CONSULTATION
PAPER
ON
REFORM AND
MODERNISATION
OF
LAND LAW AND
CONVEYANCING LAW
(LRC CP 34 –
2004)
IRELAND
The Law Reform
Commission
35-39 SHELBOURNE
ROAD, BALLSBRIDGE, DUBLIN 4
©
Copyright
The
Law Reform Commission
First
Published
October 2004
ISSN
1393-3140
THE LAW REFORM
COMMISSION
Background
The
Law Reform Commission is an independent statutory body whose main aim is to
keep the law under review and make practical proposals for its reform. It
was established on 20 October 1975 pursuant to section 3 of the Law Reform
Commission Act 1975.
The
Commission’s Second Programme for Law Reform, prepared in consultation with the
Attorney General, was approved by the Government and copies were laid before
both Houses of the Oireachtas in December 2000. The Commission also works
on matters which are referred to it on occasion by the Office of the Attorney
General under the terms of the Act.
To
date, the Commission has published seventy Reports containing proposals for the
reform of the law; eleven Working Papers; thirty three Consultation Papers; a
number of specialised papers for limited circulation; An Examination of the
Law of Bail; and twenty four Annual Reports in accordance with section 6 of
the 1975 Act. A full list of its publications relating to land law and
conveyancing is contained in the Appendix to this Consultation
Paper.
Membership
The
Law Reform Commission consists of a President, one full time Commissioner and
three part-time Commissioners. The Commissioners at present are:
President:
The
Hon Mr Justice Declan Budd
High Court
Full-Time
Commissioner:
Patricia T Rickard-Clarke
Solicitor
Part-Time
Commissioner:
Dr Hilary A.Delany, Barrister-at-Law
Senior Lecturer in Law, Head of Law School,
Trinity College Dublin
Part-Time
Commissioner:
Professor Finbarr McAuley
Jean Monnet Professor of European Criminal Justice, University
College Dublin
Part-Time
Commissioner:
Marian Shanley
Solicitor
Secretary:
John Quirke
Research
Staff
Director
of
Research:
Raymond
Byrne BCL, LLM
Barrister-at-Law
Legal
Researchers:
Deirdre
Ahern LLB, LLM (Cantab), Solicitor
Alan Brady LLB, LLM (Lond),
Attorney-at-Law (New York)
Ronan Flanagan LLB, LLM (Cantab)
Roberta Guiry BCL
Orla Joyce BCL, LLM (Cantab)
Sinéad Ring BCL (Law & German)
Mary Townsend BCL, LLM (NUI)
Aisling
Wall BCL, LLM (Cantab)
Administration
Staff
Project
Manager:
Pearse
Rayel
Legal
Information
Manager:
Marina
Greer BA, H Dip LIS
Temporary
Legal Information Manager:
Conor Kennedy BA, H Dip LIS
Cataloguer:
Eithne
Boland, BA (Hons), H Dip Ed,
H Dip LIS
Executive
Officer:
Denis
McKenna
Private
Secretary to the
President:
Liam
Dargan
Clerical
Officers:
Alan
Bonny
Debbie Murray
Principal
Legal Researcher on the Consultation Paper
Professor
J.C.W. Wylie LLM (Harvard), LLD (Belfast), Professor of Law at Cardiff University
Other
Legal Researchers involved with this Consultation Paper
Mark
O’Riordan, BCL, Barrister-at-Law
Trevor
Redmond LLB, MPhil, LLM Cantab), Barrister-at-Law
Mary
Townsend BCL, LLM (NUI)
Contact
Details:
Further
information can be obtained from:
The
Secretary,
The
Law Reform Commission,
35-39
Shelbourne Road,
Ballsbridge,
Dublin
4.
Telephone
(01) 637 7600
Fax
No
(01) 637
7601
Email
info@lawreform.ie
Website
www.lawreform.ie
THE PROJECT
In late 2003 the Department of Justice, Equality
and Law Reform and the Law Reform Commission established a joint project for
the major reform and modernisation of land law and conveyancing law. This
was seen as part of a larger programme of reform in this area of law that was
already being undertaken by the Commission. The ultimate goal of that
programme is the introduction of an e-conveyancing system similar to those
being developed in other jurisdictions. The need to develop a system
suitable to this jurisdiction means that the larger programme will take some
years to develop. In the meantime, it was regarded as important to
modernise the substantive law which underpins the conveyancing system.
This concerns in particular the huge range of pre-1922 statutes which relate to
land law and conveyancing law and remain as part of the legislation in force in
the State.
It was envisaged that the project would involve
three phases. The first phase would involve a screening of the
pre-1922 statutes with a view to identifying those which can be repealed
without replacement, as being obsolete or otherwise inappropriate in 21st
century conditions. This phase would also identify those statutes, or
parts of statutes, which remain of relevance to modern conditions, and would
involve identification of what amendments would be required in order to ensure
that they achieve their purposes as effectively as possible in modern
conditions. It would also involve a review of the general law with regard
to its need for reform. The second phase would consist of a
consultation process initiated by the publication of a Consultation Paper. The third
phase would involve the drafting of a Bill (or Bills) to give effect to the
conclusions reached at the end of the second phase.
In February 2004 the Department appointed Professor
J.C.W. Wylie the Legal Researcher responsible for carrying out the first
phase of the project. Professor Wylie also chairs the Commission’s
Substantive Law Working Group, which is part of the e-Conveyancing
Project. This Group, together with a representative of the Department,
has provided advice and assistance in the carrying out of the first
phase. Its members are:
The Hon Mr Justice Declan Budd,
President of the Law Reform Commission
Commissioner Patricia T Rickard-Clarke
Commissioner Marian Shanley
Seamus S. Carroll, Department of
Justice, Equality and Law Reform
Vivienne Bradley, Solicitor
Dr John Breslin, Barrister-at-Law
Patrick Fagan, Solicitor
Chris Hogan, Former Senior Deputy
Registrar at the Land Registry
Caroline Kelly, Barrister-at-Law
Deirdre Morris, Solicitor
Marjorie Murphy, Solicitor
Doreen Shivnen, Barrister-at-Law
Trevor Redmond, one of the Commission’s
legal researchers, was Secretary to the Group during most of the period leading
to preparation of this Consultation Paper. His successor in this role is
Mary Townsend, who assisted in the preparation of this Paper for publication.
On 29 June 2004 the Minister for Justice, Equality
and Law Reform, Mr Michael McDowell TD, made a public announcement relating to
the Joint Project. He stated that it was intended that it would:
●
Simplify the law and improve its presentation, in order to make it easily
understood and accessible for practitioners and the public alike
●
Update the law to accommodate changing social, demographic and economic needs, eg,
new forms of property ownership
●
Make the conveyancing of property easier and faster with a view to reducing
costs and delays.
The Minister drew attention to the three phases of
the Joint Project referred to earlier and stated that the first stage would be
completed by the publication by the Law Reform Commission of a Consultation
Paper in October 2004. This is that Consultation Paper. He stated
that the second phase would culminate in a Conference to be held on 25 November
2004. This would study the reform proposals made in the Consultation
Paper as well as the ongoing modernisation of the Land Registry and
preparations for e-conveyancing. The Minister also stated that it was the
intention that the draft Bill (or Bills) to give effect to the reform proposals
would be available as early as August 2005. Finally the Minister stated
that reform of the law in this area would represent a major contribution to the
Government’s Programme of Regulatory Reform, as outlined in the 2004 White
Paper Regulating Better.
Chapter 1
HISTORICAL BACKGROUND
(1).. The Concepts of Tenure and Estates
(1) Confusion
of Freehold and Leasehold
(i) Repeal without replacement
(ii)Replace with
substantial amendment
Chapter 4
SETTLEMENTS AND TRUSTS OF LAND.. 39
(4) Protection
of Third Parties
Chapter 5
POWERS OF APPOINTMENT
Illusory
Appointments Act 1830
Powers
of Appointment Act 1874
Law of
Property Amendment Act 1859, Section 12
Conveyancing
Act 1881, Section 52
Conveyancing
Act 1882 Section 6
Fragmentation
of the Legal Title
Party
Structures and Boundaries
Former
Crown Rents and Similar Rights
(2) Express
Grants and Reservations
(3) Implied
Grants and Reservations
Chapter 8
CONTRACTS AND CONVEYANCES
(1) Statute
of Frauds (Ireland) 1695
(2) Sale
of Land by Auction Act 1867
(3) Vendor
and Purchaser Act 1874
(1) Statute
of Uses (Ireland) 1634
(2) Conveyancing
Act (Ireland) 1634
(3) Maintenance
and Embracery Act (Ireland) 1634
(5) Law
of Property Amendment Act 1859
(6) Law
of Property Amendment Act 1860
(7) Sales
of Reversions Act 1867
(8) Voluntary
Conveyances Act 1893
(1) Clandestine
Mortgages Act (Ireland) 1667
(3) Mortgagees
Legal Costs Act 1895
(4) Conveyancing
Acts 1881–1911
Chapter 11
REGISTRATION OF DEEDS
Chapter 13
MISCELLANEOUS MATTERS
Family
Home Protection Act 1976
Drainage
and Improvement of Land Legislation
Chapter 14
SUMMARY OF RECOMMENDATIONS
APPENDIX
A LISTINGS OF PRE-1922 STATUTES
APPENDIX B LAW COMMISSION
REPORTS AND CONSULTATION PAPERS ON LAND LAW AND CONVEYANCING LAW
A
Scope of the Project
1.
The publication of this Consultation Paper marks the completion of the first
phase of the Joint Project.[1]
It contains the results of the screening of those pre-1922 statutes[2] relating to land law and conveyancing law[3] that are still in force in the
State. It also contains the results of a review of the general law[4] relating to this subject. As an
initiation of the consultation process, and of the second phase of the project,
the Consultation Paper sets out proposals for the reform and modernisation of
both statutes and the general law.
2.
In order to facilitate the completion of the third phase of the Joint Project,
which involves the preparation of a draft Bill (or Bills) to implement the
proposals for reform and modernisation,[5]
the Consultation Paper deals with the subject by topic in accordance with what
is anticipated would be the most logical order for parts of the draft Bill (or
Bills).[6]
The pre-1922 statutes and general law are dealt with according to the same
arrangement, but full listings of the statutes which would be repealed
altogether or replaced by the new legislation are set out in Appendix A.
It is important to emphasise that it is not intended that the new legislation
would codify the law. Although it would consolidate all pre-1922
legislation, much of the post-1922 legislation would remain in force.
Furthermore, many principles based on the common law or developments in equity
would remain, unless reformed by the new legislation.
B
Pre-1922 Statutes
3.
As the listings of statutes set out in Appendix A make clear, over 150
pre-1922 statutes would be replaced by the new legislation. These
statutes fall into four categories:
(a)
Pre-Union Irish Statutes. These are statutes enacted by various Irish
Parliaments prior to the Union of Ireland with Great Britain in 1801 (effected
by the Act of Union 1800, which was
enacted by the Westminster Parliament).
(b)
Pre-Union English Statutes. There are statutes enacted by the English
Parliament between 1226 and 1707 that applied to Ireland, either
under Poyning’s Act 1495 (enacted by the
Irish Parliament)[7]
or by express or implied provision.[8]
(c)
Pre-Union British Statutes. These are statutes enacted by the Parliament
of Great Britain between 1708 and 1800 that applied to Ireland.
(d)
Post-Union United Kingdom Statutes. These are statutes enacted by the
then Parliament of the United Kingdom of Great Britain and Ireland between 1801
and 1922 which applied to Ireland.
C
Guiding Principles
4.
The following principles[9]
were adopted in carrying out the first phase of the Joint Project:
(a)
updating the law, so as to make it accord with changes in society.
(b)
promoting simplification of the law and its language, so as to render it
more easily understood and accessible;
(c)
promoting simplification of the conveyancing process, in particular the
procedures involved, including the taking of security over land;
(d)
facilitating extension of the registration of title system, with a view
to promoting a system of title by registration;
(e)
keeping in mind the overall aims of the e-Conveyancing Project[10]
and facilitating introduction of an e-conveyancing system as soon as possible.
5.
The application of these principles to the numerous pre-1922 statutes examined as
part of the first phase screening process resulted in one of three conclusions
being reached with respect to each statute or, frequently, to individual
sections or parts of particular statutes. The three possible conclusions
were:
(I)
Repeal without
replacement. In such instances the conclusion was reached that the statute, or
particular part or section, should be repealed (as being obsolete or no longer
of any practical use or benefit in modern times) without any replacement being
included in the proposed new legislation.
(II)
Replace with
substantial amendment. In such instances the conclusion was reached that the
statute, or particular part or section, remained of some relevance, but it
should be replaced in substantially modified form, so as to render it more
effective or relevant.
(III)
Replace without
substantial amendment. In such instances, the conclusion was reached that the
statute, or particular part or section, remained relevant, but should be
re-enacted in the new legislation without substantial amendment.
With respect to category (I) due consideration will have to be given in the
third phase (the drafting of the Bill) to important matters such as the
possible need for transitional provisions, savings for accrued rights under
legislation being repealed and other consequences of repeals. As regards
categories (II) and (III), it is envisaged that the replacement legislation
will involve considerable recasting of old statutes in plain language, in
accordance with the principles set out in the Commission’s Report on
Statutory Drafting and Interpretation: Plain Language and the Law (LRC 61 –
2000).
D
Land Law and Conveyancing Law
6.
The work on the first phase of the Joint Project has been greatly assisted by
the fact that over the past decade or so the Law Reform Commission has
published several Reports relating to land law and conveyancing law.
These were based upon the studies carried out by the Commission’s Land Law and
Conveyancing Law Working Group, and contained numerous recommendations on
discrete points, many of which remain to be acted upon. The essential
difference with the first phase of the Joint Project is that it involves
looking at the whole area of land law and conveyancing law in the round.
However, the opportunity was taken to reconsider the various recommendations
contained in those earlier Reports, and for the most part they have been
incorporated into this Consultation Paper. Hence, there is frequent
reference to those Reports, and a full listing of them is given in Appendix
B. The Commission also recently published a Consultation Paper on
Judgment Mortgages (LRC CP 30 – 2004) based upon the work of its e-Conveyancing
Substantive Law Working Group. The recommendations contained in that
Paper have also been incorporated into Chapter 10 of this Consultation Paper.
7.
The area of land law and conveyancing law is an extremely broad one, as the
scope of this Consultation Paper demonstrates. It is, however, important
to draw attention to two aspects which would probably be regarded as coming
within its scope, but have been excluded from it. One is the law of
landlord and tenant, which is itself, a very broad area of the law, and in
respect of which numerous pre-1922 statutes remain in force. The reason
this area has been largely excluded from this Consultation Paper is that it is
being dealt with in a separate exercise. The Commission established the
Landlord and Tenant Project Group in July 2001 and engaged the services of
Professor Wylie as its expert consultant and leader. Two Consultation
Papers have already been published,[11]
and others are in the course of preparation. One of these will identify
pre-1922 landlord and tenant statutes to be repealed or replaced. Having
said that, it should be noted that this Consultation Paper does deal with some
aspects of leasehold law as part of its review of general land law and
conveyancing law. For example, in considering the law relating to estates
in land, it deals with the “hybrid” estates once so common in Ireland, such as
leases for lives renewable for ever[12] and leases for lives combined with a term of years.[13] In considering the law relating to
settlements of land, it deals with the numerous statutes conferring powers,
including the power to lease settled land that was given to limited owners like
tenants for life.[14]
In relation to the law of adverse possession, it deals with the difficult
issues relating to how that law applies to leasehold land.[15]
8.
The reference to settlements of land in the previous paragraph points to the
other area excluded from this Consultation Paper. Settlements of land can
take several forms and frequently, but not necessarily, will involve the use of
an express trust, with the land being held by trustees on behalf of specified
beneficiaries. All forms of settlement are dealt with by the Consultation
Paper, so that it covers trusts of land,[16] but it does not deal otherwise with the
general law of trusts. The reason for this is that the Commission has
established a separate project on this, which will include a review of pre-1922
legislation dealing with trusts, such as the Trustee Act 1893 and
statutes concerning charitable trusts.[17]
E
Outline of this Consultation Paper
9.
As indicated earlier,[18]
the Consultation Paper deals with pre-1922 statutes and the general law
relating to land law and conveyancing law on a topic by topic basis.
These topics accord with what it is envisaged will be the separate Parts[19] of the Bill to be drafted in the third
phase of the Joint Project to implement what is proposed in this Paper.
However, the Paper begins in Chapter 1 with an outline of the historical
background to our land law and conveyancing law, including the pre-1922
legislative underpinnings. The ensuing chapters then deal with the various
topics corresponding to the envisaged substantive Parts of the Bill.
10.
Chapter 2 deals with the concept of “tenure” and the various “estates” which
can be held in land. This includes a consideration of the position of the
State and the complications arising from the position of the British Crown
prior to 1922. Chapter 3 deals with future interests and the various
rules governing their creation and operation, such as the rule against
perpetuities. Chapter 4 deals with settlements and trusts of land and
Chapter 5 with powers of appointment. Chapter 6 deals with
co-ownership. Chapter 7 deals with “appurtenant” rights over land, such
as easements, profits ŕ prendre and freehold covenants.
Chapter 8 deals with the broad area of contracts and conveyances relating to
land. Chapter 9 deals with mortgages and Chapter 10 with judgment
mortgages. Chapter 11 deals with registration of deeds. Chapter 12
deals with the law of adverse possession. Chapter 13 deals with miscellaneous
matters not falling naturally into one of the topics dealt with by the previous
chapters, including some other pre-1922 statutes.
F
The Consultation Process
11.
As indicated earlier,[20] this Consultation Paper not only marks the completion of the
first phase of the Joint Project, it also prepares the ground for the
consultation process which comprises the the second phase, and which includes
the holding of the Conference to take place on 25 November 2004.[21] With the title “Modernising Irish
Land Law and Conveyancing Law”, the conference will focus on the proposals
contained in this Consultation Paper and, in recognition of the Joint Project’s
place in the larger e-Conveyancing Project,[22] on the modernisation of the Land
Registry and preparations for e-conveyancing. The preparation of the
draft Bill to implement the proposals in the Consultation Paper, which is the
third phase of the Joint Project, is already underway, but submissions on the
proposals are welcome and will be taken into consideration as part of the third
phase. Those who wish to make submissions should do so in writing to the
Commission by 31 December 2004.
Chapter 1
HISTORICAL BACKGROUND
1.01
The history of Irish land law, and of its closely allied subject,
conveyancing law, has been a long and tangled one. Fortunately, its details
have been chronicled elsewhere[23]
and need not be repeated here. What may be helpful, however, is a brief
summary of some key features of the historical development of the law.
The object of this is partly to illustrate how archaic much of our law remains
and partly to explain the significance of the proposals for change contained
later in the Consultation Paper.
A
The Feudal System
1.02
It is remarkable that much of our current law stems from the
introduction of the Norman feudal system of land ownership. That system
was imposed on England and Wales following the Norman Conquest beginning in the
11th century and was introduced to Ireland from the late 12th
century. Its imposition on Ireland was a long drawn-out affair, and it
was not until the early 17th century that the native Irish “Brehon”
system was finally displaced.[24]
Nevertheless, this imposition of the feudal system resulted in Irish land law
and conveyancing law acquiring numerous fundamental features, many of which
remain of significance in the 21st century.
(1)
The Concepts of Tenure and Estates
1.03
Key features of the feudal system were the concepts that all land was
held ultimately from the Crown (the concept of “tenure”) and that any person or
body other than the Crown would hold (own) an “estate” in the land. It
was the estate held which determined how long the person or body (or, if it was
an estate of “inheritance”, heirs or successors in title) could own the land.[25] The feudal system did not
recognise “allodial” ownership – absolute ownership of land (rather than
holding it from a superior “lord”) by any person or body other than the Crown
(or State) – and this remains a feature of our law.[26] Another feature of our law are the
categories of “estates” developed under the feudal system, so that landowners
today still own estates such as the “fee simple”, “fee tail”[27] and “life estate”. In strict
theory no person or body owns “the land” (the physical entity comprising the
surface of the earth,[28]
as well as buildings and other structures erected upon it),[29] but rather, what is owned is the
somewhat metaphysical notion of an estate or interest[30] in the land. It is the estate or
interest in the land which can be bought and sold, leased and mortgaged, and
several estates or interests can be owned by different persons at the same time
in respect of the same piece of land.
1.04
As the feudal system was increasingly imposed on Ireland, its
paraphernalia was imported, including much of its complex scheme of different
forms of tenure and the various “services” and “incidents” owed to or enjoyed
by the superior lord (grantor).[31]
The legislation enacted in England, which was designed to protect the position
of the grantor, in particular, the most superior (or ultimate) grantor, the
Crown, was made applicable to or was applied by the Crown courts in Ireland.[32] Even centuries later, when much of
the old feudal system had crumbled[33]
and had been supplemented by a different form of tenure (the modern leasehold
system),[34]
the Irish Parliament was still inclined to enact the equivalent of earlier
English legislation.[35]
Much of this legislation remains in force.
(2)
The Concept of “Freehold”
1.05
As a result of an English statute applicable to Ireland, Quia
Emptores 1290,[36]
and a much later Irish statute, the Tenures (Abolition) Act (Ireland) 1662,[37] the concept of a
“freehold” owner of land developed. The 1290 statute conferred on all
landowners holding under one of the forms of “free” tenure[38] the right to dispose of the land without
having to obtain the superior grantor’s consent. This established one of
the fundamental principles of our land law which survives to this day, the
so-called rule against inalienability.[39]
Unlike a leaseholder, upon whom it is common to impose restrictions on
alienation,[40]
an attempt to prevent a freehold owner from alienating the land will be
void. The significance of the 1662 Act is that it abolished most forms of
feudal tenure which had previously existed and converted existing ones into a
form of free tenure.[41]
Furthermore, although the services that used to have to be performed under the
various forms of tenure tended later to be commuted into money payments by way
of rent, over time the need to make such payments fell into disuse.
