whatever timeframe the resources of the Authority permit. Camiveo is, in that context, in no different a position to any other applicant for compulsory first registration, whether that applicant applied within or outwith the six month period. Camiveo will have to wait until the resources of the Authority permit the first registration application to be completed, but, likewise, it is in the same position as very many other applicants in that regard. 5.11 Finally, by way of background, it is also important to note that s.25 is not dissimilar in its terms from the general law concerning registration under s.51(2) of the Registration of Title Act 1964. The interest of a registered owner is only transferred to a new owner on the transferee becoming registered. It is true that s.90 of the 1964 Act expressly permits a person who is entitled to become the registered owner, but who has not yet been registered, to deal in the land, although it is silent on the question of whether a transferee might be entitled to recover rent on foot of a lease pending registration. However, the underlying position, which is consistent with the principle behind the registration of title system, is that it is only the registered owner who is recognised. That principle gives rise to the requirement that a purchaser must actually become the registered owner before the relevant interest in the land is actually taken to be transferred, and likewise, is in part behind the requirement in s.25 that actual registration take place before the relevant estate or interest can be said to have passed. 5.12 It follows from the foregoing that, if the argument of Dunnes is correct, a landlord transferring their interest in developed property which is subject to leases must necessarily be taken to lose the right to collect rent in respect of the leases in question until such time as the registration of a transfer (in the case of land already registered) or a first registration (in the case of land which was, up to that time, unregistered) takes place. It is true, as counsel for Dunnes accepted, that an obligation to pay back rent would, in any event, arise once proper registration had been effected. But there can be no doubt that, if the construction put forward on behalf of Dunnes is correct, the obligation to pay rent will be postponed until registration is actually achieved. Given that the time of actual registration, and not the time of an application for registration, is the operative point in time for these purposes, it follows that the period during which the obligation to immediately pay rent would, on that view, be postponed would be largely dependent on the ability of the Authority to deal with the relevant transaction rather than being affected by any actions on the part of the parties. That would be quite an extraordinary, and, indeed, it must be said, almost certainly an unintended, consequence of the legislation. But again, as counsel correctly pointed out, if that is the correct construction of s.25 then the Court must enforce it whatever the consequences may be. 5.13 A provision similar in terms to the current s.25 has been present in the registration of title legislation going back to the Local Registration of Title (Ireland) Act 1891. Section 25 of that Act, which is in similar form to the current provision, was considered both in Re Furlong and Bogan's Contract [1893] 31 L.R. Ir. 191 and in Re Mitchell and McElhinney's Contract [1902] 1 I.R. 83. 5.14 In Re Furlong and Bogan's Contract, Chatterton V-C expressly noted (at p.195) that the wording of the section provided that "it is enacted that on the registration being effected it shall relate back to the date of the execution of the conveyance; and then follow words which clearly recognize the right of the purchaser to deal with the lands pending the registration, namely 'and any dealings with the land before the registration shall have effect accordingly'". It should be noted that the current s. 25 contains exactly the same wording. 5.15 On that basis Chatterton V-C held that:- "It is true that the vendor had not yet acquired any estate in the lands, but she had an inchoate right incapable of being defeated, and only waiting for an official duty to be performed to become an absolute estate". 5.16 Likewise, in Re Mitchell and McElhinney's Contract, Porter M.R. described (at p. 88) a vendor whose registration as owner had not been completed as having a "perfectly good holding title". 5.17 On the basis of an analysis of those cases, the authors of Wiley and Woods, Irish Conveyancing Law (3rd Ed.) at p.366 para. 12.50 suggest that, once an instrument of transfer has been put in place and the balance of any purchase monies owing has been paid, the purchaser has an equity to be registered as owner and has an unregistered right to the land valid as against the registered owner and all other persons except a registered transferee for value. In my view that correctly states the legal position. 5.18 To like effect, the author of McAllister, Registration of Title in Ireland (Dublin, 1973) suggests, at p. 47, that the effect of those cases is that "although no estate passes a right or equity to the ownership does pass under the conveyance". 5.19 It seems to me that the law on this point is clear and long established. The Oireachtas, in enacting the 2009 Act and the revised version of s.25 of the 1964 Act contained in it, used language which had been the subject of clear and consistent judicial determination over the years. It must be presumed that the Oireachtas did not intend to bring about any change in that clear judicial interpretation. On that basis, it is clear that, even though no estate or interest in the land in question passes until such time as first registration is effected, a purchaser has a sufficient equity in the property to give them a right to the land which is valid against anyone other than a registered transferee for value. In other words, someone who fails to give effect to first registration runs a risk. If it were to happen that a grantor (such as Radical in this case) were to transfer the land to someone else (who took without notice) and who became the registered owner, then the party who was grantee in the earlier deed would not have a sufficient equity or entitlement to defeat the interests of that newly registered owner. But in respect of all other persons the earlier grantee would have a superior unregistered right in the lands. 