Thank u for your opinion .
It is the RECEVIER who claims that the land charged by the debenture on foot of which he was appointed
The Debenture excludes - excluded property - defined as any property or interest in any property in which the chargor has entered into a contract for sale and is in receipt of the entire proceeds but has not entered into a deed of assurance - from any floating charge. So the contract exists.
U recommend lifting of the caution to allow common areas be transferred. But receiver sending out very mixed message of intention - e.g. to land registry on 21 May that my caution was preventing receiver form effecting the transfer but in contract for sale of development land in Drogheda contain a no recourse clause - warning purchaser that he may not be entitle to all land cos a third party may have title but make no disclosure of beneficial interest of man co in any lands. he want to keep man co off the title.
I sent letter however to land registry 11 9 14 - conditional consent to the caution being withdrawn in consideration for the registration of transfer of land to the man co. The idea that the lodgement of the transfer wld activate the consent. (Attached)
But caution was lifted. And charge now on folio to allow receiver exercise power of sale. ??.
S40 of the Conveyancing and Law Reform Act of 2009 pertain to
transfer of part or parts of property where grant in such case created easements over the part retained for the benefit of the part sold and under S40.3 does not o/wise affect the creation of easements to give effect to the common intention of the parties to the grants.
The transfer here are site transfer which recite the intent that MPH will dispose of the land less the dwellin
g houses to the man co and furnished the undertaking s to do .
I would be obliged for counsel opinion on S40.3 - if it kicks into protect these easements for benefit of sites when common intention of parties not effected and if so is land registry defeating the intention by charging the lands prior to lodgement of transfer of common areas to man co in land registry . .