Thereafter the distinction between a freeholder and a leaseholder became clear,
although some considerable blurring was to occur in Ireland later.[42]
(3)
Subinfeudation
1.06
Another important feature of the statute Quia Emptores 1290 was
that it prohibited further “subinfeudation” by landowners other than the Crown,
ie the practice of sub-dividing the land by making sub-grants to others,
who, in turn, might cause further sub-division by making sub-sub-grants and so
on. Each sub-dividing rendered the collection of services due to superior
owners very difficult and also diluted the value of many of the incidents attaching
to the tenure.[43]
The most superior of grantors, the Crown, had most to lose and so the statute
provided that in future any dispositions by a landowner had to be by way of
“substitution”, in effect an outright assignment of the landowner’s estate to a
new owner who stepped into the assignor’s shoes. Although this resulted
over time in most freehold land being held directly from the Crown (now the
State), with no intermediate owners,[44]
an important qualification has to be added for Ireland.
1.07
Quia Emptores 1290 did not prohibit subinfeudation by the Crown
and this became significant in Ireland during the turbulent 17th and
18th centuries. These times were marked by large-scale
confiscation of land in Ireland by the English Crown, following various
rebellions and uprisings,[45]
and its “resettlement” in favour of English and Scottish settlers.[46] The Crown grants made in favour of
these settlers frequently contained a “non obstante Quia Emptores”
clause, authorising the grantee to make further sub-grants. The estate
granted to the grantee was a freehold one, the fee simple. It may be
questioned whether the Crown had the right to abrogate Quia Emptores in
favour of other persons,[47]
but that issue became largely academic because the Irish Parliament confirmed
most of these Crown grants by passing various Acts of Settlement.[48] Furthermore, it was usual for such
Crown grants in Ireland to reserve the payment of rent to the Crown.
These Crown rents, or “quit” rents as they were known in Ireland,[49] remained a feature of our law until very
recently.[50]
A consequence of this was that there was created in Ireland a category of
freehold owners who were liable to pay rent, hence the blurring of the
distinction between freehold and leasehold ownership. In effect these
early Crown grants, and sub-grants made subsequently under the “non obstante
Quia Emptores” clauses, were an early form of a type of land grant which
became very common in Ireland: the fee farm grant.[51]
(4)
Copyhold
1.08
A key feature of the feudal system was the unit of landholding known as
the “manor” – hence the expression “lord of the manor”. This comprised
the large manor house owned by the landowner and the immediate land attached to
it (the “demesne”). It would usually have a number of “unfree” tenants
(“villeins”), who would be permitted to cultivate a limited amount of land and
be subject to the manor’s court for settlement of disputes. In due course
transactions entered into by such tenants and the lord of the manor (usually
through his steward or bailiff) were recorded on the manor’s court rolls.
This led to the tenure of such tenants being referred to as tenure “by copy of
the court roll”, or in shorthand, “copyhold”.[52] It is probable that some such
system existed in parts of Ireland in the early centuries of imposition of the
feudal system, but it is unlikely that it survived the upheavals of the 17th
and 18th centuries’ process of confiscation and resettlement,[53] still less the land purchase schemes of
the 19th century.[54]
Nevertheless, there was much legislation enacted on the subject for Ireland,
such as that relating to manor courts, which were not abolished until the
enactment of the Manor Courts Abolition (Ireland) Act 1859. This
Act, however, simply transferred the jurisdiction to the then petty sessions
courts.[55]
The Copyhold Acts, enacted at Westminster, provided for commutation of manorial
rights and enfranchisement of copyhold tenants and applied expressly to
Ireland.[56]
Yet it may be significant that the Copyhold Act 1894, which consolidated the
earlier Acts, expressly did not apply to Ireland.[57] That Act repealed all the earlier
Acts, but, because it did not apply to Ireland, it would appear that the
earlier Acts remained on the Irish statute book and still do![58]
(5)
Crown Land
1.09
Another consequence of the Norman Conquest and imposition of the feudal
system of tenure was, of course, that the Crown acquired much land, some of
which was retained rather than being re-granted or resettled on subjects.
In Ireland the acquisition of land by the Crown was greatly increased by the
confiscations of the 17th and 18th centuries mentioned
earlier.[59]
Over the centuries much legislation was enacted relating to the management of
such land and much of this applied, expressly or by implication, to Crown land
in Ireland. Any such land became vested in the State in 1922, but much of
the old legislation has remained on the statute book. As is discussed
later, this is no longer appropriate.[60]
B
Leasehold Tenure
1.10
As the centuries following the Norman Conquest passed, the freehold
owners holding land under the feudal system of tenure began to develop a
different form of tenure. This new form of tenure was not part of the
feudal system, and so was not governed by the principles, including those
enshrined in statute law,[61]
of that system. The new form of tenure was initially a purely contractual
arrangement between the freehold owner and the person allowed to occupy and use
some of the freeholder’s land in return for a money payment by way of
rent. This new form is what became known as leasehold tenure.[62] The notion of a leasehold owner
(or tenant) holding an “estate” in the land, comparable to the estates held by
a freehold owner,[63]
only became established when the courts in the 17th century recognised that a
leasehold tenant could also bring an action for recovery of possession of the
land from someone who had taken possession of it wrongfully. This was the
action of ejectment,[64]
which survives to this day in various forms.[65]
1.11
Following the large-scale confiscations and re-settlement of land in
Ireland during the 17th and 18th century[66] the new settlers given freehold[67] grants of large
tracts of land quickly realised the convenience and benefits of letting much of
the land to leasehold tenants. Many of the freehold settlers became
“absentee” landlords, leaving the running of their Irish estates in the hands
of agents. This sowed the seeds of the “Irish land problem” which the
Westminster Parliament struggled to solve during the latter half of the 19th
century. This subject is taken up later,[68] but first more must be said about the leasehold
system of tenure as it developed in Ireland.
(1)
Confusion of Freehold and Leasehold
1.12
One striking feature of the Irish leasehold system is the variety of the
forms of leasehold arrangements which developed. Apart from the
traditional forms, such as a tenancy for a fixed period of years or lesser
fixed period and a periodic tenancy, like a yearly, monthly or weekly tenancy,[69] there emerged several categories which
involved a mixture of freehold and leasehold concepts.
1.13
One category that has already been mentioned is the fee farm
grant. Originally, this was essentially a freehold concept, in that the
tenure created was freehold despite the prohibition on making further freehold
grants contained in the early statute, Quia Emptores 1290. The
estate granted to the grantee was also a freehold one, the fee simple. As
explained earlier,[70]
this was made possible in Ireland because of the special dispensation contained
in the Crown grants re-settling the land following the 17th and 18th
century confiscations. The rent reserved in such “non obstante Quia
Emptores” fee farm grants[71]
was not therefore, in strict theory, a leasehold rent, but nevertheless was a
“rent service” and probably recoverable like a leasehold rent.[72] Very few of such grants will have
survived the operation of the late 19th and 20th century
land purchase schemes.[73]
1.14
Much more common were the other categories of fee farm grants which
involved a more obvious confusion of freehold and leasehold concepts. One
such category was the various types of “conversion” grants facilitated[74] or created[75] by statute.[76] The key feature of such grants was
that the grantee had originally been granted[77] a lease only, so that leasehold tenure
only existed. The estate granted might or might not have been a leasehold
one. In some cases it would have been,[78] but in others it might have been a
freehold one, as in the case of a lease for lives renewable for ever.[79] Once the conversion took place,
however, the interest held by the grantee was clearly a freehold one, the fee
simple. However, in most[80]
other respects, the grantee remained a leaseholder, subject to the payment of
rent and performance of other obligations contained in the original leasehold
grant. The usual remedies for recovery of rent and enforcement of other
obligations available to a landlord remained available to the fee farm grantor.[81]
1.15
Considerable stimulus for the creation of fee farm grants was provided
by the Landlord and Tenant Law Amendment Act, Ireland, 1860. This
Act, invariably known as “Deasy’s Act”,[82] introduced some radical changes to
traditional leasehold land. One was to abolish the notion of tenure and,
with it, the requirement that the landlord should hold a reversion in the land.[83] Instead, the relationship of
landlord and tenant in Ireland was in future to be based upon the “contract” of
the parties.[84]
The precise effect of these provisions has long been controversial and the
generally accepted view is that they were probably not as revolutionary as they
had first appeared.[85]
However, what is clear is that it facilitated the creation of a new category of
fee farm grant, one where the grantee obtained a freehold estate (fee simple),
but subject to payment of a perpetual rent and performance of various other
perpetual obligations. The grantor would hold no reversion, but would be
entitled to receive the rent and to enforce its payment, and performance of
other obligations entered into by the grantee, by invoking all the usual
landlord’s remedies for enforcing a leasehold tenant’s obligations.[86] Such grants grew in popularity and
are still made in modern times.[87]
1.16
Other forms of confusion of the concepts freehold and leasehold occurred.
Apart from leases for lives renewable for ever discussed above,[88] it was also not uncommon to have a grant
of a lease for lives (a freehold estate) combined with a term of years in the
same grant.[89]
It was often a matter of construction as to whether the term of years was
concurrent with the lease for lives or was reversionary (ie ran from the
dropping of the last surviving life).[90]
Such leases are very rare nowadays.
(2)
Landlords’ Rights
1.17
As more and more leasehold arrangements were entered into by owners of
large estates, the initial response of the Westminster Parliament was to bolster
the position of the landlord. Thus much of the legislation on landlord
and tenant matters enacted during the 18th and early 19th
century was designed to improve landlords’ remedies against tenants.[91] This reached its zenith in Deasy’s
Act 1860, most of which is concerned with such matters[92] rather than the conceptual changes
mentioned earlier.[93]
It was only from the second half of the 19th century onwards that
the balance was altered in favour of tenants.
(3)
Tenants’ Rights
1.18
The Westminster response to agitation for alleviation of the
increasingly grim position of Irish agricultural tenants, which was illustrated
in the most appallingly graphic way by the famines of the 1840s, eventually
developed in two stages.[94]
The first was the enactment of legislation to confer various statutory rights
on tenants of agricultural and pastoral land. Thus the Landlord and
Tenant (Ireland) Act 1870 provided a right to compensation for improvements
and for disturbance if the tenancy was not renewed. The Land Law
(Ireland) Act 1881 gave statutory recognition to what were known as the
“Three Fs”, ie, the rights to be charged a fair rent (fixed by an
independent body),[95]
to make free sales of the tenancy[96]
and to have fixity of tenure.[97]
Such measures clearly improved the position of tenants considerably and the
principle of conferring such statutory rights was followed subsequently with
respect to urban tenants.[98]
It was then continued in the post-1922 Landlord and Tenant Acts.[99] The operation of the post-1922
legislation, and, indeed, of the pre-1922 legislation still on the statute
book, is being studied as part of the Commission’s separate Landlord and Tenant
Project.
(4)
Land Purchase Schemes
1.19
The bitter legacy left by the large scale 17th and 18th
century confiscations of land meant that the conferring of rights on tenants
was never likely to satisfy the demands for reform. The Irish wanted
their land back. This led to the second stage, the land purchase scheme.[100]
Under this scheme tenants of agricultural and pastoral land were given the right
to buy out the landlords’ freehold. Early recognition of this principle
followed from the disestablishment of the Church of Ireland by the Irish
Church Act 1869. That Act vested the substantial holdings of land
that had been previously vested in the Church in the Church Temporalities
Commissioners. The Commissioners were authorised to sell off the land to
the tenants, who were aided by loan of three-quarters of the purchase price,
repayable by way of a 32-year mortgage.[101] The principle of land purchase
was then extended to agricultural tenants generally by a series of Acts enacted
at Westminster during the remainder of the 19th century[102]
and early part of the 20th century.[103] It was then pursued with renewed
vigour after 1922, with further legislation being enacted. [104]
1.20
It is worth noting some major consequences of the land purchase scheme
at this point. One was that agricultural and pastoral land, which still
constitutes most of the landmass of the State, became the subject of freehold
tenure only and leasehold tenure largely disappeared. It is only in very
recent times that it has started to reappear.[105] Of even more significance from
the point of view of land law and conveyancing reform is that the freehold
title vested in tenant purchasers under the scheme was required to be registered
in the Land Registry.[106]
The result is that most agricultural land is now registered land and this is a
major contrast with much urban land, which remains unregistered land.[107]
(5)
Leasing Powers
1.21
A major legislative development of the 18th and 19th
centuries was the enactment of statutes conferring the power to lease land on
persons or bodies who could not otherwise dispose of land.[108] Thus various ecclesiastical
officeholders (such as bishops) and educational bodies were given statutory
powers to lease land. This was the derivation of the “bishop” and
“college” leases once so common in Ireland.[109] Similar statutory powers of
leasing were conferred on private landowners who held a limited freehold
interest only in the land (eg a fee tail or life estate), usually under
some family settlement. A plethora of statutes conferred such leasing
powers for particular purposes such as building churches, schools, corn mills,
prisons and hospitals, and for activities, such as bog reclamation, mining and
growing timber.[110]
Later, more general powers, including leasing powers, were conferred by
legislation such as the Settled Land Acts 1882-1890. Many of the
older statutes remain in force, as do the 1882-1890 Acts.
C
Family Settlements
1.22
Down through the centuries, when land remained the main source of wealth
and security, there was a natural desire amongst those fortunate enough to own
land to hold on to it. This was a particular aim of families who had
acquired substantial estates,[111] to whom “keeping it in the family” was
the guiding principle. This aim was adhered to by the English and
Scottish settlers granted land by the Crown following the confiscations of
Irish land during the 17th and 18th centuries.[112]
It was originally facilitated in the very early days of the introduction of the
feudal system. The Statute of Westminster II 1285 (De Donis
Conditionalibus) created the fee tail estate, the primary characteristic of
which was that the land was tied to being inherited by the grantee’s “heirs”, a
system of inheritance which could not be altered by the grantee’s will.[113]
Use of this estate and the other limited freehold estate recognised by our law,
the life estate, became the key to the creation by conveyancers of settlements
designed to ensure that the land passed through successive generations of the
same family. In due course large tracts of land became tied up in such
settlements, with the successive generations unable to deal with it
commercially because at any one time the current owner had only a limited
estate with which to deal.[114]
Eventually the legislature had to intervene and, as mentioned earlier, this was
done initially by granting leasing powers to such limited owners.[115]
Later legislation granted more extensive powers, such as the power to sell and
to mortgage the land. The result was a wide range of very complex legislation
culminating in the Settled Land Acts 1882-1890, which remain in force. [116]
D
Conveyancing
1.23
Over the centuries, conveyancing law developed in tandem with land
law. Although there is much overlap between the two laws, the most
convenient distinction to draw is that land law is concerned primarily with
defining the various estates and interests which can be owned under the legal
system, whereas conveyancing law is concerned primarily with determining how
these estates and interests can be dealt with (“conveyed”), eg, bought
and sold, leased and mortgaged.[117] Various archaic methods of
conveying land were developed under the feudal system, such as feoffment with
livery of seisin,[118]
and although the modern form of a deed (a document “under seal”) was confirmed
as an alternative by the Real Property Act 1845, those old forms[119]
have not, in fact, been abolished.
1.24
Many conveyancing transactions are carried out in several stages and, in
particular, usually involve execution of two documents.[120] The first involves entering into
a contract for the sale and purchase of the land.[121] Contracts relating to land
transactions have long been the subject of statutory control, imposed initially
by the Statute of Frauds (Ireland) 1695.[122] That Act remains in force.
The terms, or conditions, of such contracts tend to be very complicated and
again much legislation on this subject has been enacted which also remains in
force.[123]
In addition this legislation contains provisions relating to the other document
that is usually executed. This is the deed intended to complete the
transaction agreed by the parties to the initial contract.
E
Registration
1.25
Two systems of registration became key features of our land law and, in
particular, of our conveyancing system.[124] One was introduced at the
beginning of the 18th century, the Registry of Deeds system.[125]
During the 19th century a quite different system of registration was
introduced, a system of registration of title operated by the Land Registry.[126]
The two systems are mutually exclusive in the sense that in a particular
transaction relating to land,[127] the land will be either “unregistered”
land (ie its title is not yet registered and so the Registry of Deeds
system applies) or “registered” land (ie the title is already registered
in the Land Registry and so the Registry of Deeds system is irrelevant).[128]
(1)
Registration of deeds
1.26
The primary function of the registration of deeds system is to govern
the priorities as between different transactions relating to the same estate in
the same parcel of land.[129]
It provides a public register for recording the basic details[130]
of each document[131]
dealing with the land. A failure to register may result in that document
losing priority to a subsequent document which is registered, ie, the
person claiming rights to the land under the unregistered document may find
that they cannot be enforced against the land because the person claiming
rights under the subsequent, but registered, document has priority.
1.27
There is no doubt that the Registry of Deeds system has been a
considerable success over the centuries, even though it should be regarded as a
very limited “stop-gap” measure pending complete registration in the Land
Registry of the titles of all land in the State. Arguably that ultimate
aim has been in contemplation at least since the Land Registry was established
by the Local Registration of Title (Ireland) Act 1891. Not only
did it provide for compulsory registration of the titles to land purchased
under the land purchase scheme,[132] it also facilitated voluntary
registration of the title to other land. The 1891 Act was replaced by the
Registration of Title Act 1964, and this enshrined the ultimate aim by
including specific provisions for extension of the system of compulsory
registration, by designating any county or county boroughs as a “compulsory
registration area”.[133]
Unfortunately progress in realising the aim has been very slow, with only three
counties[134]
so far designated as compulsory registration areas and that was done over 30
years ago.[135]
Until the ultimate aim of the complete registration of all titles is achieved,
there will remain parcels of unregistered land to be governed by the Registry
of Deeds system.
1.28
Notwithstanding the considerable progress which has been made in recent
years in computerising the Registry of Deeds records, the fact remains that the
system remains governed by the original 1707 Act and later amending Acts.[136]
The Acts are couched in archaic language and are full of technical complexities
and requirements which are no longer appropriate. The case for updating
replacement is unanswerable.[137]
(2)
Registration of title
1.29
This system largely falls outside the scope of this Consultation Paper
because it was the subject of comparatively recent, post-1922, legislation, ie,
the Registration of Title Act 1964.[138] What is needed primarily is
completion of the computerisation programme instituted in recent years and
rapid progress on extension of compulsory registration of title, so as to
achieve the ultimate aim of having all titles throughout the State in the
system.[139]
When that is achieved the Registry of Deeds will become redundant.
However, the Paper does point out later that there are some flaws in the 1964
Act which ought to be dealt with as a tidying-up measure.[140]
F
Mortgages
1.30
One of the most common of transactions relating to land is the securing
of a debt by mortgaging the land. Two forms have gained particular
significance over the centuries. One is a loan mortgage, where the owner
of the land[141]
(the borrower) secures a loan by mortgaging the land in favour of the
lender. Frequently the borrower is a purchaser and mortgages the land at
the same time as it is purchased.[142] The other form of mortgage, which
is frequently used in Ireland, is the special statutory form created as a means
of enforcing a judgment debt,[143] a judgment mortgage.
(1)
Loan Mortgages
1.31
The law governing the creation of mortgages on land to secure loan debts
and the rights and remedies of the mortgagor (the borrower) and, more
particularly, of the mortgagee (the lender), has had a very long history.[144]
Although there has been some statutory intervention, much of it occurred over a
century ago,[145]
and the traditional methods of creating mortgages, and rules based on these
methods, have remained unchanged. Arguably these create unnecessary
complications, and frequently militate against the true nature of a loan
mortgage transaction – the securing of the lender’s loan.[146] The need for simplification and
rationalisation seems clear.[147]
(2)
Judgment Mortgages
1.32
The system of enabling a judgment creditor to register[148]
a judgment mortgage against the debtor’s land was introduced by the Judgment
Mortgage (Ireland) Act 1850[149] and has been much availed of over the
years. However, here again the original legislation still in force is
marred by considerable technical complexity and provisions which are no longer
appropriate. The Commission recently published a Consultation Paper on
this subject, recommending various reforms.[150]
G
Other Jurisdictions
1.33
Finally, it is worth drawing attention to reforms which have taken
place, or been proposed, in the two other jurisdictions which share much of the
historical development outlined above. This is particularly relevant in
the context of pre-1922 statutes, because many of these were shared by those
other jurisdictions, which are, of course, England (and Wales) and Northern
Ireland. England and Wales replaced most of the pre-1922 statutes
initially with the property legislation enacted in 1925,[151] which has since been modified
substantially.[152]
The law of Northern Ireland has been the subject to two major reviews,[153]
resulting in recommendations for wholesale reforms, some of which have been
implemented.[154]
These matters have been taken into consideration in carrying out stage one of
the Joint Project[155]
and further references to them will be found throughout the Consultation Paper.
Chapter 2
TENURES AND ESTATES
2.01
This chapter deals with the fundamental concepts of tenure and estates
which remain a feature of our law.[156] It seems clear that certain
aspects of this subject are quite inappropriate to a 21st century
system of land ownership. This is especially so in an independent state,
which Ireland has been for nearly a century, and where the relationship between
the State and its citizens is governed by a constitution such as the 1937
Constitution.
A
Tenure
2.02
What was said in the previous paragraph is particularly applicable to
the feudal concept of tenure. This was a concept imposed on Ireland by
conquest, just as it had been on England by the Normans after 1066.[157]
Amongst its key features were the principles that the Crown had acquired by
conquest a sovereign or “radical” title to all land and that individual
subjects would only be permitted to hold land from a superior “lord” and
ultimately from the Crown.[158]
Such subjects owed a duty of “fealty” or loyalty to the Crown and would forfeit
their right to hold land if services or conditions upon which it was held were
not performed. Various other events might cause the land to revert to the
Crown, such as a subject dying without leaving any “heirs” or successors to
take it. Although it would appear that this notion of tenure still applies
in Ireland, with all land[159]
now being held ultimately from the State and no other body or person being
entitled to absolute ownership (ie “allodial” ownership),[160]
it is no longer appropriate for several reasons.
(1)
The Constitution
2.03
The underlying basis of the feudal system of landholding, stemming from
the relationship of Crown and subjects bound by fealty, cannot be reconciled
with the relationship between the State and its citizens under the
Constitution. The courts have emphasised in a number of cases[161]
that Crown prerogatives are inconsistent with the democratic and republican
character of the State, as enshrined in both the 1922 and 1937 Constitutions.[162]
2.04
It is interesting to note that this inconsistency with the principles of
a democratic state governed by a written constitution was recognised in the
United States of America. The British had imposed also on that former
colony the principles of feudal tenure,[163] but following the American Revolution
and Declaration of Independence in 1776 it was quickly recognised that the
notion of feudal tenure could not survive. Several State legislatures[164]
enacted statutes declaring that feudal tenure no longer existed and that all
land in the particular state was “allodial”,[165] ie held
by citizens as absolute owners and not from the State by way of tenure.