5.20 In passing, it should also be noted that even the theoretical risk of which I have spoken would have had no application to the facts of this case. The deed of assurance dated the 7th May, 2013, from Radical to Camiveo was registered in the Registry of Deeds on the 27th May of that year. When the sale was closed, the title to the Shopping Centres was an unregistered title and, accordingly, priority was governed by the Registration of Deeds Act (Ireland) 1707 which Act remains in force and is likely so to remain until all land becomes subject to the registration of title regime. Thus, a third party would not have been able to take the property concerned without notice because any such third party would have been required to conduct a search in the Registry of Deeds, and by so doing would have identified the deed of assurance and have been notified of the priority which Camiveo had acquired by that deed. Therefore, even the theoretical risk which I have identified as facing a party who delays in complying with their obligation of first registration would have had no application in this case. But aside altogether from that question it is clear, for the reasons already addressed, that Camiveo has an unregistered right in the lands which is in practice good in respect of all persons. 5.21 Applying that general principle to the position of the owner of a landlord's interest, it is necessary to analyse the various rights and obligations which arise. If Dunnes' argument is correct then it follows that the interest of Radical cannot be said to have passed to Camiveo unless and until first registration has been effected. But it logically follows from that proposition that Radical remains the owner of the relevant estate or interest in the land. What would happen if Radical were to seek to collect the rent from Dunnes? First, on what basis could Dunnes say that they did not have to pay the rent? The whole point of Dunnes' submission is that the interest of the landlord cannot be said to have passed to Camiveo. If it has not passed to Camiveo then it must remain in Radical. On the basis of Dunnes' argument being correct, Dunnes could not refuse to pay Radical. But if Camiveo, hardly surprisingly, were to complain to Radical about the rent being received by Radical, what answer could Radical give? As is clear from the authorities to which reference has been made, Camiveo has an unregistered right which is valid as against the vendor, being Radical. Therefore, Camiveo is entitled, as against Radical, to receive any rent to which Radical might otherwise be entitled. It follows that, even if Dunnes were to proffer the rent to Radical, Camiveo would be entitled, as against Radical, to take that rent. 5.22 For Dunnes to suggest that the proper interpretation of s.25 leads to the conclusion that it does not have to pay rent to Camiveo necessarily means that the rent would have to be paid to Radical, as no estate or interest would have passed. But it would follow that to adopt that position would be to allow Radical to benefit as landlord as against Camiveo, which is entirely contrary to the authorities. It seems to me to follow that there is nothing in s.25 which precludes a person who has been the subject of an apparently valid assurance of lands which are subject to an obligation of first registration from enforcing any of the rights which go with the ownership of the lands in question pending first registration being put into effect. Before concluding on this aspect of the case, I would make one further observation. 5.23 Counsel for Dunnes suggested in the course of argument that we did not know what the result of the application for first registration on the part of Camiveo might be. At a highly theoretical level, that may be so. However, Dunnes itself cannot contest the title of its original landlord and is not in a position to contest the title of Radical. It must, from Dunnes' perspective, therefore, be presumed that Radical would have been entitled to first registration, for to question that entitlement would be to permit Dunnes, as tenant, to question the title of their own landlord from whom they hold whatever interest in the Shopping Centres they have. 5.24 But there is no basis on which it can be suggested that the assurance from Radical to Camiveo did not effectually pass all of Radical's interest in the Shopping Centres to Camiveo, subject only to registration. While it is true that the principle that a tenant cannot question his landlord's title does not necessarily apply in a way which would preclude a tenant from questioning, on a legitimate and stated basis, whether the interest of his former landlord had validly passed to a new owner, nonetheless, no sustainable basis was put forward in this case for suggesting that there was anything untoward about the deed of assurance between Radical and Camiveo which would have prevented Radical's interest from passing to Camiveo as a matter of ordinary property law. The execution point which might have led to a different conclusion has, of course, been rejected. 5.25 It follows that Dunnes is precluded from making any argument which suggests that Radical would not have been entitled to first registration, and has not put forward any basis for suggesting that the entitlement of Radical did not fully pass to Camiveo. For the purposes of this case there just is no basis for suggesting that Camiveo is not entitled to first registration. It is, therefore, appropriate to describe the position of Camiveo in the same language as was used by Chatterton V-C in the context of Furlong and Bogan's Contract at p.195. Camiveo has "an inchoate right incapable of being defeated and only waiting for an official duty to be performed to become an absolute estate". 5.26 On that basis I am more than satisfied that Camiveo is entitled to enforce the entitlements of the landlord under the leases with Dunnes, including requiring the payment of rent and service charges. 6 Conclusions 6.2 For the reasons also set out in this judgment I am satisfied that the fact that the deed of assurance by which Camiveo acquired the Shopping Centres was not, at the time when this case was at hearing before the High Court, executed by Camiveo, does not prevent Camiveo from being able to enforce the relevant leases against Dunnes. 6.3 It follows that the appeal should be dismissed and the order of the High Court affirmed. | ||||||||||||||||||||||||||||||||||||||