The judiciary also recognised that feudal tenure had no place in the
post-independence era.[166]
In the robust words of Woodward J, giving the opinion of the Supreme Court of
Pennsylvania in Wallace v Harmstad[167]: “All our lands are held mediately or
immediately of the State, but by titles purged of all the rubbish of the dark
ages, excepting only the feudal names of things not any longer feudal.”[168]
(2)
Radical Title
2.05
The apparent “radical” title[169] of the State derived from the concept
of tenure has little or no practical significance. For example, it has
long been an established principle of our law that when the State, or any other
public body, wishes to acquire land, it must invoke some statutory power of
compulsory purchase.[170]
There is no question of the State being able to seize land on the basis that it
is the ultimate owner under the system of tenure. This would again be
inconsistent with the Constitution, in particular the guarantee of the right to
private ownership enshrined in Article 43.[171] A further illustration of the
loss of practical significance of tenure is the abolition of the concept of
escheat.
(3)
Abolition of Escheat
2.06
Escheat of land to the State or to a mesne lord[172] upon the death of a landowner, who made
no valid will disposing of the land and who had no intestate successors,[173]
was abolished by section 11(3) of the Succession Act 1965. Instead
section 73 of that Act provides that, in the event of no person being available
to take a deceased person’s estate as intestate successor, the State is to take
it “as ultimate intestate successor.”[174] It is further provided by section
28 of the State Property Act 1954 that, where a body corporate is
dissolved, its land thereupon becomes the property of the State.[175]
(4)
Recommendation
2.07
The time has surely come to recognise that the feudal concept of tenure
has no place in the Irish legal system in the 21st century. A
statutory provision similar to those enacted in various States in the United
States should provide for its abolition and declare that all land in the State
is allodial.[176]
For the avoidance of doubt, this should be declared to be without prejudice to
the position of the State under the State Property Acts 1954 and 1998.
Furthermore, it should also be made clear that the abolition of tenure does not
affect the estates and interests which can be owned in respect of land.
This is a subject which is dealt with later.[177]
B
Pre-1922 Statutes
2.08
It follows from the recommendation that the concept of tenure should be
abolished that old statutes relating to tenure can be repealed, for the most
part without replacement.
(a)
Repeal without replacement
Forfeiture
Act (Ireland) 1639: This Act
of the old Irish Parliament (15 Chas 1 sess 2 c 3) provided for relief against
forfeiture for grantees of Crown land who had not paid the feudal rent or
performed other feudal services. Most such services were abolished by the
Tenures Abolition Act (Ireland) 1662[178] and such few that remained owing to the
Crown, such as quit rents,[179]
were of such little value that the State has ceased to have any interest in
them.[180]
Tenures
Abolition Act (Ireland) 1662: This Act of the old Irish Parliament (14 & 15 Chas 2 sess 4 c 19)
has long since served its purpose of abolishing most of the old forms of feudal
tenure and converting them into what was then referred to as “free and common
socage”.[181]
The Act serves no purpose in the 21st century.
Copyhold
Acts 1843-1887: It was pointed out in the previous
chapter that it seems clear that the type of “unfree” tenure which came to be
known as copyhold did exist at one time in Ireland.[182] Furthermore the statutes enacted
at Westminster, during the 19th century, providing for commutation
of manorial rights and enfranchisement of copyhold tenants, did apply expressly
to Ireland.[183]
However, as was explained earlier, by the time the British legislation was
consolidated in the Copyhold Act 1894, any vestiges of copyhold had
disappeared in Ireland.[184]
This is, no doubt, why the 1894 Act did not apply to Ireland.[185]
The result was that the earlier Acts remain applicable to Ireland and should
now be repealed as obsolete.[186]
The Acts in question are:-
Copyhold
Act 1843 (6 & 7 Vic c 23)
Copyhold
Lands Act 1844 (7 & 8 Vic c 55)
Copyhold
Act 1852 (15 &16 Vic c 51)
Copyhold
Act 1858 (21 & 22 Vic c 94)
Copyhold
Act 1887 (50 & 51 Vic c 73).
Crown
Lands Acts 1819-1913: It was
also explained in the previous chapter that the British Crown acquired much
land in Ireland.[187]
Originally the process began with the 12th century invasion
instigated by Henry II, which led to the imposition of the feudal tenure
system. However the process was a long-drawn-out affair and was only
completed during the 17th and 18th century confiscations
arising from various rebellions by the Irish.[188] Much of this land was regranted
to English and Scottish settlers, but some was retained in the hands of the
Crown. In due course numerous statutes were passed at Westminster
relating to the administration and management of such Crown land. An
examination of these statutes reveals that many of them must have applied to
land in Ireland.[189]
A substantial number of these statutes remain unrepealed, but they can have no
relevance now. The reason for this is that any former Crown land which
became vested in the State is now governed by the Constitution, in particular
Article 10.[190]
In accordance with Article 10.3 provision for the “management” and “control of
the alienation” of State land has been made by statute, the State Property
Acts 1954 and 1998. The old British Crown Lands Acts
should, therefore, be repealed, so far as they are not already repealed.
The Acts in question are:-
Crown
Private Estate Act 1800 (39 & 40 Geo 3 c 88)[191]
Crown
Lands Act 1819 (59 Geo 3 c 94)
Crown
Lands (Ireland) Act 1822 (3 Geo 4 c 63)[192]
Crown
Lands Act 1825 (6 Geo 4 c 17)
Crown
Lands Act 1841 (5 Vic c 1)
Crown
Lands Act 1845 (8 & 9 Vic c 99)
Crown
Lands Act 1848 (11 & 12 Vic c 102)
Crown
Lands Act 1851 (14 & 15 Vic c 42)
Crown
Lands Act 1852 (15 & 16 Vic c 62)
Crown
Lands Act 1853 (16 & 17 Vic c 56)
Crown
Lands Revenues (Ireland) Act 1854 (17 & 18 Vic c 68)
Crown
Private Estates Act 1862 (25 & 26 Vic c 37)
Crown
Lands Act 1866 (29 & 30 Vic c 62)
Crown
Lands Act 1873 (36 &37 Vic c 36)
Crown
Private Estates Act 1873 (36 & 37 Vic c 61)
Crown Lands
Act 1885 (48 & 49 Vic c 79)
Crown
Lands Act 1894 (57 & 58 Vic c 43)
Crown
Lands Act 1906 (6 Edw 7 c 28)
Crown
Lands Act 1913 (3 & 4 Geo 5 c 8)
(I)
Replace with substantial amendment
Quia
Emptores 1290:
The Statute of Westminster III 1290 (18 Edw 1 cc 1-3) (Quia Emptores)
established a number of fundamental principles, only one of which remains of
relevance in the 21st century. Those which concern feudal
tenure, such as the prohibition on subinfeudation[193] and apportionment of feudal services,[194]
are obsolete and clearly can no longer have any significance with the abolition
of the concept of tenure (the new legislation should make it clear that it will
not be possible to create tenure in future). There is, therefore, no need
to retain such provisions in the new legislation.[195] What should be preserved in the new
legislation is the fundamental principle applicable to freehold land which was
also enshrined in the Statute.[196] This is the rule against
inalienability, ie, that a freeholder,[197] unlike a leaseholder, should not be
subject to undue restrictions on the right to dispose of the freehold interest.[198]
This is a principle which the courts have continued to recognise in recent
times[199]
and should be preserved in the new legislation.
2.09
The Commission provisionally recommends that the concept of tenure
should be abolished, and that old statutes relating to tenure should be
repealed, for the most part without replacement.
C
Estates
2.10
It does not follow from the proposed abolition of the concept of tenure[200]
that the other fundamental concept which was part of the feudal system, the
concept of “estates”,[201]
should also be abolished. Tenure was essentially concerned with the
relationship between the tenant (owner)[202] and the superior lord (ultimately the
Crown) from whom the tenant’s grant of the land was derived. That sort of
relationship has never been appropriate in the Irish State,[203] which is why it is recommended that the
concept of tenure should be abolished. On the other hand, the concept of
“estates” is concerned with the relationship between the owner and the land
owned. It is essential that the legal system defines clearly the
parameters of that relationship – it is this which determines exactly what
“ownership” of land comprises. As was pointed out earlier,[204]
what a landowner owns under our legal system is not the physical entity (“the
land”) as such, but rather some “estate” in that land.[205] On this basis it is important to
retain a concept such as that relating to estates.
2.11
The question arises as to whether the existing concept of estates, which
is feudal in origin, should be replaced by something else. On balance the
conclusion has been reached that at this stage replacement of a
well-established and understood concept is not justified and might do more harm
than good. Most urban land in the State, and, therefore, the subject of
the majority of transactions, remains unregistered land and subject to
traditional conveyancing procedures. This involves the perusal of deeds
and other documents referring to the well-recognised estates. Furthermore,
Article 10.1 of the Constitution refers to “estates and interests” in land. The
more appropriate time to consider replacement of the concept is probably when
most, if not all, land in the State has become registered land.[206]
2.12
Retention of the concept of estates does not, of course, rule out
modernisation and modification. The remainder of this Chapter deals with
this subject. Also, in accordance with one of the primary aims of the
Joint Project, it considers how far pre-1922 statutes relating to the various
estates recognised by our legal system should be repealed or replaced.
2.01
The Commission provisionally recommends that the
concept of an estate in land should be retained.
(1)
Fee Simple
2.02
This is the largest estate recognised by our legal system and is the
closest to absolute ownership. It would become even closer under the
proposed new system whereby the concept of tenure would be repealed with
“allodial” ownership.[207]
There are, however, some aspects of the fee simple estate which merit
consideration.
2.03
Over the centuries it has been not uncommon to create what are usually
referred to as “modified” fees simple, such as a determinable fee[208]
and a fee simple subject to a condition subsequent.[209] There seems to be no reason to
interfere with the law relating to such estates,[210] save in one respect. One
controversial point has been how far such a modified fee standing on its own[211]
should be regarded as creating a sufficient “succession of interests” to attract
the provisions of the Settled Land Acts 1882-90. The conclusion
has been reached that it is inappropriate to impose on the owner of such a
modified fee (which may never end because the event intended to trigger that
ending never occurs) the complications of such legislation.[212] This should be made clear in the
new legislation.
2.04
The Commission
provisionally recommends that it should be made clear in the new legislation
that a modified fee standing on its own does not attract settlements
legislation.
2.05
The other aspect of the fee simple estate concerns a particular
development of Irish land law which was mentioned in the previous chapter.
This is the confusion of the concepts of freehold and leasehold ownership.[213]
Perhaps the most striking manifestation of this was the creation of various
categories of fee farm grant.[214] This involves the grantee holding
a fee simple estate, but being liable for the payment of rent and, usually, for
performance of various other obligations, such as compliance with covenants
relating to user of the land and maintenance and repairs.[215] The question is whether such
confusion of concepts should be allowed to continue.
2.06
There is much strength in the argument that a modern system of land
ownership should be as simple as possible and readily understood by the general
public.[216]
Most members of the public understand that a leasehold tenant usually has to
pay rent to a landlord and perform various other obligations. It is
further understood that a failure to pay the rent or to perform other
obligations may have serious consequences, including the loss of the
tenancy. Very few would expect someone who owns the freehold to have to
pay rent and would find it very difficult to understand that a failure to do
so, or to perform other obligations, might result in loss of the
property. Yet, because most fee farm grants in Ireland create the
relationship of landlord and tenant between the grantor and grantee,[217]
that is precisely the position of a fee farm grantee.[218] Quite apart from the obvious
confusion of the position of a freehold owner and a leasehold tenant, arguably
this situation is out of keeping with the drive to get rid of ground rents in
recent decades.[219]
The creation of new ground rents in respect of dwellings was prohibited by the Landlord
and Tenant (Ground Rents) Act 1978.[220]
2.07
It is not entirely clear whether the 1978 Act prohibited the creation of
fee farm grants in respect of dwellings. A problem of interpretation
exists because the Act renders void only leases under which the lessee of
residential property would otherwise have the right “to enlarge his interest
into a fee simple”[221]
under the other ground rents legislation. The point about a fee farm
grantee is, of course, that the fee farm grant has already vested the fee
simple in the grantee, so there is no need to “enlarge the interest” into a fee
simple.[222]
Nevertheless, it would certainly be more consistent with the policy of ridding
residential property of the ground rent system if the prohibition in the 1978
Act did apply to fee farm grants. This should be made clear.
2.08
The Commission
provisionally recommends that it should be made clear that the Landlord and Tenant (Ground
Rents) Act 1978 prohibits the creation of a ground rent by way of fee farm
grant.
2.09
That raises the issue of whether the prohibition should be extended to
non-residential property. In the interests of simplification of the law
there is much to be said for such a provision. The reason fee farm grants
are created nowadays in respect of non-residential property is that it is the
only effective way to ensure that extensive covenants, in particular, positive
covenants such as those relating to repairs and maintenance, will bind
successors in title. This is because grants made under Deasy’s Act
create the relationship of landlord and tenant between the parties, so that
leasehold law applies[223]
rather than freehold law.[224]
However the Commission recently recommended substantial changes to the law of
freehold covenants[225]
which would, in effect, render such covenants as fully enforceable as leasehold
covenants. On the basis that these recommendations are implemented in the
new legislation, it is recommended that the creation of new fee farm grants
should be prohibited. In future where it is desired to create an
arrangement whereby rent is payable, a lease should be used.
2.10
The Commission provisionally recommends that the creation of new fee
farm grants should be prohibited. In future where it is desired to create
an arrangement whereby rent is payable, a lease should be used.
2.11
That leaves the issue of what to do with existing fee farm grants,
whether arising from statutory conversion provisions[226] or express grant. Again in the
interests of simplification, and, in particular, avoidance of the confusion of
freehold and leasehold ownership, it is recommended that the ground rents
legislation should be extended to enable all existing fee farm grantees to
redeem the rent. Such redemption should not affect the enforceability of
covenants (other than those relating to the rent) and these should remain fully
enforceable, but subject to provisions for discharge and modification recently
recommended by the Commission.[227] It should also be noted that the
Commission’s Landlord and Tenant Working Group has been reviewing the ground
rents legislation and will issue a separate Consultation Paper on the subject
in the near future. Any recommendations in that should be taken into
account in dealing with existing fee farm grants.
2.12
The Commission
provisionally recommends that the ground rents legislation should be extended
to enable all existing fee farm grantees to redeem the rent.
2.13
Turning to the subject of pre-1922 statutes, some do relate to fee farm
grants. Those relating to conversion grants are discussed later.[228]
The Fee Farm Rents (Ireland) Act 1851[229] was a short statute which provided for
certain remedies[230]
for recovery of fee farm rents and seems to have applied to any kind of grant.[231]
The Act must have had very limited impact and has little or no significance in
modern times. Almost all grants in existence today are leasehold
conversion grants or Deasy’s Act grants, under which the grantor has a
landlord’s full remedies to recover the rent.[232] Even prior to the 1851 Act
provision had been made for the relatively rare fee farm grant creating a
rentcharge. Thus the Distress for Rent (Ireland) Act 1712[233]
conferred a statutory right of distress for rent.[234] On the basis that it is now
redundant[235]
it is recommended that the 1851 Act be repealed without replacement.
2.14
The Commission provisionally recommends that the Fee Farm Rents
(Ireland) Act 1851 should be repealed without replacement.
(2)
Fee Tail
2.15
This estate was the creature of statute, the Statute of Westminster
II 1285[236] (De Donis Conditionalibus), and was designed to
enable feudal landowners to ensure that their land passed down through
successive generations of the family. It became the key device used by
conveyancers in later centuries in creating family settlements again designed
to keep the land in the family.[237] These were the times when land
was the main source of wealth and other forms of investment did not
exist. The effectiveness of the estate was, however, greatly reduced by
subsequent legislative developments. The ability of a tenant in tail to
“bar the entail”, so as to create a fee simple, was considerably simplified by
the Fines and Recoveries (Ireland) Act 1834.[238] Furthermore, a fee tail creates a
limited interest only in the land, whereby a succession of interests arises
because a fee simple reversion will also exist, so that it came within the
scope of the Settled Land Acts 1882-90.[239] This meant that the tenant in
tail acquired the extensive powers of disposal conferred by those Acts.
2.16
Such an estate is an anachronism in the 21st century.
It belongs to a different era and the creation of one has been unheard of in
modern times.[240]
Any met by practitioners nowadays will have been created decades ago in respect
of some large estate which has been in the hands of the same family for generations.
The time has come to consign the estate to history, by prohibiting its future
creation.[241]
As regards existing fees tail, given the extensive powers to bar the entail
contained in the Fines and Recoveries (Ireland) Act 1834, it is
recommended that the new legislation should bring about an automatic barring of
the entail, with the same result as the tenant in tail could produce by
executing a fully effective disentailing deed under that Act.[242]
2.17
The Commission
provisionally recommends the abolition of the fee tail estate and that the new
legislation should bring about an automatic barring of entails, with the same
result as the tenant in tail could produce by executing a fully effective
disentailing deed under the Fines
and Recoveries (Ireland) Act 1834.
2.18
The consequence of the above recommendations is that pre-1922
statutes relating to the fee tail estate can be repealed without replacement.
These are:-
Statute of
Westminster II 1285 (De Donis Conditionalibus) (13 Edw 1 c 1)[243]
Fines and
Recoveries (Ireland) Act 1834 (4 & 5 Will 4 c 92).
(3)
Life Estate
2.19
So far as the orthodox life estate[244] is concerned, there seems no reason why
this should not remain with its well-recognised characteristics,[245]
subject to one major change. Ever since the Settled Land Acts 1882-90
conferred substantial powers of disposition on tenants[246] for life, in particular, the power to
sell the fee simple, with the result that the proceeds of sale (capital money)
are held by trustees, the legal title derived from the life estate lost its
significance. In England this was recognised by the provision in section
1 of the Law of Property Act 1925 decreeing that in future a life estate
would operate in equity only.[247] This would become all the more so
here if the recommendations relating to settlements made later are implemented.[248]
Under these recommendations, all settlements of land and the creation of a life
estate necessarily involves a succession of interests[249] creating a settlement, would take
effect under a trust of the land, with the legal (fee simple) title being held
on trust for the persons entitled in succession (such as a tenant for
life). On this basis it is recommended that in future a life estate
should create an equitable interest in land only.
2.20
The Commission
provisionally recommends that, in future, a life estate should create an
equitable interest in land only.
2.21
The issue remains as to what to do about the combined freehold/leasehold
interests which were once so common in Ireland – the lease for lives renewable
for ever and leases for lives combined with a concurrent or reversionary term
of years.[250]
2.22
So far as leases for lives renewable forever are concerned, none can
have been created since 1849 because section 37 of the Renewable Leasehold
Conversion Act 1849 provided that any such leases would operate
automatically as a fee farm grant.[251] The 1849 Act enabled pre-1849
lessees holding such leases to convert them into a fee farm grant, but not all
such lessees took advantage of this. However, section 74 of the Landlord
and Tenant (Amendment) Act 1980 in such cases automatically vested the fee
simple in the existing lessee, subject to the same obligations[252]
arising from this being deemed a “graft” on the old lease. Unlike section
37 of the 1849 Act, section 74 does not use the expression “fee farm grant”, so
that, although the substantive effect is probably the same, what is vested in
lessees of pre-1849 leases should not be referred to as a fee farm grant.[253]
The result of these provisions is that leases for lives renewable for ever have
disappeared[254]
from the Irish land law system and so the pre-1922 statutes relating to them
have served their purpose and can now be repealed without replacement.[255]
2.23
So far as leases for lives combined with a term of years are concerned,
the reasons for their creation have also long since gone.[256] Again in the interests of
simplification the future creation of such leases, including a simple lease for
lives without any term of years attached, should be prohibited. So far as
existing ones are concerned, it is arguable that they are so rare nowadays that
they can be left to “wither on the vine”. It does not seem worth the
effort to include in the new legislation complicated conversion provisions to
turn them into fixed terms of years determinable on the dropping of the lives.[257]
2.24
The Commission
provisionally recommends that, in the interests of simplification, the future
creation of certain leases, including a simple lease for lives with or without
any term of years attached, should be prohibited.
2.25
The consequence of the above considerations and recommendations is
that a number of pre-1922 statutes relating to combined freehold/leasehold
interests can be repealed without replacement. These are:-
Life Estates Act
(Ireland) 1695[258]
Timber Act
(Ireland) 1767,[259] section 11[260]
Leases for Lives
Act (Ireland) 1777,[261] section 11[262]
Tenantry Act
(Ireland) 1779[263]
Renewal of Leases
(Ireland) Act 1838[264]
Renewable
Leasehold Conversion Act 1849[265]
Renewable
Leaseholds Conversion (Ireland) Act 1868[266]
Chapter 3
FUTURE INTERESTS
3.01
The law relating to future interests is an extremely complex one,[267]
but it was the subject of a major review recently carried out by the Law Reform
Commission. The results of this were set out in the Report on the Rule
Against Perpetuities and Cognate Rules.[268] This contains recommendations
which would radically alter the law and introduce considerable
simplification. In particular they would involve abolition of the rule
against perpetuities and cognate rules, such as the Rule in Whitby v
Mitchell, the rules relating to accumulations and the Rule in Purefoy v
Rogers.[269]
Clearly the new legislation should implement the recommendations contained in
that Report, subject to one qualification.
3.02
The Report recommended that the common law contingent remainder rules,
notwithstanding its acknowledgment that they are “shot through with anomalous
exceptions and, in skilled hands, are easily avoided”, should be retained.[270]
The Report pointed out that these rules were bound up with the feudal concept
of “seisin”, a key element in the collection of feudal dues.[271] They were designed to ensure
that, for example, no gaps in the seisin would occur when these dues could not
be collected. Clearly this original function of the rules has long since
gone and the abolition of tenure recommended earlier would be the final nail in
the coffin.[272]
However, the reason the Report did not recommend abolition of the rules is that
they do have a modern function.
3.03
The modern “valuable” function identified by the Report[273]
is that, in preventing an “abeyance of seisin”, the rules ensure that there is
always someone who holds the legal title[274]
to land. However, this view was taken in the narrow context of a review
of the law of future interests, rather than in the context of general reform of
land law and conveyancing law which is the subject of this Consultation
Paper. Again in the interests of simplifying the law for the 21st
century, there is a very strong case for getting rid also of the complexities
of the common law contingent remainder rules. The simplest way of doing
this is to provide that all future interests, contingent or otherwise,[275]
should operate in equity only and that only a fee simple in possession should
be a legal estate. The result would be that in future all future
interests would be held under a trust, with the legal title vested always in
trustees.[276]
This would accord with the proposed new scheme for settlements of land.[277]
On this basis the recommendation is now made that the common law contingent
remainder rules should also be abolished.
3.04
The Commission
provisionally recommends that the Law Reform Commission Report on the Rule
Against Perpetuities and Cognate Rules should be implemented subject to the
qualification that the common law contingent remainder rules should be
abolished.
3.05
The consequence of the recommendations outlined above is that several
pre-1922 statutes can be repealed without replacement. These are:-
Real Property
Act 1845,[278] section 8[279]
Law of Property
Amendment Act 1860,[280]
section 7[281]
Contingent
Remainders Act 1877
[282]
Accumulations
Act 1892[283]
Conveyancing Act
1911,[284]
section 6[285]
Chapter 4
SETTLEMENTS AND TRUSTS OF LAND
4.01
The development of the law relating to settlements and trusts of land
has been a somewhat complicated one.[286] To some extent it belongs to an
earlier era when much land in the country was tied up in family settlements[287]
- and the families were usually English and Scottish settlers granted land
following confiscation from the Irish.[288] A key aspect of the conveyancing
arrangements governing these settlements was that at any particular time the
current “owner” of the land would hold a limited freehold estate only – the fee
tail[289]
or a life estate.[290]
The essential problem about holding an estate less than the fee simple was that
the holder had limited powers of dealing with the land. This was
particularly the case with a life estate, which might end at any time with the
death of the life owner. Such an estate was practically worthless –
effectively it could not be sold, leased or mortgaged as security for
loans. This resulted in much land being withheld from the marketplace and
allowed to deteriorate because the holders had no way of getting themselves out
of financial difficulties. In due course the Irish Parliament and then
the Westminster Parliament intervened, as it had in England and Wales,[291]
through legislation, particularly in the 18th and 19th
centuries. This legislation took several forms.
A
Leasing Powers
4.02
An initial legislative response was to confer on limited owners of land
various powers of leasing the land for specific purposes. This had the
dual purpose of enabling the limited owners to raise much needed income and of
furthering various public purposes. Such purposes usually involved either
the promotion of activities like mining, growing timber and land drainage and
improvement or the building of things like hospitals, schools and
churches. Special statutory leasing powers were also conferred on various
educational and religious bodies.
4.03
Most of the legislation referred to in the previous paragraph remains in
force, but is now obsolete for a number of reasons. One is that, in so
far as it was designed to empower limited owners to lease land, it was
superseded by the more general leasing powers conferred by later legislation,
in particular, the Settled Land Acts 1882-90.[292] This would become even more the
case under the new legislative regime recommended later to replace those Acts.[293]
Another reason is that, in so far as the legislation was designed to promote
specific public purposes, it must have long since served its purpose. To
the extent that such purposes should still be promoted, much more modern and
comprehensive legislation provides for this. For example, mining
activities are now governed by the Minerals Development Acts 1940 and 1979[294]
and forestry is governed by the Forestry Act 1946.
4.04
For the reasons given in the previous paragraph the following
pre-1922 statutes can now be repealed without replacement:-
Ecclesiastical
Lands Act (Ireland) 1634[295]
Mining Leases
Act (Ireland) 1723[296]
Timber Act
(Ireland) 1735[297]
Mining Leases
Act (Ireland) 1741[298]
Mining Leases
Act (Ireland) 1749[299]
Hospitals Act
(Ireland) 1761[300]
Timber Act
(Ireland) 1765[301]
County Hospitals
Act (Ireland) 1765[302]
County Hospitals
Act (Ireland) 1767[303]
Timber Act
(Ireland) 1767[304]
Timber Act
(Ireland) 1775[305]
County Hospitals
Act (Ireland) 1777[306]
Timber Act
(Ireland 1777[307]
Leases for Lives
Act (Ireland) 1777[308]
Leases by
Schools Act (Ireland) 1781[309]
Timber Act
(Ireland) 1783[310]
Leases by
Schools Act (Ireland) 1785[311]
Leases for Corn
Mills Act (Ireland) 1785[312]
Timber Act
(Ireland) 1791[313]
Ecclesiastical
Lands Act (Ireland) 1795[314]
Leases for
Cotton Manufacture Act (Ireland) 1800[315]
Mines (Ireland)
Act 1806[316]
School Sites
(Ireland) Act 1810[317]
Mining Leases
(Ireland) Act 1848[318]
Leases for Mills
(Ireland) Act 1851[319]
Trinity College,
Dublin, Leasing and Perpetuity Act 1851[320]
Leasing Powers
Act for Religious Worship in Ireland Act 1855[321]
Limited Owners
Residences Act 1870[322]
Limited Owners
Residences Act (1870) Amendment Act 1871[323]
Leasing Powers
Amendment Act for Religious Purposes in Ireland Act 1875[324]
Limited Owners
Reservoirs and Water Supply Further Facilities Act 1877[325]
Leases for
Schools (Ireland) Act 1881[326]
B
Landed Estates Court
4.05
During the early part of the 19th century many owners of
large estates were in dire straits, often occupying properties which were
severely run down, heavily mortgaged and threatened by creditors.[327]
In order to give these owners a way out of their difficulties, by authorising
sales of the estates in order to pay off debts, the Westminster Parliament
established in 1849 the Court of Commissioners for the Sale of Incumbered
Estates in Ireland.[328]
This, however, was replaced by the Landed Estates Court established by the Landed
Estates Court (Ireland) 1858.[329] This Court supervised the sale
and break-up of many of the large estates in Ireland during the latter half of
the 19th century.[330]
However, this operation was superseded by two developments which occurred
during the same period.
4.06
One development was, of course, the land purchase scheme introduced by
the British Government to enable Irish tenants to buy out their landlords.[331]
As indicated earlier, this proved in the long run to be a considerable success
and resulted in most agricultural and pastoral land being owned in fee simple
and as registered land.[332]
4.07
The other major development was the introduction, again by the
Westminster Parliament, of legislation designed to give general powers of
disposing of settled land to limited owners. This is considered below,[333]
but first something must be said about the legislation relating to the Landed
Estates Court.
4.08
Since the operation of that Court has long been superseded for the
reasons given above, the time has come to repeal, without replacement, the
legislation relating to it. The pre-1922 statutes in question are:-
Landed Estates
Court (Ireland) Act 1858[334]
Landed Estates
Court (Ireland) Act 1861[335]
C
Settlements Legislation
4.09
The principle of conferring on limited owners general[336] powers of dealing[337] with settled land was introduced
initially in the middle of the 19th century through a series of Settled
Estates Acts.[338]
These Acts[339]
suffered from two major flaws. One was that settlors were free to
contract out of the statutory provisions,[340] thereby defeating their purpose. The
other was that it was necessary to apply to the Court for authorisation to
exercise the statutory powers. Quite apart from the time and expense
involved, the Court would usually insist upon the agreement of all persons
interested in the land as a condition of giving consent.[341] These flaws were met by the Settled
Land Acts 1882-90. However, although those Acts seemed to provide a
comprehensive scheme, some of the earlier legislation was left in force.
It is extremely doubtful whether it had any continuing significance, but it
would certainly not have any purpose under the new scheme recommended below.[342]
4.10
The pre-1882 statutes should be repealed without replacement.
They are:-
Settled Land
(Ireland) Act 1847[343]
Settled Estates
Act 1877[344]
4.11
The Settled Land Acts 1882-90 continue to govern settlements and
trusts of land in Ireland today. Although they were a considerable
improvement on the earlier Settled Estates Acts[345] they were themselves flawed in several
respects. One flaw is the confusing treatment of different methods of
settling land. At least three methods of creating settlements have been
commonly used by conveyancers:[346] (1) settling the land in a succession
of interests without the use of any trust:[347] what is usually referred to as a
“strict settlement”; (2) settling the land on trustees who are required to hold
the land for beneficiaries,[348]
with at most a power (rather than an obligation) to sell the land: what might
be referred to as a “holding” trust; (3) again settling the land on trustees,
but in this instance putting an obligation upon them to sell it (but probably
with a power to postpone sale exercisable at their discretion): this is the
typical “trust for sale”.[349]
Partly as a result of some parliamentary fumbling at Westminster[350]
the way in which the Acts operate varies according to whether the particular
arrangement falls within categories (1) and (2) or category (3). It has
long been the view of practitioners that it would be much simpler to treat all
forms of settlement and trusts of land in the same way, having a single
statutory scheme applicable to all categories.[351]
4.12
Another fundamental flaw of the 1882-90 Acts is that they involve
detailed provisions conferring various powers on limited owners. These
powers are in some cases of restricted scope and are often hedged around by
various conditions relating to their exercise.[352] Often it is found that they do
not cover a transaction which may be important, if not vital, to a particular
person interested under the trust or settlement; for example, purchasing a
property as a home for a beneficiary rather than as an investment. Again
it has long been the view that it would make for a much simpler scheme to
reverse the approach of the 1882-90 Acts, by providing that all settlements of
land should involve vesting the land in trustees and conferring on them full
powers of dealing with the land. In essence the trustees should have the
powers of an absolute owner, except, of course, that this would be subject to
the vital qualification that they are trustees and, therefore, subject to the
principles of the law of trusts.
4.13
A new statutory scheme such as that outlined in the previous paragraphs
was, in fact, proposed for the North as long ago as 1971.[353] It was reiterated by the Land Law
Working Group in its 1990 Final Report.[354] Although not yet implemented
there a similar scheme, involving all forms of settlements operating as a trust
of land, with the trustees having the powers of dealing with it of an absolute
owner, was introduced to England and Wales by the Trusts of Land and
Appointment of Trustees Act 1996.[355] It is recommended that a similar
scheme be included in the new legislation.
4.14
The Commission
provisionally recommends that a new scheme involving all forms of settlements
operating as a trust of land, with the trustees having the powers of dealing
with it of an absolute owner should be introduced.
D
New Statutory Scheme
4.15
It may be helpful at this stage to outline in more detail what it is
envisaged would be the salient features of the new statutory scheme.
Although there are useful precedents in the North’s proposals and in the
English 1996 Act,[356]
it does not follow that all the details of those should be followed.
(1)
Trusts of Land
4.16
Under the new scheme all forms of settlement and trusts of land should
fall within the single “trust of land” scheme set out in the new
legislation. It would, therefore, encompass all the categories referred
to earlier.[357]
It would also cover, as do the 1882-90 Acts, cases where land is vested in a
minor,[358]
but not other cases of incapacity.[359] The definition of a settlement, involving
a succession of interests in land, in the 1882-90 Acts should generally be
followed, but the opportunity should be taken to clarify certain matters.
4.17
It was recommended earlier that there seems to be no good reason for
imposing on parties the paraphernalia of the statutory scheme where a modified
fee simple is vested, without any limitations over in favour of other
successive parties.[360]
The holder of such a modified fee would continue, therefore, to hold the legal
title to the land, rather than under trustees in whom that title would be
vested.[361]
It is recommended that the same rule should apply in other cases where a person
holds the substantial (fee simple) interest in the land subject only to minor
interests or charges, such as an annuity in favour of someone else. As
regards the very common practice of vesting land subject to a right of
residence,[362]
it is recommended that the distinction drawn for registered land[363]
should apply generally under the new statutory scheme. Thus the new
scheme imposing a trust would apply only where the right of residence is
exclusive[364]
and relates to the whole[365]
of the land in question.[366]
Finally, the new statutory scheme should not apply to land held for charitable
or other public purposes. This is currently the subject of a separate
review.
4.18
The Commission
provisionally recommends that the holder of a modified fee that is vested,
without any limitations over in favour of other successive parties, should continue
to hold the legal title to the land, rather than under trustees in whom that
title would be vested. It is recommended that the same rule should apply
in other cases where a person holds the substantial (fee simple) interest in
the land subject only to minor interests or charges, such as an annuity in
favour of someone else. The new scheme would also apply only where a
right of residence is exclusive and relates to the whole of the land in
question. The new statutory scheme should not apply to land held for
charitable or other public purposes.
(2)
The Trustees
4.19
It is standard practice for deeds or wills creating settlements[367]
and trusts of land to specify who are the trustees and this should continue
under the new scheme. The new legislation should, however, provide a
“fall-back” provision in case no such express nomination is made in a
particular case. The general rule in the 1882-90 Acts that at least two trustees
should act should probably be retained,[368] but the Commission wishes to reserve it
position on this point. The Commission is currently reviewing the issue
of trusteeship as part of its Trust Law Project.
4.20
The Commission
provisionally recommends that the new legislation should provide a “fall-back”
provision in case no express nomination of trustees is made in a particular
case.
(3)
Trustee Powers
4.21
As indicated earlier, a key feature of the recommended new
statutory scheme would be that the trustees would have the full power of
dealing with the land that an absolute (as opposed to a limited) owner has.[369]
This should, however, be regarded as essentially a “default” position, so that,
in accordance with the general law of trusts, it should be open to a settlor to
impose restrictions on those powers in a particular case.[370] The trustees should be obliged to
consider the interests of the beneficiaries in exercising their powers, to
consult particular beneficiaries where the exercise affects them directly, but
should not be required to obtain consent to particular actions unless the settlor
required this.[371]
To some extent this raises issues relating to the law of trusts generally and
these should be left for further consideration in the context of the separate
project on this subject being carried out by the Commission. This applies
particularly to issues such as how far the trustees should have power to
delegate functions to beneficiaries and their powers of investment.
4.22
The Commission
provisionally recommends that a key feature of the recommended new statutory
scheme should be that the trustees would have the full power of dealing with
the land that an absolute (as opposed to a limited) owner has. This
should, however, be regarded as essentially a “default” position, so that, in
accordance with the general law of trusts, it should be open to a settlor to
impose restrictions on those powers in a particular case. The trustees should
be obliged to consider the interests of the beneficiaries in exercising their
powers.
(4)
Protection of Third Parties
4.23
The new statutory scheme should contain very clear provisions concerning
the position of third parties dealing with the trustees in the exercise of
their powers. Generally in the absence of fraud or other improper
conduct, such as participating in a breach of trust or having actual knowledge
of such a breach, a purchaser from the trustees should be protected.[372]
In particular it should be made clear that a purchaser is not expected to
enquire into the actions of the trustees and should be entitled to assume that
they are acting properly, similar to the provision governing personal
representatives in section 61 of the Succession Act 1965.
4.24
The Commission
provisionally recommends that the new statutory scheme should contain very
clear provisions concerning the position of third parties dealing with the
trustees in exercise of their powers. Generally, in the absence of fraud
or other improper conduct, a purchaser from the trustees should be protected.
(5)
Disputes
4.25
The new statutory scheme should contain an effective mechanism for
resolution of disputes between the beneficiaries and trustees. The most
appropriate method would seem to be to permit any person interested in the
trust and the trust land, including both the trustees and the beneficiaries, to
apply to the court for an appropriate order to resolve the dispute. The
legislation should give the court general guidance as to the factors to be
taken into consideration, such as the purpose of the trust, the interests of
the respective beneficiaries (both present and future) and of creditors of
beneficiaries.[373]
Subject to this, the court should be given the broadest discretion to make what
it thinks is the most appropriate order in all the circumstances of the case.[374]
4.26
The Commission
provisionally recommends that the new statutory scheme should contain an
effective mechanism for resolution of disputes between the beneficiaries and
trustees. The most appropriate method would be to permit any person
interested in the trust and the trust land, including both the trustees and the
beneficiaries, to apply to the court for an appropriate order to resolve the
dispute.
(6)
Pre-1922 Statutes
4.27
A consequence of enactment of the proposed new statutory scheme would
be that the following pre-1922 statutes would be replaced with substantial
amendment:-
Settled Land Act
1882[375]
Settled Land Act
1884[376]
Settled Land
Acts (Amendment) Act 1887[377]
Settled Land Act
1889[378]
Settled Land Act
1890[379]
Conveyancing Act
1911, section 10.[380]
Chapter 5
POWERS OF APPOINTMENT
5.01
Powers of appointment are commonly inserted in deeds and wills creating
settlements and trusts.[381]
Essentially, instead of the settlor allocating property directly to specified
beneficiaries, a power is conferred on a person (the donee[382] of the power or appointor) to “appoint”
(ie select) from a group of persons (the objects of the power) those who
should be allocated the property (the appointees) and in what shares.[383]
This subject,[384]
which is fairly technical, is relatively uncontroversial, but it requires
consideration because there are several pre-1922 statutes which bear on the
subject.
A
Illusory Appointments Act 1830[385]
5.02
This Act was enacted to deal with confusion which had arisen from the
courts’ attempt to regulate the exercise of powers of appointment.[386]
In the case of a “non-exclusive” power (ie where the settlor had made it
clear that each object of the power should be allocated at least some property
by the donee), the courts were concerned that the donee might attempt to thwart
the settlor’s wishes by cutting off a particular object “with a shilling”,[387]
hence the expression “illusory appointment”.[388] What the Act does is to clarify
matters by providing that the appointment of a nominal sum is not to invalidate
the exercise of a power of appointment.
5.03
Arguably the 1830 Act was rendered redundant by a later Act, the Powers
of Appointment Act 1874 and that what is needed in the new legislation is a
consolidating provision which encapsulates the substance of both Acts.
This is what was included in the English Law of Property Act, 1925.[389]
B
Powers of Appointment Act 1874[390]
5.04
This Act provided that every power of appointment should be presumed to
be an exclusive power[391]
with the result that the donee has a complete discretion whether to make any
appointment at all in favour of any particular object, never mind making an
illusory appointment. As the leading English authority on the subject put
it: “The Act of 1830 enabled an appointor to cut off any object of
the power with a shilling; the Act of 1874 enables him to cut off the shilling
also.”[392]
As indicated earlier, what is needed is a provision to consolidate the
effect of the 1830 and 1874 Acts. A precedent for this can be found in
section 158 of the Law of Property Act 1925. This reads:
“(1)
No appointment made in exercise of any power to appoint among two or more
objects is invalid on the grounds that:-
(a)
an insubstantial, illusory or nominal share only is appointed to or left
unappointed to devolve upon any one or more objects of the power; or
(b)
any object of the power is thereby altogether excluded;
But every such
appointment is valid, notwithstanding that any one or more of the objects is
thereby, or in default of appointment, to take any share in the property.
(2)
This section does not affect any provision in the instrument creating the power
which declares the amount of any share from which any object of the power is
not to be excluded.”
The result of these recommendations
would be that the Illusory Appointments Act 1830 and the Powers of
Appointment Act 1874 would be replaced without substantial amendment.
5.05
The Commission
provisionally recommends that the Illusory
Appointments Act 1830 and the Powers of Appointment Act 1874 should
be replaced without substantial amendment.
C
Law of Property Amendment Act 1859,[393] Section 12
5.06
Section 12 of this Act deals with how the donee of a non-testamentary
power of appointment (ie one which must be exercised by the donee while
still alive and not by will coming into force on the donee’s death) should
execute the power.[394]
The section is concerned with the mechanics of execution of the instrument and
has an odd feature. Testamentary powers are governed by section 79 of the
Succession Act 1965, which simply provides that the donee need comply
only with the usual requirements for execution of a valid will. On the
other hand, section 12 requires that the donee of a non-testamentary power must
meet requirements which are not strictly necessary for execution of a deed, for
example attestation by two or more witnesses. It is difficult to justify
this distinction and so it is recommended that section 12 should be replaced
with an equivalent of section 29 of the 1965 Act ie a donee of a
non-testamentary power should only have to meet the requirements for valid
execution of a deed.[395]
The result would be that section 12 of the 1859 Act would be replaced with
substantial amendment.
5.07
The Commission
provisionally recommends that a donee of a non-testamentary power should only
have to meet the requirements for valid execution of a deed.
D
Conveyancing Act 1881,[396] Section 52
5.08
This section was designed to overrule the common law principle that a
power “simply collateral” (ie where the donee has no interest in the
property to which the power of appointment relates) could not be released (ie
given up).[397]
It confers a general right of release for any power, whether collateral or
general. However, notwithstanding its wide wording, it is very doubtful
whether it applies to a power “in the nature of a trust”, because this would
cause a divesting of the interests which objects of such powers are deemed to
have, until an appointment is made which results in such divesting.[398]
Furthermore it may be doubted whether it applies to “fiduciary” powers, because
a release would be inconsistent with the fiduciary duty owed by the donee in
such cases.[399]
The replacement of section 52 in the new legislation should include an express
exception of powers in the nature of a trust and fiduciary powers. The
result would be that section 52 of the 1881 Act would be replaced without
substantial amendment.
5.09
The Commission provisionally recommends that section 52 of the Conveyancing
Act 1881 should be replaced without substantial amendment, subject to the
inclusion of an express exception of powers in the nature of a trust and
fiduciary powers.
E
Conveyancing Act 1882[400] Section 6
5.10
This section confers a general right on donees of powers of appointment
to disclaim the power, ie refuse to accept it in the first place.
Such a disclaimer does not necessarily destroy the power, for there may be
other donees who do not disclaim.[401] This is an uncontroversial
provision[402]
which should be replaced without substantial amendment.
5.11
The Commission
provisionally recommends that the general right of donees of powers of appointment
to disclaim the power under section 6 of the Conveyancing Act 1882 should be replaced without
substantial amendment.
6.
Chapter 6
CO-OWNERSHIP
6.01
This chapter deals with the law of co-ownership, ie where several
persons or bodies own estates or interests in land concurrently.[403]
Such arrangements are very common, but the law relating to them is somewhat
complex. Several matters require consideration, including a number of
pre-1922 statutes.
A
Fragmentation of the Legal Title
6.02
One of the major changes to the law introduced in England and Wales was
the prohibition by the Law of Property Act 1925 on creation of legal
tenancies in common.[404]
The point about a tenancy in common, as opposed to a joint tenancy,[405]
is that there is no “right of survivorship” whereby, on the death of one
co-owner, the deceased’s interest in the land passes automatically to the
surviving co-owner or co-owners. In the case of a tenancy in common each
owner is regarded as have a distinct, albeit undivided, share in the land,
which can be left by will to whomever the owner wishes. The result is
that over time the legal ownership of the property may become more and more
fragmented, as tenants in common die and leave their shares to a large group of
people (eg children), who then, in turn, do the same. The result
may be that over a couple of generations the legal ownership of the property
becomes split between dozens, perhaps even, in the extreme cases, hundreds of
people. This renders the carrying out of transactions with the land
extremely complex, as all these people have to be traced in order that they can
sign the necessary documents, such as the contract for sale and deed of
conveyance. The English Law of Property Act 1925 aimed to resolve
this by providing that in future the legal title to co-owned land should always
be vested in trustees as joint tenants and that any tenancy in common would
exist only in respect of the equitable or beneficial interest.
6.03
The Commission recently considered this matter and resolved not to
recommend similar provisions here.[406] One reason was that the evidence
of practitioners indicated that the sort of conveyancing problems mentioned in
the previous paragraph do not arise in practice. Another reason is that
it would involve a considerable interference with the freedom of parties to
devise their method of holding land. This is a point of some substance
nowadays as it is very common for large groups of investors to acquire
commercial property and to hold it as co-owners, invariably as tenants in
common. The view of practitioners experienced in such transactions is
that it would not be acceptable to many such investors to have the legal title
to the property vested in a limited number of them only.
6.04
Apart from such considerations, the English provisions have proved to be
one of the most controversial aspects of the 1925 legislation. Particular
problems were created by the form of trust imposed by the Law of Property
Act 1925, which was a trust for sale.[407] Such a trust, which involves an
obligation to sell the land at the earliest opportunity, was inconsistent with
some of the most common examples of co-ownership, for example, where a married couple
purchase their matrimonial home, which they naturally intend to keep for some
time. This aspect of the 1925 Act was not altered until the enactment of
the Trusts of Land and Appointment of Trustees Act 1996.[408]
6.05
The Commission provisionally recommends that there should be no
prohibition on the creation of legal tenancies in common.
B
Severance
6.06
One of the most important aspects of the law of co-ownership is the
concept of severance of a joint tenancy.[409] This is the process whereby a
joint tenancy is converted into a tenancy in common. If this occurs, it
has considerable significance for the joint tenants, because it means that the
right of survivorship[410]
no longer exists. They, therefore, lose the expectation that one of them
will end up as sole owner of the entire land, being the last surviving joint
tenant.
6.07
The Commission has again considered this subject in recent times and
made recommendations which should be implemented in the new legislation.
One is that the methods of bringing about the severance should be simplified.[411]
Another is a more radical proposal, which is that it should no longer be open
to a joint tenant to sever the joint tenancy unilaterally, ie without
the consent of the other joint tenants.[412] In its Consultation Paper on
Judgment Mortgages[413] it was recommended that registration of a judgment
mortgage against the interest of a joint tenant should no longer effect a
severance.[414]
6.08
The Commission also considered recently a related matter, commorientes, ie
where joint tenants suffer “simultaneous” deaths in some disaster like a car
accident or aircraft crash.[415]
Often it is impossible to tell in such cases which of them died first, so as to
determine which was the survivor taking the entire land. It was
considered that the current rule enshrined in section 5 of the Succession
Act 1965, based on the common law,[416] that in such cases they should be
deemed to have died simultaneously, often produced unsatisfactory
results. It was recommended that, where the circumstances surrounding the
death of joint tenants renders it uncertain which was the survivor, this should
effect a severance and the land should be deemed at that point to be held on a
tenancy in common and to pass to their respective successors at such.[417]
This should be implemented in the new legislation.
6.09
The Commission
provisionally recommends that its previous recommendations relating to the
severance of joint tenancies and commorientes should be implemented.
C
Partition
6.10
Partition is a process whereby co-owners[418] can put an end to the co-ownership, ie,
the land is partitioned (divided up) amongst the co-owners so that they
thereafter each own a part of the land as sole owner. Problems often
arise either because the parties cannot agree to partition or, if they agree in
principle, cannot agree as to how it should be done, or because it is not
feasible or practicable to partition the land physically, for example, a single
house amongst four co-owners. It was to resolve these sorts of problems
that legislation was introduced, essentially to enable any co-owner to obtain a
court order for partition.[419]
The current law is largely contained in the Partition Acts 1868[420]
and 1876,[421]
the most important feature of which is the court’s power to order a sale of the
land, with division of the proceeds of sale amongst the co-owners, instead of a
physical division of the land.
6.11
The Partition Acts are widely used, but their provisions are
somewhat complex and hedged with dubious conditions.[422] There is considerable scope for their
simplication in the new legislation and precedents exist in the North’s
proposals[423]
and English legislation.[424]
The Commission has also recommended that the Acts should no longer apply to
judgment mortgages[425]
and judgment creditors should be covered by new legislation dealing with
judgment mortgages generally.[426] The result would be that the
Partition Acts 1868 and 1876 would be replaced with substantial
amendment.
6.12
The Commission
provisionally recommends that the Partition
Acts 1868 and 1876 should be replaced with substantial amendment with
a view to their simplification, and that the Acts should no longer apply to
judgment mortgages.
D
Accounts
6.13
It is not uncommon for one co-owner to enjoy more out of the land than
another co-owner, for example, sole occupation of a house which is
co-owned. At common law it was not possible for one co-owner to bring an
action of account against another, to seek an adjustment to take account of
such situations.[427]
Such a right was conferred by section 23 of the Administration of Justice
Act (Ireland) 1707.[428]
This is an important provision, so that section 23 of the 1707 Act should be
replaced without substantial amendment in the new legislation.
6.14
The Commission
provisionally recommends that section 23 of the Administration of Justice Act
(Ireland) 1707 should be replaced without substantial amendment in the new
legislation.
E
Bodies Corporate
6.15
The Bodies Corporate (Joint Tenancy) Act, 1899[429] was enacted to enable corporate bodies,
like banks and other financial institutions, to hold property in a joint
tenancy with others, for example, as trustees.[430] This has had considerable
practical significance and so the 1899 Act should be replaced without
substantial amendment in the new legislation.
6.16
The Commission provisionally recommends that the Bodies Corporate
(Joint Tenancy) Act 1899 should be replaced without substantial amendment.
F
Equitable Co-owners
6.17
One of the most controversial areas of land law and conveyancing law in
recent decades has been the courts’ willingness to hold that a person has
acquired informally an equitable interest in land, the legal title to which is
vested in someone else.[431] The development of the judicial basis for this has been a
somewhat tortuous one throughout the common law world.[432] Particular problems are created
in the conveyancing context where the holder of the equitable interest is also
in occupation of the property. In such instances it may be held that a
purchaser[433]
of the land, who deals with the legal owner only, may nevertheless be held
bound by the “hidden” equitable interest.[434]
6.18
This difficult area was the subject of a recent review by the Commission
relating to the rights and duties of co-habitees.[435] The Commission concluded that it
was not appropriate to recommend legislation making provisions for (1) a
reformed version of the purchase money resulting trust[436] (2) a community property regime[437]
or (3) extension of the Family Home Protection Act 1976 to qualified
co-habitees.[438]
Instead, it recommended that qualified co-habitees should be able to apply to
the court for property adjustment orders in exceptional circumstances, within
one year of the relationship breaking down.[439] It would not be appropriate to
revisit such matters in this Consultation Paper.
6.19
There is, however, one aspect of this subject which is of particular
significance to the subject of this Consultation Paper. That is the
conveyancing problem raised earlier.[440] The problem for conveyancers is
that the beneficial interests, however they arise, are often “hidden”, and it
is often unrealistic to expect purchasers, still less lending institutions, to
discover all those claimants of such interests who might be in occupation of
land. It is recommended, therefore, that in future any such claim should
be unenforceable against a purchaser or mortgagee of the land[441]
unless it has been protected by prior registration in the Land Registry or
Registry of Deeds, as appropriate. Such a recommendation has already been
made in Northern Ireland.[442]
6.20
The Commission
provisionally recommends that in future any claim to an equitable interest in
land should be unenforceable against a purchaser or mortgagee of the land
unless it has been protected by prior registration in the Land Registry or
Registry of Deeds, as appropriate.
G
Common Rights
6.21
It is a frequent occurrence in rural areas, particularly in the Western
counties, to have remote bog and grazing land on hills and mountains held by
numerous co-owners. The Land Commission was given power to authorise
partition of such “commonages” by section 39 of the Land Act 1939,[443]
but many still exist. The Commons Acts (Ireland) 1789[444]
and 1791[445]
prohibited the commission of waste on common land and it is recommended that
these Acts be replaced without substantial amendment in the new legislation.
6.22
The Commission
provisionally recommends that the Commons
Acts (Ireland) 1789 and 1791 should be replaced without substantial
amendment in the new legislation.
H
Party Structures and Boundaries
6.23
Although not necessarily strictly involving forms of co-ownership of
land,[446]
there are two related matters which merit consideration. One is the
regulation of neighbouring parties’ rights in respect of a party wall or other
structure dividing their respective properties. This can be a source of
much dispute and an attempt at statutory regulation was contained in the,
rarely noticed Boundaries Act (Ireland) 1721.[447] The new legislation should
contain a modern version of this and a recent precedent exists in England.[448]
The 1721 Act would then be replaced with substantial amendment.
6.24
The Commission provisionally recommends that the new legislation
should contain a modern version of the Boundaries Act (Ireland) 1721
dealing with neighbouring parties’ rights in respect of party walls or other
structures dividing their respective properties.
6.25
Another frequent source of dispute between neighbouring owners arises
where buildings are built so close to the boundary line between their
properties that the only means of access (which may be necessary in order, for
example, to carry out repairs and maintenance) is from the neighbour’s
property. Legislation to resolve such disputes, enabling a landowner to
obtain a court “access” order, is recommended. Again a precedent exists
in England.[449]
6.26
The Commission provisionally
recommends that legislation should be enacted to resolve disputes between
neighbouring owners by enabling an owner to obtain a court “access” order where
appropriate.
7.
Chapter 7
APPURTENANT RIGHTS
7.01
This Chapter is concerned with “appurtenant” rights, ie, rights
which do not confer substantial ownership in the sense of an estate in the
land,[450]
but rather some minor right usually[451] exercisable over a neighbour’s
land. Indeed, it is common for neighbouring landowners to have such
rights over each other’s land. The rights recognised by our legal system
fall into two broad categories.
7.02
One very broad category is that known as “incorporeal hereditaments”.[452]
This comprises some very common rights, such as easements (eg a right of
way) and profits ŕ prendre (eg a right to fish or to cut turf).[453]
It also comprises some less common rights, such as rentcharges,[454]
and some which have become obsolete, such as tithe rentcharges[455]
and advowsons.[456]
These are discussed below.
7.03
The other category, which is also very common, is freehold covenants
relating to land. Whenever a landowner sells off part of the land,[457]
or sub-divides the land,[458]
it is usual to impose various covenants on the purchasers of the parts sold
off. These may be restrictive or negative in nature (eg
restricting the future use of the parts sold off to private residential
purposes) or positive (eg requiring maintenance and repair of boundary
walls and fences). Since these covenants are being imposed on freehold as
opposed to leasehold[459]
owners, the intention usually is that they will bind successors in title
indefinitely. However, the law relating to freehold covenants has never
developed properly and is subject to serious flaws.[460] The most serious of these are
that, first, the burden of a positive covenant does not “run with the land” (ie
bind a successor in title to the original covenantor) and, secondly, the burden
of negative covenants runs in equity only,[461] so that the person entitled to enforce
the covenant (the original covenantee or a successor in title) does not have a
legal right. This has important practical significance, because,
generally speaking,[462]
equitable rights are more vulnerable than legal ones,[463] and may turn out to be unenforceable
against a successor in title.[464] This is an area of the law which
has long needed major reform.[465]
7.04
It may be convenient to begin with incorporeal hereditaments and to
dispose, first of all, of those which are obsolete or no longer of practical
significance. This is relevant in the context of pre-1922 statutes.
A
Tithe Rentcharges
7.05
The history of these, which stem from the “tithe”, which was the right
of the “established” church to one tenth of the produce of land in each parish,
has been a long and complicated one.[466] Tithes in kind were later
substituted by money compositions charged on land, which in turn were replaced
by tithe rentcharges payable into the Church Temporalities Fund created after
disestablishment of the Church of Ireland by the Irish Church Act 1869.
An apportioned part of that fund became vested in the State, but section 7 of
the Land Act 1984 extinguished all remaining tithe rentcharges payable
into the Fund and dissolved the Fund, which was to be paid into, or disposed
of, for the benefit of the Exchequer.
7.06
The Commission provisionally recommends that the pre-1922 statutes
relating to tithe rentcharges still in force[467]
can now be repealed without replacement. These are:-
Tithes Act 1835[468]
Tithe Rentcharge
(Ireland) Act 1838[469]
Tithe Arrears (Ireland)
Act 1839[470]
Tithe Rentcharge
(Ireland) Act 1848[471]
7.07
In passing it may be noted that the Irish Church Act 1869[472]
abolished another incorporeal hereditament connected with the established
church. This was an advowson, which was the right of a landowner to
nominate a clergyman to an ecclesiastical “living”, ie as the rector or
vicar of the local church.[473]
B
Former Crown Rents and Similar Rights
7.08
On its establishment the State inherited the right to receive various
rents issuing out of land in Ireland and previously payable to the British
Crown. Most of these rents were redeemed under the land purchase scheme,[474]
but some did survive and, although comprising miniscule amounts, were collected
on behalf of the State by the Land Commission and accounted for to the
Department of Finance.[475]
There were various categories, such as: (1) Crown rents reserved in feudal
grants of land;[476]
(2) “quit” rents reserved in 17th century grants made to English and
Scottish settlers following confiscation of Irish land;[477] (3) composition rents reserved in
the compositions entered into by the Lords and Chieftains of Connaught and
Thomond during the reign of Elizabeth I. However, in exercise of power
conferred by section 12 of the State Property Act 1954, the Minister for
Finance waived the payment of these rents and released the lands from them, as
from 29 September 1975.[478]
As a result the Plus Lands Act (Ireland) 1703[479] can be repealed without replacement.[480]
7.09
The Commission provisionally recommends that the Plus Lands Act
(Ireland) 1703 should be repealed without replacement.
7.10
In passing it may be noted that other former Crown rights may survive,
such as the right to grant “franchises”,[481] but in so far as these were part of the
Crown prerogatives it must be doubted now whether the State can invoke the
right to grant such.[482]
This is even more clearly so with respect to the former Crown right to confer
titles of honour and special offices.[483]
C
Rentcharges
7.11
Rentcharges, to be distinguished from leasehold rents,[484]
are relatively rare nowadays.[485] In the past they have taken
various forms, such as under a fee farm grant not creating the relationship of
landlord and tenant[486]
or as part of a settlement of land where they are used to provide income or an
annuity for members of the family who are not given a substantial estate or
interest in the land.[487]
The continued creation of such non-statutory rentcharges is of questionable
value nowadays, particularly in the light of the confusion with leasehold
arrangements. Apparently such rentcharges are rarely, if ever, used as
part of modern settlement and trust arrangements.[488] It is, therefore, recommended
that the future creation of such rentcharges be prohibited. This
recommendation is not intended to affect statutory rentcharges, many of which
have been created in the past, eg, in relation to land drainage and
improvement schemes promoted under the Landed Property Improvement (Ireland)
Act 1847.[489]
7.12
The Commission
provisionally recommends that the future creation of rentcharges should be
prohibited, but without prejudice to statutory rentcharges.
7.13
As regards existing rentcharges, various, somewhat unsatisfactory,
pre-1922 statutory provisions exist for their redemption or discharge.[490]
These are:-
Chief
Rents Redemption (Ireland) 1864:[491] This Act is a somewhat odd
statute. The short title refers to “chief rents”, the preamble refers to
land subject to “any rent” and section 1 (the explanation of terms used in the
Act) refers to land held in fee farm, for lives renewable for ever or for any
term whereof more than 200 years remain unexpired! Apart from doubts as
to its scope,[492]
the function of the Act seems pointless, since apparently it applies only if
the parties agree on redemption.[493] There appears to be no provision
whereby the landowner paying the rent can force the rent owner to submit to redemption.
The Act has long been a dead letter[494] and a more effective statutory scheme
for redemption of rents should be created. It was recommended earlier in
the context of fee farm grants that consideration should be given to extending
the post-1922 grounds rents scheme.[495] Meanwhile the 1864 Act can be
repealed without replacement.
Conveyancing
Acts 1881[496] and 1911:[497] Section 5 of the 1881 Act, as
amended by section 1 of the 1911 Act, is a somewhat obscure provision, which
seems to have been used in the past to secure a discharge of rentcharges.[498]
It relates to “an annual sum charged on land”, which presumably would cover a
rentcharge.[499]
It does not seem to have been used in modern times and also suffers from the
flaw of requiring an application to the court. It should be repealed
without replacement.
7.14
The Commission
provisionally recommends that the Chief Rents Redemption Act (Ireland) 1864 and section 5
of the Conveyancing Act 1881 as amended by section 1 of the Conveyancing
Act 1911 should be repealed without replacement.
7.15
There are several other pre-1922 statutory provisions relating to
rentcharges which merit consideration. These are:-
Law
of Property Amendment Act 1859[500]: Section 10 of this Act
reversed the common law rule[501]
that a partial release of a rentcharge operated to release the entire
land and thereby extinguished the rentcharge. This seems uncontroversial,
except that it should be made more explicit that when there is a partial
release, the amount of the rentcharge not released remains charged on the
entire land, unless the parties agree to apportion it to part only of that
land.[502]
Subject to that section 10 should be replaced without substantial
amendment. Section 28 of the 1859 Act relates to chief rents and
rentcharges and is designed to protect personal representatives from personal
liability when they dispose of or distribute the deceased’s land subject to
payment of such a rent. This is similar to section 27 of the Act which
covers land subject to leasehold rents.[503] A more general provision
providing protection for personal representatives in distribution of the
deceased’s personal estate was contained in section 29 of the 1859 Act,
but section 29 was repealed by the Succession Act 1965. There is
now a replacement provision in section 49 of the 1965 Act.[504] It would have been more
appropriate if sections 27 and 28 of the 1859 had also been replaced and
subsumed in the 1965 Act. It is recommended that this should be done now,
so that the sections can be replaced without substantial amendment.
Conveyancing
Acts 1881[505] and 1911[506]: Section 44 of the 1881 Act contains various statutory remedies
for enforcing rentcharges. One of them, the right of distress,[507]
has ceased to be of practical significance in modern times.[508] It was abolished in respect of
rents relating to any premises let solely as a dwelling by section 19 of Housing
(Miscellaneous Provisions) Act 1992 and the Commission’s Landlord and
Tenant Group is considering whether it should be abolished altogether.[509]
Subject to that, section 44 should be replaced without substantial amendment.
On the other hand, section 6 of the 1911 Act, which provided that the remedies
in section 44 were not subject to the rule against perpetuities, would become
redundant with the recommendation, noted earlier,[510] that this rule should be abolished.
7.16
The Commission
provisionally recommends that:
(i) section 10 of the Law of Property Amendment Act
1859 should be replaced without substantial amendment subject to the
recommendation that it should be made explicit that where a rentcharge is
partially released, the amount not released remains charged on the entire land,
unless it is apportioned to part of the land only by the parties;
(ii) sections 27 and 28 of the Law of Property Amendment Act
1859 should be replaced without substantial amendment so as to allow
personal representatives to be protected in the distribution of a deceased’s
land subject to the payment of a rent;
(iii) the provisions of section 44 of the Conveyancing Act 1881 should
be replaced without substantial amendment subject to deletion of references to
the right of distress. The Commission also recommends the repeal of section 6
of the Conveyancing Act 1911 without replacement.
D
Easements and Profits
7.17
Easements and profits ŕ prendre are extremely common rights over
land,[511]
but the law relating to them, especially their methods of acquisition,[512] is extremely complex and in need of reform.[513]
(1)
Prescription
7.18
The law relating to acquisition of easements and profits by prescription
(ie long user) is extremely confusing and complicated. This whole
area was reviewed recently by the Law Reform Commission and its Report contains
recommendations for a radical overhaul designed to simplify the law greatly.[514]
The new legislation should implement those recommendations.[515] A result of this is that the Prescription
Act 1832[516]
and the Prescription (Ireland) Act 1858[517] would be replaced with substantial
amendment
7.19
The Commission
provisionally recommends that the Report
on the Acquisition of Easements and Profits ŕ Prendre by Prescription (LRC
66-2002) should be implemented and that the Prescription Act 1832 and
the Prescription (Ireland) Act 1858 should be replaced with substantial
amendment.
(2)
Express Grants and Reservations
7.20
An earlier Report of the Commission recommended that an anomaly relating
to the express creation or transfer of easements appurtenant to registered
land, where, contrary to the general rule relating to registered land,[518]
it would appear that “words of limitation” must still be used in the deed,[519]
should be removed.[520]
This recommendation should be incorporated in the general recommendation made
later for total abolition of the need for words of limitation in deeds of land.[521] The special provision in section 62 of the Conveyancing
Act 1881 designed to enable the Statute of Uses (Ireland) 1634 to be
used for reservations of easements and profits in favour of land retained by a
grantor who disposes of part of land will no longer be needed. Chapter 8
deals with conveyances generally and the recommendations there include removal
of the need for conveyances “to uses” altogether and repeal of the 1634
Statute.[522]
This would also remove the need for a provision such as that contained in
section 62 of the 1881 Act.[523]
7.21
The Commission
provisionally recommends that the requirement that words of limitation be used
upon the express creation or express transfer of easements appurtenant to
registered land should be removed as part of the general removal of the need
for words of limitation in deeds generally.
(3)
Implied Grants and Reservations
7.22
This is another very complicated area of the law, especially that
relating to implied grant, ie, where a grantee of land claims that,
despite the absence of any reference in the deed conveying or transferring the
land to an easement or profit passing with the land,[524] such an easement or profit should be
taken to have passed by implication.[525] The law governing this subject is
largely based upon the Rule in Wheeldon v Burrows,[526] but the principles laid down in that
case are confusing and have given rise to much controversy.[527] There is much to be said for
abandoning this rule and basing the law, instead, on the wider principle which
is often said to be the basis of the rule,[528] the doctrine of non-derogation from
grant, ie, that once a grantor has conveyed or transferred land to someone
else (the grantee), the grantor must not seek to frustrate the grantee in the
reasonable enjoyment of the land anticipated when the conveyance or transfer
was agreed. The Supreme Court has very recently approved of the
non-derogation doctrine in the context of a claim to an easement in the case of
William Bennett Construction Ltd v Greene.[529] On this basis it is recommended
that the Rule in Wheeldon v Burrows be abolished and that, in future, a
claim to an easement or profit by way of implied grant should be based solely
on the doctrine of non-derogation from grant.[530] Following the various judicial
formulations given over the years,[531] it is recommended that the legislation
should give a statutory formulation of the doctrine along the following lines:
“there should be implied in favour of a grantee of land any easement or profit
ŕ prendre which it is reasonable to assume, in all the circumstances of the
case, would have been within the contemplation of the parties as being included
in the grant, had they adverted to the matter.”
7.23
The Commission
provisionally recommends that the rule in Wheeldon v Burrows should be abolished and that,
in future, a claim to an easement or profit by way of implied grant should be
based solely on the doctrine of non-derogation from grant. The
legislation should provide that there should be implied, in favour of a grantee
of land, any easement or profit ŕ prendre which it is reasonable to
assume, in all the circumstances of the case, would have been within the
contemplation of the parties as being included in the grant, had they adverted
to the matter.
7.24
Connected with the subject of implied grant of easements is section 6 of
the Conveyancing Act 1881. This is a section of broad scope,[532]
which is often invoked by a grantee who is claiming that an easement or profit
has passed by implication.[533]
There are, however, two troublesome aspects as to how the section’s operation
in the context of easements and profits has been interpreted by the courts.
7.25
One controversial matter is whether the section applies only to pass
existing easements and profits (which arguably is what its wording suggests) or
whether it can convert or enlarge rights or quasi-rights into full easements or
profits. This point arises in the typical Wheeldon v Burrows
situation,[534]
where the owner of a large parcel of land (who clearly, so long as the land
remains in that owner’s sole ownership, cannot have rights like easements or
profits against the owner’s self) sells part of the land to someone else, who
then claims by implication an easement or profit over the land retained.
As it is sometimes put, the issue is whether there must have been diversity of
ownership or occupation prior to the conveyance to which it is sought to apply
section 6.[535]
Until recently there was no Irish authority on the point and conflicting views
had been given by the English courts,[536] but the predominant view now seems to
be that prior diversity of ownership or occupation is a prerequisite to
application of the section. This was certainly the view of some of the
law lords in Sovmots Investments Ltd v Secretary of State for the
Environment.[537]
The Supreme Court agreed with this view in the recent William Bennett
Construction Ltd case[538]
and it is recommended that this qualification on the operation of section 6 in
the context of easements and profits should be made explicit in the replacement
legislation.[539]
7.26
Another equally controversial construction put on the operation of
section 6[540]
is that it has been held in a series of cases in England,[541] and in a Circuit Court case in Ireland,[542]
that it may enlarge what was previously a purely informal arrangement, such as
a revocable licence personal to the licensee, into a full legal easement.
A typical example would be where an owner lets part of property and, as an act
of kindness or good neighbourliness, permits the tenant to take a short cut
through the part of the property retained and still occupied by the
landlord. Such permission would normally be revocable at any time.[543]
If later the landlord conveys the freehold reversion in the let part to the
tenant, the effect of that will apparently be that the tenant then acquires a
legal right of way, attached to the freehold in the former let part of the
property and exercisable indefinitely over the landlord’s retained land.
This may have disastrous consequences for the landlord and constitutes a trap
for the unwary conveyancer who should remember in such situations to protect
the landlord by including an express exclusion of section 6.[544] This seems to be a flawed
interpretation of the section and contrary to what must have been intended.[545]
When the section refers to various rights passing with a conveyance of “land”,
as appertaining to or enjoyed with the “land”, this must surely be taken to
mean not only existing rights,[546] but also only such rights already
attaching to the estate or interest in the land being conveyed. In other
words, it is crucial to abide by the fundamental principles of our land law
system, one of which is that what is owned or conveyed is an estate or interest
in land rather than the physical entity.[547] If one then reverts to the
example given above, the issue is what existing rights attached to the freehold
reversion subsequently conveyed to the tenant of the part of the
property. The answer must surely be none. The only “right” existing
prior to the conveyance of the freehold reversion was the bare licence
attaching to the lease. There was certainly no legal right of way
attaching to the freehold reversion held by the landlord in the part let to the
tenant and exercisable over the land the landlord retained.[548] The Supreme Court in the William
Bennett Construction Ltd case[549] also took the view that section 6 of
the 1881 Act could not “enlarge” a purchaser’s rights. It is recommended
that the replacement of section 6 should also make this point explicit.[550]
In the light of the above discussion section 6 should be replaced with
substantial amendment.
7.27
The Commission
provisionally recommends that section 6 of the Conveyancing Act 1881 should
be replaced with substantial amendment so as to make it explicit that section 6
cannot be used to enlarge what was previously a purely informal arrangement,
such as a revocable licence personal to the licensee, into a full legal
easement.
(4)
Other Pre-1922 Statutes
7.28
It may be convenient finally, to draw attention to other legislation
which relates to easements and profits. Attention was drawn in an earlier
chapter to the Commons Acts (Ireland) 1789 and 1791, which relate to
commonages of remote land in rural areas, involving rights like grazing rights
shared amongst numerous people.[551] The Turbary (Ireland) Act 1891[552]
was part of the land purchase scheme[553] and provided for regulation of rights
of turbary (the right to cut turf) following purchase of land by tenants under
that scheme. This will be considered by the Commission’s Landlord and
Tenant Group as part of its review of pre-1922 statutes relating to landlord
and tenant matters.[554]
E
Freehold Covenants
7.29
The law relating to enforcement of freehold covenants, which is
seriously flawed,[555]
was the subject of a major review by the Law Reform Commission recently.
The resultant Report[556]
contains recommendations for substantial reform and these should be implemented
in the new legislation.[557]
7.30
The Commission provisionally recommends that Chapter 1 of the Report
on Land Law and Conveyancing Law: (7) Positive Covenants over Freehold Land and
Other Proposals (LRC 70-2003) relating to freehold covenants should be
implemented.
7.31
Finally it should be noted that there is one pre-1922 statutory
provision which relates partly to freehold covenants. Section 11 of the Conveyancing
Act 1911 entitles a purchaser of part of land held under a common title to
require a memorandum giving notice of restrictive covenants, or other rights,
attaching to other land held under that common title, endorsed on or annexed to
the title deeds probably held by some other party.[558] However, the section makes it
clear that a failure to invoke its provisions does not prejudice a purchaser’s
title[559]
and, in practice, it is rarely, if ever, used. It is recommended that it
be repealed without replacement.
7.32
The Commission provisionally
recommends that section 11 of the Conveyancing
Act 1911, should be repealed without replacement.
8.
Chapter 8
CONTRACTS AND CONVEYANCES
8.01
This Chapter deals with numerous matters which relate to the
conveyancing process, including the two key documents at the heart of that
process – the contract for sale and the deed of conveyance (or transfer in the
case of registered land).[560]
This is the area on which the Law Reform Commission has issued several previous
Reports and Consultation Papers which are referred to in the following
paragraphs. It is also an area covered by many pre-1922 statutes which
require consideration. This is best done initially by considering them
under the two broad headings of contracts and conveyancing. The Chapter
then ends with a detailed consideration of the provisions of the key statutes,
the Conveyancing Acts 1881-1911.
A
Contracts
8.02
Several pre-1922 statutes deal with contracts for the sale or other
disposition of land, including the formalities for the creation of a binding
contract and the terms and conditions of that contract.
(1)
Statute of Frauds (Ireland) 1695[561]
8.03
Section 2 of this Statute, which requires some written evidence of the
making of the contract relating to land to render it enforceable in court, is
one of the most litigated statutory provisions.[562] Its operation was reviewed by the
Law Reform Commission in its Report on Gazumping,[563] and the conclusion reached was that a
change in its basic provisions was not to be recommended.[564] Considerable guidance on the
section’s operation has been given by the Supreme Court in recent times[565]
and, as the Report on Gazumping pointed out,[566] the new legislation in England and
Wales has proved to be somewhat controversial.[567] Until an e-conveyancing system
comes on stream,[568]
it seems more appropriate to retain the existing provisions, however imperfect
they have proved to be over the centuries. This is, however, subject to
two recommendations.[569]
8.04
One recommendation is that the wording of section 2 of the 1695 Statute
should be recast in modern language. A precedent for this was provided in
the English 1925 property legislation.[570] The other recommendation is that
the new legislation should confer statutory power to alter the requirements in
future by statutory instrument. It is envisaged that this power might be
exercised, not only with a view to facilitating introduction of e-conveyancing,
but also with a view to responding to market developments and providing
elements of consumer protection. It is suggested that the various
recommendations in the Report on Gazumping, relating to matters such as
providing a statutory form of receipt for booking deposits and regulating
advertisements of the sale of houses in new developments, are best implemented
in this way. Subject to this, section 2 of the Statute of Frauds
(Ireland) 1695 should be replaced without substantial amendment.
8.05
The Commission provisionally recommends that the Statute of
Frauds (Ireland) 1695 should be replaced without substantial amendment.
8.06
Before turning to other pre-1922 statutes relating to contracts for the
sale of land, it may be convenient to consider a number of related issues which
have also been the subject of review by the Law Reform Commission:
(i)
Tempany v Hynes[571]: This exceptionally controversial
decision of the Supreme Court has caused all sorts of problems for
practitioners.[572]
In ruling that, upon the creation of a contract for the sale of land, the
purchaser acquires a beneficial interest commensurate with, and to the extent
only of, the amount of the purchase money which has been paid,[573]
the Court overturned what had hitherto been accepted to be the position.[574]
This was that the effect of a binding contract for the sale of land was to pass
the entire beneficial interest to the purchaser. The Commission
recommended that the decision should be reversed by legislation and that the
“orthodox” position should be restored.[575] This recommendation should be
implemented in the new legislation.
(ii)
Bain v Fothergill[576]: This is another controversial case, a
decision of the House of Lords in the 19th century, which restricted
a purchaser’s right to claim damages for breach of contract, when it turned out
subsequent to the contract for sale that the vendor could not show good title
to the property contracted to be sold.[577] Although over the years the
judiciary expressed dissatisfaction with the rule, it has continued to be
applied. The Commission recommended that it be abolished by statute,[578]
as has been done in England and Wales.[579] This recommendation should also
be implemented in the new legislation.
(iii)
Land Act consents: A legacy of the land purchase scheme[580]
is the need in many transactions to obtain consents under the Land Act 1965.[581]
This has become increasingly anomalous with the State’s position under the EU
and various adjustments have had to be made.[582] The Commission drew attention to
these difficulties and called for further adjustments.[583] However, it is clear that in
recent times the need for such consents has become largely a pure formality,
which generates much needless paperwork and constitutes an irritant in the
conveyancing process. The Land Bill 2004[584] proposes to abolish the need for such
consents[585]
and, if that Bill does not proceed to law for any reason, it is recommended
that a similar provision be included in the legislation to implement the
recommendations in this Consultation Paper.
(iv)
Registration of Title Act 1964, section 23: This section in the
1964 Act, which deals with certain cases where compulsory registration arises,
does give rise to some practical conveyancing problems, which are again a
legacy of the land purchase scheme.[586] The Commission recommended
legislation to deal with these[587] and it is understood that this would be
implemented in the draft Registration of Deeds and Titles Bill, which
was included in the Government Legislation Programme published on 28 September
2004. On the assumption that the Bill will be introduced and duly
enacted,[588]
there would be no need for the legislation designed to implement the
recommendations in this Consultation Paper to deal with the matter.[589]
(v)
Conditions of Sale: In 1991 the Commission issued two Reports, one
dealing with the extent to which the risk of damage to the property should pass
to the purchaser upon the entering into of the contract for sale[590]
and the other dealing with service of completion notices.[591] The recommendations in both
instances were for statutory provisions, but, in fact, they were both
implemented by the Law Society in revisions of the General Conditions of
Sale,[592]
which are part of its standard contract for sale form which is invariably used
by practitioners.[593]
On this basis there seems to be no need for statutory provisions, but it should
be made clear in the new legislation that the power to make regulations by
statutory instrument recommended earlier[594] should cover conditions of sale.
8.07
The Commission
provisionally recommends that:
(i) the decision in Tempany v Hynes be reversed
and that the “orthodox” position be restored, whereby a binding contract for
the sale of land will transfer the entire beneficial interest to the purchaser;
(ii) the rule in Bain v Fothergill should be abolished;
(iii) legislation should be implemented to abolish
the consents required for certain transactions under the Land Act 1965;
(iv) its proposals in relation to section 23 of the Registration of Title Act 1964
be implemented;
(v) a power to make regulations by statutory instrument
concerning contracts for and conditions of sale should be included in the new
legislation.
(2)
Sale of Land by Auction Act 1867[595]
8.08
This Act regulates the terms upon which auction sales of land are
conducted and is of considerable practical significance in Ireland, because it
is more common here to sell houses by public auction rather than by private
treaty, than it is in England and Wales.[596] The Act governs matters like
fixing a reserve price and reserving the vendor’s right to bid at the
auction. Its provisions have long been reflected in the Law Society’s General
Conditions of Sale.[597]
The new legislation should retain the substance of the Act, but the provisions
should be recast in a much simpler form, such as that contained in the Law
Society’s General Conditions.[598] Furthermore it is recommended
that the provisions relating to court sales[599] and re-opening of biddings[600]
are best left to be dealt with by rules of court.[601] Subject to this the 1867 Act
should be replaced without substantial amendment.
8.09
The Commission
provisionally recommends that the provisions of the Sale of Land by Auction Act 1867
should be recast in a simpler form. It is also recommended that
the provisions relating to court sales and re-opening of biddings should be
dealt with by rules of court. Subject to that the 1867 Act should be replaced
without substantial amendment.
(3)
Vendor and Purchaser Act 1874[602]
8.10
The provisions of this Act still in force are important in relation to
conveyancing practice. Sections 1 and 2 concern the title to be shown by
a vendor in conveyancing transactions, and operate as “default” provisions, ie
they operate in the absence of express provisions to the contrary in the
contract.[603]
Nevertheless they have considerable significance because, as statutory
provisions, they set the context in which express provisions are made and tend
to create the norm for these.
8.11
Section 1 prescribes the period of title which should be shown, 40
years, and the Commission recommended some time ago that this should be reduced
to 20 years.[604]
It rejected the argument for reducing it further, to 15 years, as was done in
England and Wales,[605]
on the ground that this would be uncomfortably close to the 12-year limitation period
for actions to recover land (which may be extended in cases of fraud or
disability). [606]
This recommendation that the period should be reduced to 20 year should be
implemented in the new legislation, so that section 1 should be replaced with
substantial amendment.
8.12
The Commission provisionally recommends that the statutory period of
title that needs to be shown on an open contract should be reduced from 40 to
20 years.
8.13
Section 2 deals with the title to be shown in different transactions
involving leases and leasehold property.[607] It should be read together with
other provisions to be found in sections 3 and 13 of the Conveyancing Act
1881. Two aspects of the rules laid down in these provisions seem
unsatisfactory. One is that they are very restrictive, in the sense that
often they result, if applicable, in a purchaser of a lease or of leasehold
property being entitled to see little or nothing about the vendor’s
title. The consequence of this is that they are out of line with what the
Law Society recommends in many cases and practitioners will frequently insist
upon the vendor providing the purchaser with much more title that the statutory
provisions allow. In particular, where a purchaser is being granted a
substantial leasehold interest, and is paying a substantial capital sum
(premium) for it, it is only reasonable that the vendor should be required to
produce evidence of title. It is recommended, therefore, that section 2
of the 1874 Act, and sections 3 and 13 of the 1881 Act, should be modified in
accordance with the Law Society’s recommendations.[608]
8.14
The Commission
provisionally recommends that section 2 of the Vendor and Purchaser Act 1874,
and sections 3 and 13 of the Conveyancing Act 1881 be modified to allow
the purchaser of a lease or of leasehold property to insist upon the vendor
producing more evidence of title than these sections provide for. On that
basis, the Commission provisionally recommends that the sections should be
replaced with substantial amendment.
8.15
The other unsatisfactory aspect of the statutory provisions governing
leases and leasehold property is the rule in Patman v Harland. [609] This rule seems to run counter to
the spirit of the statutory provisions, because it results in a purchaser, who
relies on those provisions, nevertheless being fixed with constructive notice
of matters that would have been discovered if, instead of so relying, an
express provision had been inserted in the contract allowing the purchaser to
see more title than the statutory provisions allow. The rule was abolished
in England[610]
and it is recommended that it be abolished in the new legislation to implement
this Consultation Paper.
8.16
The Commission provisionally recommends that the rule in Patman v
Harland should be abolished.
8.17
Section 9 of the 1874 Act provides for a court procedure which is very
commonly used in Ireland,[611]
a vendor and purchaser summons. This is an application to the High Court
which the parties to a contract for the sale of land can bring in order to
determine issues arising from the contract,[612] such as whether objections or
requisitions raised by a purchaser are proper or reasonable.[613] Given its continued regular use
here, it is recommended that the Court Rules Committees should consider whether
it could be made even more efficient for parties by ensuring that such
applications are heard and dealt with as quickly as possible. [614] Subject to this, section 9 should
be replaced without substantial amendment.
8.18
The Commission
provisionally recommends that section 9 of the Vendor and Purchaser Act 1874
should be examined by the Court Rules Committee to assess whether it can be
made more efficient for parties.
B
Conveyances
8.19
Apart from the Conveyancing Acts 1881-1911 which are considered
later,[615]
there are several pre-1922 statutes dealing with conveyances of land which
require consideration.
(1)
Statute of Uses (Ireland) 1634[616]
8.20
It is extraordinary that this ancient statute, which is a relic from the
feudal ages,[617]
continues to have significance in modern times, so that many deeds of conveyance
still contain references to the vendor conveying the land “to uses”.[618]
The old forms of conveyance linked to the Statute were abolished in England and
Wales as long ago as 1925.[619]
In the 21st century deeds of conveyance, and provisions within them,
should operate in a straightforward and simple manner, as intended by the
parties.[620]
On this basis the 1634 statute should be repealed without replacement.
8.21
The Commission
provisionally recommends that the Statute
of Uses (Ireland) 1634 should be repealed without replacement.
(2)
Conveyancing Act (Ireland) 1634[621]
8.22
This somewhat obscure statute[622] deals with two types of
transaction. One is where a voluntary (ie involving no
consideration paid by the grantee) conveyance of land is regarded as being made
to defraud the purchaser of a subsequent conveyance of the same land (ie
someone who has paid consideration).[623] The provisions relating to this
matter in the 1634 Act, as amended by the Voluntary Conveyances Act 1893,[624]
are confusing and outdated.[625]
They were replaced in much simpler and straightforward language in the English Law
of Property Act 1925[626]
and the same should be done here in the new legislation. Thus it is
recommended that sections 1-5 of the 1634 Act should be replaced with
substantial amendment.
8.23
The Commission
provisionally recommends that sections 1-5 of the Conveyancing Act (Ireland) 1634 as
amended by the Voluntary Conveyances Act 1893 should be replaced with
substantial amendment.
8.24
The other type of transaction covered[627] relates to dispositions of any kind of
property which are designed to defraud creditors. It is not at all clear
how these provisions fit in with the provisions governing this subject in the Bankruptcy
Act 1988. [628]
The provisions in the 1988 Act seem to be comprehensive and so it is
recommended that sections 10, 11 and 14 of the 1634 Act should be repealed
without replacement. [629]
8.25
The Commission provisionally recommends the repeal without replacement
of sections 10, 11 and 14 of the Conveyancing Act (Ireland) 1634.
(3)
Maintenance and Embracery Act (Ireland) 1634[630]
8.26
This Act did two things, only one of which is relevant to this
Consultation Paper. The one which is not of relevance is the application
to Ireland of the ancient law of “maintenance, embracery and champerty”, which
prohibits a person with no interest in the matter from assisting, encouraging or
promoting another person to bring an action in court, usually on the
understanding that a share in any proceeds will be given if the action is
successful. This law is designed to protect the integrity of the
administration of justice and has been recognised and applied by the Irish
courts in recent times, albeit on the grounds of “public policy” rather than by
reference to the 1634 Act. [631]
8.27
The provisions[632] of the Act which are of relevance are those which prohibit
the buying, selling or otherwise obtaining of any “pretenced title” to land,
unless the vendor or grantor has been in possession at least one year before
the sale or grant. These provisions clearly belong to another age, when
title to property was often very insecure or subject to dispute, with the
result that it was common for people to lay claim to land to which they had no
valid title. On that view the Act is now obsolete[633] and should be removed from the statute
book, as Kenny J suggested in Brown v Fahy. [634] It is recommended that sections
2, 4 and 6 of the 1634 Act be repealed without replacement.
8.28
The Commission
provisionally recommends that sections 2, 4 and 6 of the Maintenance and Embracery Act
(Ireland) 1634 should be repealed without replacement.
(4)
Real Property Act 1845[635]
8.29
This Act contains a number of important provisions. One, relating
to future interests, has already been dealt with[636] and another relates to the law of
landlord and tenant, [637] which is outside the scope of this Consultation Paper. [638]
8.30
Section 2 of the Act is a fundamental provision which introduced the
modern deed as the main method of conveying land, but only as an alternative to
the ancient feudal methods (such as “feoffment with livery of seisin”) and
those linked to the Statute of Uses (Ireland) 1634[639] (such as a “bargain and sale” and
“covenant to stand seised”).[640]
Clearly these relics from the past should be removed and the simple deed should
become the sole method of conveying land,[641] pending the introduction of electronic
methods under an e-conveyancing system. It should remain the case that
there are certain, long-established exceptions to the rule that a deed, as
opposed to an unsealed written document, must be used, eg some leases
and leasehold transactions[642]
and wills and assents. [643]
8.31
The Commission
provisionally recommends that the simple deed should become the only method of
conveying transferring land pending the introduction of electronic methods
under an e-conveyancing system.
8.32
The other matter which should be implemented by the new legislation is
an overhaul of the requirements for valid creation or execution of deeds
previously recommended by the Commission.[644] This includes an extremely
important provision to cover foreign corporate bodies dealing with land in the
State. With the considerable increase in foreign investment which the
State has experienced in recent times, there is now an urgent need to cater for
overseas companies which do not have a corporate seal of the sort which Irish
and British companies have. On the basis of the recommendations contained
in this and the previous paragraph section 2 of the 1845 Act should be replaced
with substantial amendment.
8.33
The Commission provisionally recommends that section 2 of the Real
Property Act 1845 should be replaced with substantial amendment so as to
overhaul the requirements for valid creation or execution of deeds, including
the requirements in relation to foreign corporate bodies dealing with land in
the State.
8.34
As regards the Act’s other provisions of relevance, section 3, so far as
it remains unrepealed, [645]
deals with partitions, exchanges and releases and can be replaced without
substantial amendment. [646]
The same applies to section 4, which relates to the effect of words commonly
used in conveyances, such as “give” and “grant”.[647] Section 5 is a somewhat obscure
provision and should be replaced with substantial amendment to resolve a number
of doubts.[648]
In particular it should be made clear that it does not affect generally the
fundamental doctrine of privity of contract. Section 6 renders various
future interests alienable[649] inter vivos[650] and, subject to it being made clear
that it covers all such interests, [651]
should be replaced without substantial amendment.
8.35
The Commission
provisionally recommends that section 3 of the Real Property Act 1845 should
be replaced without substantial amendment. Similarly, the Commission
provisionally recommends that section 4 of the same Act should be replaced
without substantial amendment. Section 6 should also be replaced without
substantial amendment. Section 5 should be replaced with substantial
amendment to resolve a number of doubts.
(5)
Law of Property Amendment Act 1859[652]
8.36
This Act contains a number of miscellaneous provisions still in force,
some of which relate to landlord and tenant law and so are outside the scope of
this Consultation Paper.[653]
With respect to those which are relevant,[654]
section 21 is one of a number of provisions designed to enable a person to
transfer property to himself and another.[655] The section and other provisions
should be consolidated into a general provision governing such transactions, [656]
so that it would be replaced without substantial amendment. Section 24[657]
is a somewhat convoluted provision making it a crime to conceal title deeds
fraudulently or to deduce title falsely.[658] It should be recast in much more
simple form and language, but otherwise be replaced without substantial
amendment.
8.37
The Commission
provisionally recommends that section 21 of the Law of Property Amendment Act
1859, as one of a number of provisions designed to enable a person to
transfer property to himself and another should be consolidated into a general
provision governing such transactions, so that it would be replaced without
substantial amendment. The Commission also recommends that section 24 of
the 1859 Act should be recast in much more simple form and language, but otherwise
be replaced without substantial amendment.
(6)
Law of Property Amendment Act 1860[659]
8.38
This Act also contained various miscellaneous provisions, not all of
which applied to Ireland.[660]
Section 6 concerned landlord and tenant law and is not relevant to this
Consultation Paper. Section 7 concerned future interests and was dealt
with earlier. [661]
Section 8 simply amended section 24 of the 1859 Act.[662] Section 10 empowered the Lord
Chancellor to make orders as to investment of cash under the control of the
court. This would seem to have been superseded by Rules of Court[663]
and should be repealed without replacement.
8.39
The Commission
provisionally recommends that Section 10 of the Law of Property Amendment Act
1860 should be repealed without replacement.
(7)
Sales of Reversions Act 1867[664]
8.40
This Act was designed to counter a judicial inclination to view sales of
“reversionary” interests with much suspicion, particularly if there was a
suggestion of a sale at undervalue.[665] It is difficult to
justify singling out such transactions nowadays and this matter should be left
to be dealt with under the wide equitable jurisdiction to strike down
“improvident” bargains[666]
and transactions vitiated by improper conduct, such as fraud, duress, undue
influence or other unconscionable behaviour.[667] It is recommended that the 1867
Act should be repealed without replacement.
8.41
The Commission
provisionally recommends that the Sale
of Reversions Act 1867 should be repealed without replacement.
(8)
Voluntary Conveyances Act 1893[668]
8.42
This Act amended sections 1 and 3 of the Conveyancing Act (Ireland)
1634, but in a somewhat ambiguous way.[669] It was recommended earlier that
the 1634 and 1893 Acts should be replaced with substantial amendment.[670]
C
Conveyancing Acts 1881-1911
8.43
It is appropriate now to consider the provisions in these key Acts
relating to contracts and conveyances of land. As regards the main Act of
1881, some Parts relate to the law of landlord and tenant[671] and are outside the scope of this
Consultation Paper.[672]
Parts IV and V relate to the law of mortgages and are considered in a later
chapter.[673]
Part X relates to rentcharges and was considered in an earlier chapter.[674]
The Parts still in force[675]
which are of relevance are Parts I, II, IX, XII, XIV and XV-XVIII. It
seems appropriate to deal with these on a section-by-section basis before
turning to the provisions of the other Acts.
(1)
Conveyancing Act 1881[676]
Section 2: This is an important definition section which is
often invoked as an aid to interpretation of other legislation and conveyancing
documents. In that respect it acts as a supplement to definitions of key
words relating to land law and conveyancing law contained in the Interpretation
Act 1937,[677]
which, of course, are applicable only to Acts of the Oireachtas. The
Commission recommended that the definitions in the 1937 Act should be made
applicable also to private documents relating to land[678] and this should be implemented in the
new legislation. Apart from that, clearly an updated[679] and expanded version of section 2 of
the 1881 Act will be needed in the new legislation, particularly because of its
much wider scope. On that basis it is recommended that section 2 be replaced with substantial amendment.
Section 3: This section
is linked with section 2 of the Vendor and Purchaser Act 1874.[680] It was recommended earlier that
both provisions[681] should be
replaced with substantial amendment to reflect the Law Society’s
recommendations in respect of transactions relating to leasehold
property. Apart from that some updating and modifications should be
made. Subsection (2) should be dropped as it relates to copyhold.[682] As regards subsections (4) and
(5), which concern the effect of production of a receipt for rent, these should
be rendered more effective by providing that an unqualified[683]
receipt is conclusive evidence.[684]
As regards subsection (11), it should be made clear that, where a court refuses
to order specific performance against a purchaser, it has an unfettered discretion
to order refund of some or all of any deposit paid.[685]
Section 4: This section
confers statutory authority on personal representatives to complete a contract
entered into by the deceased before death, but this appears to have been
rendered redundant by the general powers conferred on personal representatives,
now contained in the Succession Act 1965.[686]
Section 4 should be repealed without replacement.
Section 5: It was
recommended earlier that this provision no longer serves a useful purpose and
should be repealed without replacement.[687]
Section 6: The
operation of this section was considered at length earlier in the context of
acquisition of easements and profits. It was recommended that it should
be replaced with substantial amendment.[688]
Section 7: This
section plays a vital role in conveyancing practice by providing detailed statutory
covenants for title to be implied in conveyances and transfers of land.
Although highly laudable in aim, the provisions are flawed in several respects.[689]
They are couched in language of mind-boggling complexity, riddled with
ambiguities and uncertainties and, largely as a consequence of a last minute
amendment to the 1881 Bill, often rendered ineffective.[690] Clearly all these flaws should be
addressed in the new legislation and a good precedent is to be found in the
proposals for Northern Ireland.[691] On this basis section 7 should be
replaced with substantial amendment.
Section 8: This
section clarified the common law by disentitling a purchaser from requiring the
vendor to execute the deed of conveyance or transfer in the purchaser’s or the
purchaser’s solicitor’s presence, but it does enable the purchaser to require
his own witness to attest the execution, albeit at the purchaser’s cost.
Such requirements, including the latter, would be entirely out of keeping with
modern practice. The section would seem to have been redundant for a long
time and should be repealed without replacement.[692]
Section 9: This
section is commonly relied upon where part only of land is disposed of and the
title deeds are kept by the vendor (because they also relate to the part
retained).[693]
Its provisions should be retained but they should be amended to make it clear
that both the acknowledgement of the right to production and the undertaking
for safe custody of the title deeds pass automatically to subsequent purchasers
of the part sold off.[694]
Subject to that section 9 should be replaced without substantial amendment.
Section 41: This
section declared that land vested in a minor was to be deemed a settled estate
within the Settled Estates Act 1877.[695] It was probably rendered
redundant by the provisions governing minors in the Settled Land Act 1882[696]
and would clearly become so under the proposed new regime whereby a minor’s
land would be vested in trustees with full powers of dealing with it.[697]
Section 41 should be repealed without replacement.
Sections 42 and 43: These
sections relate to the management of a minor’s land by trustees and application
of income for the minor’s maintenance, education or benefit. These
matters belong more to the general law of trusts and will be dealt with by the
Commission in reviewing that area of the law.
Section 49: This section
provides that the rather archaic word “grant” need not be used in a deed of
conveyance. It can now be repealed without replacement.[698]
Section 50: It was
recommended earlier that this section, which relates to conveyances by a person
to oneself, should be consolidated with section 21 of the Law of Property
Amendment Act 1859.[699]
It should thereby be replaced without substantial amendment.
Section 51: This
section should be replaced by a provision abolishing the need for words of
limitation in deeds relating to unregistered land, as was done by section 123
of the Registration of Title Act 1964 for registered land
transfers. Such a step was recommended some time ago by the Commission[700]
and was taken in England and Wales in 1925.[701] Thus the section should be replaced
with substantial amendment.
Section 52: This
section was considered earlier in relation to powers of appointment.[702]
Section 53: This
section facilitates the use of supplemental deeds and is much relied upon in
practice.[703]
The one change recommended is that it should be extended to cover any
instrument and not just deeds. Subject to that it should be replaced
without substantial amendment.
Section 54: This is
another section much relied upon in practice, sanctioning the modern practice
of including a receipt clause within a deed rather than endorsing it on the
back of the deed.[704]
It should be replaced without substantial amendment.
Section 55: This
section also relates to receipts in or endorsed on deeds and enables a
purchaser to rely on such a receipt. However, it is recommended that it
should be a conclusive rather than “sufficient” discharge for a
purchaser without notice.[705]
On that basis it should be replaced with substantial amendment.
Section 56: This too
relates to receipts and authorises a solicitor producing a deed with a receipt
to receive the purchase money.[706] It is recommended that it be
extended to cover any person employed by and acting with the authority of the
solicitor in the particular transaction, whether within the solicitor’s office
or as agent of the solicitor, eg another solicitor acting as a country
solicitor’s town agent. Again it should be conclusive evidence in favour
of the person paying the money. On that basis the section should be replaced
with substantial amendment.
Section 57: This
section provides for statutory forms of deeds (set out in the 4th
Schedule to the Act), but these have never been used in practice. Since
they seem to have become a “dead letter” section 57 and the 4th Schedule should
be repealed without replacement.
Section 58: This
section is one of a number of “word-saving” provisions in the 1881 Act[707]
and on the face of it is relatively straightforward. It purports to save
references to a covenantee’s successors in title, but the English replacement[708]
has caused considerable controversy. The English Court of Appeal held
that it altered the substantive law and, in effect, provided a statutory
annexation of the benefit of a covenant to the land owned by the covenantee.[709]
This sort of confusion must be avoided in the new legislation and the provision
in section 58 should be consolidated with the new provisions governing freehold
covenants referred to earlier.[710] The complications of “annexation”
should be abolished and, in essence, the position in future should be that,
unless the deed contains an express provision to the contrary, the benefit of
the freehold covenants should run automatically with the land benefited, so as
to accrue to the benefit of the original covenantee’s successors in title.[711]
On that basis section 58 should be replaced with substantial amendment.
Section 59: This is
the corollary of section 58, operating in respect of successors to the original
covenantor. Again it should be incorporated in the new provisions for
freehold covenants, which are designed to abolish the restrictions of the rule
in Tulk v Moxhay.[712]
Section 60: This
section supplements sections 59 and 60 and deals with cases where two or more
parties enter into covenants jointly. It too should be incorporated in
the new provisions for freehold covenants. On that basis it should be replaced
without substantial amendment.
Section 61: This
section relates to the law of mortgages and is dealt with later.[713]
Section 62: This
section was designed to enable an easement to be reserved by using the Statute
of Uses (Ireland) 1634. It was recommended earlier that this sort of
archaic complication should be removed, with repeal of that Statute, and
reservations in deeds should operate without such necessities.[714]
On that basis section 62 should be repealed without replacement.
Section 63: This
section was designed to remove the need to include an “all estate” clause in
deeds, to render them as effective as possible. It is often useful in
practice, but should be extended to cover all instruments disposing of land.[715]
On that basis it should be replaced with substantial amendment.
Section 64: This
section relates to the construction of implied covenants. Its provisions
should be incorporated in the general definition section in the new legislation.[716]
In this way it would be replaced without substantial amendment.
Section 66: This
section contains a somewhat odd provision, providing that powers and implied
provisions of the Act are to be “deemed in law proper”, but that a solicitor is
not guilty of negligence by not including them where the Act allows this to be
done. This seems to state the obvious and its very inclusion in the Act
is more likely to cause doubt and confusion than provide clarity.[717]
Such a provision does not appear in more modern statues. It should be repealed
without replacement.
Section 67: This
contains a very useful provision concerning service of notices, but only where
required under the Act. It should be extended to cover service of notices
generally (ie in private transactions relating to land)[718]
and to cover modern methods of electronic transmission, such as by fax and
email. It should be replaced with substantial amendment.
Section 69: This
section relates to the jurisdiction of the Court (the High Court for the
purpose of the 1881 Act) and procedural matters. The jurisdiction of the
courts is nowadays governed by the post-1922 Courts Acts, and procedural
matters should be left to be dealt with by rules of court.[719] On that basis section 69 should
be repealed without replacement.
Section 70: This
section provides that court orders are to be taken to be conclusive by a
purchaser despite want of jurisdiction or failure to obtain consent “whether
the purchaser has notice of any such want or not”. This seems somewhat
sweeping and it is recommended that the protection should cover only a purchaser
without notice of the irregularity. Section 70 should accordingly be
replaced with substantial amendment.
(2)
Conveyancing Act 1882[720]
Section 3: This is
one of the fundamental provisions governing conveyancing, which deals with the
doctrine of notice.[721]
It should be replaced without substantial amendment.
Section 4: This
section also states a rule of long-standing, that a contract for a lease (as
opposed to the lease itself) is not part of the title to be deduced by a
vendor. It should be replaced without substantial amendment.
(3)
Conveyancing Act 1892[722]
(4)
Conveyancing Act 1911[723]
Sections 1,[724] 6 and 11 were dealt with earlier in
relation to appurtenant rights.[725] Sections 3-5, 9, 13 and 15 relate
to mortgages and are dealt with later.[726] Section 8 relates to the law of
trusts and is outside the scope of this Consultation Paper. Section 10
relates to settlement of land and was dealt with earlier.[727]
8.44
The Commission
provisionally recommends that amendments should be made to sections 2, 3, 4, 5,
6, 7, 8, 9, 41, 42, 43, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 62, 63,
64, 66, 67, 69 and 70 of the Conveyancing
Act 1881. In some cases the amendment will be without replacement.
8.45
The Commission
provisionally recommends that:
(i) section 3 of the Conveyancing Act 1882 which
deals with the doctrine of notice should be replaced without substantial
amendment;
(ii) section 4 of the Conveyancing Act 1882, which
states that a contract for a lease (as opposed to the lease itself) is not part
of the title to be deduced by a vendor, should be replaced without substantial
amendment.
9.
Chapter 9
MORTGAGES
9.01
Mortgages play a fundamental role in land transactions since most
purchasers of land have to borrow a substantial proportion of the purchase
money. This loan is usually secured by the lending institution (the
mortgagee) taking a mortgage of the land purchased from the purchaser-borrower
(the mortgagor).[728]
Unfortunately the law of mortgages is extremely outdated and complex and, as
indicated earlier,[729]
in need of considerable reform.[730]
9.02
The current law of mortgages is a complicated mixture of the common law,
supplemented by equitable principles developed by the old Court of Chancery and
later by statute law. Three broad areas seem to merit consideration: (1)
the methods of creating mortgages; (2) control of the terms of mortgages, particularly
from the viewpoint of protecting mortgagors (the consumer protection aspect);
(3) operation of mortgagee remedies (which does have an obvious connection with
(2)). It may be convenient to examine these points before considering the
pre-1922 statutes relating to mortgages.
A
Methods of Creating Mortgages
9.03
It remains the case in Ireland that mortgages of unregistered land can
still be created by the various ways developed by conveyancers over the centuries.
In particular, the traditional method remains of having the mortgagor convey or
assign the ownership of the land[731] to the mortgagee, so that it
technically owns the land until the loan is repaid and it then reconveys or
reassigns the ownership back to the mortgagor, ie discharge of the
mortgage following “redemption” by the mortgagor. In addition it is also
not uncommon, indeed, it is usual, to have mortgages of leasehold land created
by “sub-demise”, ie, instead of assigning the leasehold estate to the
mortgagee, it creates a sub-lease only. The reason for this is that the
mortgagee does not wish to assume the lessee’s obligations under the lease.[732]
Apart from such formal legal mortgages it is not uncommon to have various forms
of equitable mortgage. Indeed in the past one of the most common types of
mortgage created in Ireland is the informal,[733] equitable mortgage created by depositing
title documents[734]
with the bank or other lending institution.[735]
9.04
There is clearly considerable scope for simplification of these various
methods, but there is an even more pressing need for radical reform. The
traditional method of creating a mortgage by transferring the ownership of the
land to the mortgagee is inconsistent with the true nature of a mortgage
transaction.[736]
A mortgage is essentially a secured loan transaction. The only, albeit
very substantial, interest which the mortgagee should have is security for its
loan. It is of the very nature of security that the lender does not
expect to have to invoke it – it expects to enforce its security as a last
resort only, ie, where the borrower has defaulted in a serious way and
all other attempts at a resolution of the problem have failed. Otherwise
the mortgagee has no interest in “owning” the land and a system which involves
transfer of ownership, notwithstanding this being subject to the mortgagor’s
right of redemption, is divorced from reality.
9.05
The time has come both to simplify the methods of creating mortgages of
unregistered land and to make them accord more with the realities of the nature
of a transaction designed to provide security for a loan. The obvious way
of doing this is to adopt the method of mortgaging registered land introduced
by statute.[737]
Under this the mortgagee obtains a charge only over the mortgagor’s registered
title (which, therefore, remains vested in the mortgagor, as the registered
owner of the land), but the legislation makes it clear that the mortgagee has
nevertheless all the rights and remedies against the land necessary to enforce
its security.[738]
There is no need to have any other form for unregistered land, so long as the
new legislation similarly makes it clear that a charge by way of legal mortgage
provides the mortgagee with full security rights over the land.[739]
Retention of other methods, such as mortgages by demise or sub-demise, is an
unnecessary complication.[740]
It is recommended that the new legislation prescribes that in future the only
method of creating a legal mortgage of unregistered land is by a charge, to
operate in the same way as a charge of registered land.[741]
9.06
The Commission
provisionally recommends that legislation should prescribe that in future the
only method of creating a legal mortgage of unregistered land is to be by a
charge, to operate in the same way as a charge of registered land.
9.07
As regards informal equitable mortgages, the primary attraction of such
mortgages is their very informality.[742] It is true that such mortgages
are not as popular as they once were, but enquiries of lending institutions,
particularly banks which, in the past, have made much use of mortgages by
deposit, have revealed that they are still used.[743] There seems to be no good reason
for banning them at this stage, although there will be no place for them once a
comprehensive e-conveyancing system is fully operative. It is, therefore,
recommended that the existing methods of creating equitable mortgages should be
retained until that development occurs.
9.08
The Commission provisionally recommends that the existing methods of
creating equitable mortgages should be retained.
B
Control of Terms of Mortgages
9.09
Over the centuries the courts have evolved a considerable jurisdiction
to oversee the operation of mortgages. Based upon equitable principles,
various doctrines, such as those against “clogs on the equity of redemption”
and “collateral advantages”, have been created to prevent the mortgagee taking
unfair advantage of the mortgagor.[744] Since this is an evolving
jurisdiction[745]
based upon equitable principles, it would be inappropriate to impinge upon it
by legislation – the courts should be left free to develop it. It is
recommended that there be no statutory interference with equitable jurisdiction
to control the terms and operation of mortgages.
9.10
The Commission
provisionally recommends that there be no statutory interference with equitable
jurisdiction to control the terms and operation of mortgages.
9.11
In passing it should be noted that a considerable amount of statutory
protection of borrowers taking out housing loans was introduced recently by the
Consumer Credit Act 1995.[746] Amongst matters designed to
confer “consumer protection” on such borrowers are:-
(i)
requiring the borrower to be furnished with a copy of the lender’s valuation
report;[747]
(ii)
giving the borrower a choice over
insurance;[748]
(iii)
furnishing the borrower with information,
documentation and “health” warnings;[749]
(iv)
furnishing the borrower with information as to interest rates;[750]
(v)
restricting penalties for early redemption.[751]
Given the comparatively recent nature of this
legislation it seems appropriate not to recommend extension of it at this
stage. Instead it is recommended that the operation of the Consumer
Credit Act 1995 in relation to land mortgages should be kept under review.
9.12
The Commission
provisionally recommends that the operation of the Consumer Credit Act 1995 in
relation to land mortgages should be kept under review.
C
Mortgagee Remedies
9.13
There are several aspects to the law relating to mortgagee remedies
which require consideration. One is that in respect of many of the
remedies the law is partly complicated by the traditional way of creating
mortgages[752]
and partly driven by the courts’ application of equitable principles.[753]
This has led to the extraordinary practice of mortgage deeds specifying a very
short legal date for redemption (3 or 6 months after the taking out of the
mortgage), which the mortgagor is not expected to meet, particularly in the
typical house purchase mortgage of some 25 years, with the mortgagor thereafter
having to rely on an equitable right to redeem.[754] Some remedies, in particular the
very important statutory powers to sell and to appoint a receiver, reflect this
by drawing a distinction between when the power arises (ie vests in the
mortgagee), which is the legal date for redemption, and when it becomes
exercisable (ie the mortgagee can invoke it), which is usually when some
default by the mortgagor occurs. The law relating to other remedies is
difficult to reconcile with the security nature of a mortgage. For
example, as an English judge once put it, the mortgagee, because a legal estate
is usually vested in it, whether by conveyance or assignment or demise,[755]
can take possession of the land “before the ink is dry on the mortgage.”[756]
9.14
The above approach to the mortgagee’s remedies should be changed to
reflect modern practice. In future the remedies should be based firmly on
the security interest of the mortgagee and should not be exercisable unless and
until it becomes necessary to protect that security or to realise it in order
to obtain repayment of the outstanding debt, including interest. It is,
therefore, recommended that (1) the distinction between remedies arising and
becoming exercisable should be abolished; (2) the mortgagee should have all the
remedies from the moment the mortgage is created, but no remedy should become
exercisable unless it is necessary either to protect the mortgagee’s security[757]
or to realise that security following default by the mortgagor; (3) except in
special circumstances,[758]
no remedy should be exercisable without giving prior written notice to the
mortgagor, thereby giving the mortgagor the opportunity to redeem the
situation;[759]
(4) a special procedure should be created to enable a mortgagee to take
emergency action to protect its security, eg, by taking possession of the land.[760]
9.15
The Commission
provisionally recommends that, in future, the remedies available to mortgagees
should be based firmly on the security interest of the mortgagee and should not
be exercisable unless and until it becomes necessary to protect that security
or to realise it in order to obtain repayment of the outstanding debt,
including interest.
9.16
It may be convenient at this point to say something about specific
mortgagee remedies.
(a)
Foreclosure:
This
traditional remedy, which involves obtaining a court order destroying the
mortgagor’s right of redemption and thereby leaving the mortgagee as the owner
of the land, has always been controversial. It is difficult to reconcile
with the fundamental concept that a mortgage transaction is, in essence, a
secured loan, not a method of acquiring ownership of the land. It also
could work considerable hardship because in most cases the value of the land
which the mortgagee is left owning will greatly exceed the amount of the
outstanding debt. In practice all this is largely academic because the
Irish courts determined over a century ago to stop granting foreclosure and
have since preferred instead to order a sale of the land.[761] In that way the proceeds of sale
can be divided between the mortgagor and mortgagee in accordance with what is
strictly due to each. The time has come to consign the remedy to
history. It is, therefore, recommended that the remedy of foreclosure be
abolished.
(b)
Possession:
As
indicated earlier,[762]
the right to take possession should no longer be exercisable unless and until
it becomes necessary to protect or realise the mortgagee’s security.[763]
Furthermore, it was also recommended that it should not be exercised unless
prior written notice is given to the mortgagor, unless emergency circumstances
justify speedier action.[764]
In addition it is recommended that (1) the summary jurisdiction to order
possession contained in section 62(7) of the Registration of Title Act 1964
should be extended to mortgages of unregistered land and, in all cases, should
cover not only cases of default, but also emergency or other cases involving
special circumstances; (2) where the mortgagee does take possession, it should
be obliged either to proceed to sell the land within a reasonable time or let
it and to use the rent to reduce the mortgage debt; (3) the power to adjourn
proceedings and give the mortgagor time to retrieve the situation conferred by
section 7 of the Family Home Protection Act 1976[765] should be extended to all residential
property, whether or not a family home.
(c)
Sale:
Apart from
complying with the recommendations made earlier in respect of all powers, such
as the power not being exercisable unless it is necessary to protect or realise
the mortgagee’s security, it is recommended that: (1) it is made clear in the
new legislation that a purchaser is not obliged to enquire as to whether the
mortgagee has met the statutory requirements and will obtain a good title from
a selling mortgagee unless there is actual knowledge of an irregularity; (2)
the mortgagor should be entitled to seek a court order requiring the mortgagee to
proceed with the sale, or to postpone it because of the state of the market and
to let it in the meantime, thereby enabling the mortgagor to reduce the debt
exposure[766];
(3) the statutory duty to obtain the best price reasonably obtainable on a sale
imposed on building societies[767] should be extended to all mortgagees. [768]
(d)
Appointment of a receiver:
Generally
the power to appoint a receiver is a very effective one and seems to require
little in the way of reform. It is, however, recommended that (1) where
the statutory power is invoked, it should be possible for a mortgagee to waive
the benefit of the payments schedule set out in the legislation;[769]
(2) it should be made clear in the legislation that the same duty of care
applies where a receiver sells the land on behalf of the mortgagee[770]
and that the use of a receiver cannot be a method of getting around
restrictions on the power of sale.
9.17
The Commission
provisionally recommends:
(i) that the remedy of foreclosure should be
abolished;
(ii) that the right to take possession should no
longer be exercisable unless and until it becomes necessary to protect or
realise the mortgagee’s security. Furthermore, it should not be exercised
unless prior written notice is given to the mortgagor, unless emergency circumstances
justify speedier action.
(iii) that: (1) it should be made clear in the new
legislation that a purchaser is not obliged to enquire as to whether the
mortgagee has met the statutory requirements and will obtain a good title from
a selling mortgagee unless there is actual knowledge of an irregularity; (2)
the mortgagor should be entitled to seek a court order requiring the mortgagee
to proceed with the sale, or to postpone it because of the state of the market
and to let it in the meantime, thereby enabling the mortgagor to reduce the
debt exposure; (3) the statutory duty to obtain the best price reasonably
obtainable on a sale imposed on building societies should be extended to
all mortgagees;
(iv) that (1) where the statutory power is invoked,
it should be possible for a mortgagee to waive the benefit of the payments
schedule set out in the legislation; (2) it should be made clear in the
legislation that the same duty of care applies where a receiver sells the land
on behalf of the mortgagee and that the use of a receiver cannot be a method of
getting round restrictions on the power of sale.
D
Miscellaneous Matters
9.18
It may be useful, before turning to pre-1992 statutes, to note at this
stage a few other matters which the new legislation should cover.
Certificates
of Charge: It must
be questioned whether the issue of these in the case of registered land
continues to serve any useful function,[771] given that the existence of the
charge will be noted on the mortgagor’s folio and a copy of this can always be
bespoken. Very recently, with the agreement of interested parties,[772]
and in the interests of simplifying conveyancing transactions, the Land
Registry has resolved that, upon registration of a new ownership, the existing
land certificate will not be reissued and will instead be cancelled. It
is recommended that the issue of a charge certificate upon the mortgage of
registered land should be abandoned.
Welsh
Mortgages: These
sorts of mortgages have been used in the past in Ireland, but are rarely, if
ever, used nowadays.[773]
They have various anomalous features, such as involving the lender taking
possession of land and rents and profits in lieu of interest, and, sometimes,
even capital repayments. All this is inconsistent with a mortgage being
regarded as a means of providing security for a debt only.[774] It is recommended that Welsh
mortgages be prohibited by the new legislation.
Tacking: This is a method whereby a
subsequent mortgagee may acquire priority over a prior mortgage by attaching
its mortgage to an earlier one which has a higher priority. One method,
known as tabula in naufragio,[775] is very controversial because it
involves a later mortgagee buying out an earlier mortgage with a view to
squeezing out of priority an intervening mortgage. It was actually abolished
by section 7 of the Vendor and Purchaser Act 1874, but restored by
section 73 of the Conveyancing Act 1881. It is of very limited
operation because it cannot apply where the priorities are governed by the
Registry of Deeds. It is recommended that tacking in the form of tabula
in naufragio should be abolished, but this should not affect the other form
of tacking which is much used in practice, tacking of further advances. [776]
Discharge
by endorsed receipt:
Pending the introduction of an e-conveyancing system, it is recommended that
the method of discharge of mortgages of unregistered land by endorsed receipt
initially introduced for building society mortgages,[777] and later extended to all mortgages,[778]
should be preserved in the new legislation.
9.19
The Commission
provisionally recommends that:
(i) the issue of a charge certificate upon the
mortgage of registered land should be abandoned;
(ii) Welsh mortgages should be prohibited by the
new legislation;
(iii) tacking in the form of tabula in
naufragio should be abolished, but this should not affect the other form of
tacking which is much used in practice, tacking of further advances;
(iv) pending the introduction of an e-conveyancing
system, the method of discharge of mortgages of unregistered land by endorsed
receipt initially introduced for building society mortgages, and later extended
to all mortgages, should be preserved in the new legislation.
E
Pre-1922 Statutes
9.20
A number of pre-1922 statutes relate to the law of mortgages, in
particular the Conveyancing Acts 1881-1911 which contain substantial
provisions. Before considering these it may be useful to dispose of the
other statutes.
(1)
Clandestine Mortgages Act (Ireland) 1697[779]
9.21
This ancient statute was designed to protect subsequent mortgagees,
where the mortgagor failed to disclose prior judgments entered against him or
prior mortgages of the same land. The need for such protection was
largely removed by the later provision for registration of deeds made by the Registration
of Deeds Act (Ireland) 1707 and registration of judgments by the Judgements
(Ireland) Act 1844. After such enactments the subsequent mortgagee
could obtain protection by making Registry of Deeds and Judgments searches.[780]
Apart from that the sanction imposed by the 1697 Act, depriving the mortgagor
of the right to redeem the subsequent mortgage, was a particularly drastic one
and inconsistent with the principle that a mortgage is essentially a secured
loan transaction only.[781]
It is recommended that the Clandestine Mortgages Act 1697 be repealed
without replacement.
(2)
Satisfied Terms Act 1845[782]
9.22
This Act related to mortgages of freehold land by demise, ie
granting the mortgagee a lease of the land instead of conveying the freehold.[783]
It is extremely rare to mortgage freehold land in this way, unless it is held
under a fee farm grant which operates as in substance a lease.[784]
Mortgages by demise are usually used only for leasehold land, where they
operate essentially by way of a sub-demise.[785] The 1845 Act provided that where
the purpose of a lease of freehold land became satisfied (where the mortgagor
pays off the mortgage debt in full) the lease merges in the reversion, so that
there is no need to surrender it to the mortgagor. The need for this was
largely removed by the “endorsed receipt” system of discharge of mortgages
introduced by statute.[786]
Such a receipt operates both to discharge the mortgage and to reconvey or
surrender the mortgaged interest in question to the mortgagor. It was
recommended that the new legislation should retain this system to cover the new
charge system of creating mortgages.[787] On that basis it is recommended
that the Satisfied Terms Act 1845 be repealed without replacement.
(3)
Mortgagees Legal Costs Act 1895[788]
9.23
This is a somewhat obscure provision designed to enable a solicitor or
solicitor’s firm lending money on mortgage to bill the borrower for the usual
professional charges and fees. This sort of transaction does not occur
nowadays and it is arguably inconsistent with modern rules designed to avoid a
conflict of interest. It is recommended that the 1895 Act be repealed
without replacement.
(4)
Conveyancing Acts 1881–1911
9.24
The Conveyancing Acts 1881–1911 contain many provisions relating
to mortgages which require consideration in some detail.
(a)
Conveyancing Act 1881[789]
Section 15: This
section entitles a mortgagor to transfer the mortgage to a nominee instead of
redeeming it.[790]
Although rarely involved in practice there seems to be no reason to remove the
right. Indeed it is suggested that it should be clarified that it extends
to all mortgages.[791]
It should be replaced without substantial amendment.
Section 16: This
confers a statutory right on the mortgagor to inspect and make copies of title
documents held by the mortgagee so long as the mortgage remains
undischarged. This should be retained, but it should be made clear that
the mortgagee is under an obligation to take care of the title documents while
they are in its possession or under its control.[792] The section should be replaced
without substantial amendment.
Section 17: This
section relates to the very controversial right of a mortgagee, holding from
the same mortgagor two or more mortgages of different properties, to
consolidate the mortgages, ie to insist that they are all redeemed
together so as to avoid the mortgagor redeeming one which is well secured and
leaving another outstanding which is not well-secured. The doctrine has
long been unpopular with the courts[793] and is of questionable validity as a
matter of principle. Why should the mortgagor be forced into having to
rescue the mortgagee which has made some good loans and some bad ones?
Section 17 was designed to restrict the doctrine’s operation, but contained
within it[794]
the means whereby mortgagees can thwart the intention by reserving an express
right to consolidate. The doctrine should be abolished altogether and so
the section should be replaced with substantial amendment.
Section 18: This
section confers statutory leasing powers on both the mortgagor and mortgagee,
but there are doubts both as to its scope and as to the effect of a failure to
comply strictly with its requirements.[795] The power of a mortgagor to lease
is often severely restricted by the mortgage deed and arguably a mortgagee
which has taken possession should only be entitled to lease where this is
appropriate, eg where a sale would be unwise in the current state of the
market and a letting will generate income to be used to reduce the mortgage
debt. As regards compliance with the statutory requirements, the
Commission’s Landlord and Tenant Project Group has criticised the “mixed
message” given by the Leases Acts 1849 and 1850, which suggest
that non-compliance is not necessarily fatal.[796] This seems to be an odd way of
treating statutory requirements.[797] It is recommended that this
provision should be recast to provide: (1) the mortgagor cannot lease without
the consent of the mortgagee, such consent not to be unreasonably withheld, but
it can impose reasonable conditions which must be complied with; (2) a
mortgagee in possession can lease only where this is necessary to preserve the
value of the land, or to protect the mortgagee’s security, or to raise income
to reduce the debt pending a suitable time for sale, or where the mortgagor
consents. On that basis section 18 should be replaced with substantial
amendment.
Section 19: This is,
perhaps, the most important provision in the Act. It confers “default” [798] powers on the mortgagee: to sell,
insure the land, appoint a receiver and to cut and sell timber.[799]
The provisions should be recast to reflect the points made earlier about
exercise of mortgagee remedies.[800] In addition the provisions as
regards insurance fall short of what most mortgagees require nowadays and
should reflect current practice in this regard. They should be
supplemented by a provision requiring the mortgagor to keep the mortgaged
property in good and substantial repair. On this basis section 19 should
be replaced with substantial amendment.
Section 20: This
regulates the mortgagee’s exercise of the power of sale and should be recast to
reflect the recommendations made earlier.[801] It should, therefore, be replaced
with substantial amendment.
Section 21: This
also regulates the operation of a sale by a mortgagee and should be recast to
reflect the fact that under the recommended new regime a mortgagee of
unregistered land will have a charge only on the land.[802] It should provide that such a
mortgagee, and a chargee of registered land, has full power to sell whatever
estate or interest is vested in the mortgagor, without the need for any power
of attorney. Some consequential amendments should also be made, eg
dropping any reference to foreclosure, which it was recommended earlier should
be abolished. [803] The section should be replaced with substantial
amendment.
Section 22: This is
an important provision giving protection to purchasers from mortgagees.
That protection should be enhanced by making the mortgagee’s receipt a conclusive,
rather than merely sufficient, discharge, unless the purchaser has actual
knowledge of any impropriety. The section should, therefore, be replaced
with substantial amendment.
Section 23: As
recommended earlier in relation to section 19 this should be recast to reflect
current practice in relation to insurance of mortgaged land. It should
also be made explicit that any insurance money received in respect of the
mortgaged land may be required by the mortgagee to be applied in discharge of
the mortgage debt.[804]
On that basis the section should be replaced with substantial amendment.
Section 24: This
relates to receivers appointed by mortgagees and should be recast as
recommended earlier.[805]
It is also recommended that the order of payments laid down in subsection (8)
should be mandatory, [806] unless the mortgagee or mortgagees, where there are
several, agree otherwise. On that basis the section should be replaced
with substantial amendment.
Section 26: The form
of statutory mortgage set out in the Third Schedule is never used in practice
and there seems to be no point in keeping this provision. The section and
Third Schedule should be repealed without replacement.
Section 27: The
forms referred to here are also never used and so this section should be repealed
without replacement.
Sections 28 and 29: These
sections relate to the forms in the Third Schedule and should also be repealed
without replacement.
Section 61: This
contains a useful statutory provision rendering it unnecessary to include an
express “joint account” clause in a mortgage involving more than one mortgagee.[807]
It should be replaced without substantial amendment.
(b)
Conveyancing Act 1882[808]
The only section of this Act which relates to
mortgages is section 12, which amends section 15 of the 1881 Act. Like
section 15[809]
it should be replaced without substantial amendment.
(c)
Conveyancing Act 1911[810]
This Act contains several provisions relating to
mortgages which merit consideration.
Section 3: This
section supplements section 18 of the 1881 Act and should be incorporated in
the amended version of it.[811]
It should also be replaced with substantial amendment.
Section 4: This
section supplements section 19 of the 1881 Act, so far as it relates to the
mortgagee’s power of sale, and should be incorporated in the new version of
section 19.[812]
It should be replaced without substantial amendment.
Section 5: This
section supplements section 21 of the 1881 Act and should be incorporated in
the new version of it.[813]
It should be replaced without substantial amendment.
Section 9: This is
a somewhat obscure provision dealing with the situation where settled or trust
property is used as security for a loan and the mortgagor’s equity of
redemption becomes barred under the Statute of Limitations 1957.[814]
This will arise where the mortgagee takes and remains in possession of the
mortgaged land without acknowledging the mortgagor’s title or receiving any
payments of capital or interest. This is a principle of highly
questionable validity. First, it seems inconsistent with the notion that
the mortgagee should not exercise any remedies except to protect or enforce its
security.[815]
Secondly, like foreclosure, it may result in the mortgagee acquiring an asset
worth considerably more than the mortgage debt, plus interest. The
inherent unfairness of this is why the Irish courts have refused to grant an
order for foreclosure for several centuries.[816] Thirdly, it is also difficult to
reconcile the principle with another well-established principle of the law of
mortgages that a mortgagee in possession is liable to account strictly to the
mortgagor.[817]
It is recommended that it should no longer be possible for a mortgagee to bar
the mortgagor’s title by taking possession of the mortgaged land and, on that
basis, section 9 should be repealed without replacement.
Section 13: This
section relates to investigation of title and is designed to relieve a
purchaser from an obligation to investigate why a transfer of a mortgage has
been stamped with a fixed rate of duty only.[818] This is a principle of wider
application[819]
and the new legislation should enshrine the wider principle. On that
basis section 13 should be replaced with substantial amendment.
9.25
The Commission
provisionally recommends that the following statutes should be repealed without
replacement:
Clandestine Mortgages Act (Ireland) 1667
Satisfied Terms Act 1845
Mortgagees Legal Costs Act 1895
9.26
The Commission
provisionally recommends that the provisions relating to mortgages in the Conveyancing Act 1881 should
be amended and in some cases without replacement.
9.27
The Commission
provisionally recommends that the Conveyancing
Act 1882 section 12 should be replaced without substantial amendment.
9.28
The Commission
provisionally recommends that the provisions relating to mortgages in the Conveyancing Act 1911 should
be amended.
Chapter 10
JUDGMENT MORTGAGES
10.01
The special method of enabling a judgement creditor to recover the
judgment debt by registering a judgment mortgage against the debtor’s land
introduced by the Judgement Mortgage (Ireland) Acts 1850 and 1858[820]
was reviewed recently by the Law Reform Commission. The resultant
Consultation Paper[821]
recommended a radical overhaul of those statutory provisions and the new
legislation should incorporate the recommendations. The consequence of
this would be that the 1850 and 1858 Acts should be replaced with substantial
amendments.
10.02
The Commission
provisionally recommends that the Judgement
Mortgage (Ireland) Acts 1850 and 1858 should be
replaced with substantial amendment in line with the recommendations outlined
in its Consultation Paper on Judgment Mortgages (LRC CP 30-2004).
10.03
Two further matters merit consideration. One relates to the
decision in AS v GS and AIB[822]and concerns the issue as to what prior
“equities” or “rights” a judgment mortgagee, as a volunteer,[823] should take subject. Geoghegan J
suggested in that case that, where the prior claimant does not already have an
established equitable interest in the land and the land is not a family home,[824]
a claim should not be treated as creating a prior equity or right subject to
which a creditor subsequently registering a judgment mortgage should take,
unless the prior claim lodged in court specifically seeks an order against the
land in question. It is recommended that this suggestion be given
statutory recognition.
10.04
The Commission
provisionally recommends that the suggestion in AS v GS and AIB relating to
prior equities should be given statutory recognition.
10.05
Another method of enforcing a debt against land is the seizure of
leasehold land by the sheriff.[825] This matter was reviewed by the
Law Reform Commission some time ago, in which it was concluded that it was not
a very effective means of enforcement and rarely used.[826] Having to make searches in the
Sheriff’s Office adds to the complications of conveyancing practice[827]
and so it is recommended that this method of enforcing debts against land be
abolished.
10.06
The Commission
provisionally recommends that seizure of leasehold land by the sheriff as a
method of enforcing debts against land should be abolished.
Chapter 11
REGISTRATION OF DEEDS
11.01
The statutes relating to the operation of the Registry of Deeds remain
those enacted in the 18th and 19th centuries.[828]
They are couched in archaic language and provide for many practices and
procedures which are inconsistent with the increasingly computerised operation
of the Registry today. The old legislation clearly needs recasting in
modern form and the draft Registration of Deeds and Titles Bill included
in the Government’s Legislation Programme published on 28 September 2004 will
aim to do just that.
11.02
The Commission
provisionally recommends that the old legislation relating to registration of
deeds should be recast in modern form.
11.03
The 2004 Bill will make provision for various procedural matters
relating to registration of deeds to be dealt with by regulations. It is
recommended that such regulations should aim at greatly simplifying the current
requirements, such as those relating to memorials and their execution.
One way of doing this would be to have a statutory form of the necessary
information for registration purposes, which could comprise the first page of
deeds. The complications over execution of memorials, and witnessing, should
be removed, so that simplifications recommended for execution of deeds should
apply also to memorials.[829]
11.04
The Commission
provisionally recommends that regulations should aim to simplify greatly the
current requirements governing procedural matters, such as those relating to
memorials and their execution.
11.05
A consequence of the enactment of the draft Bill included in the
Government’s recently announced programme[830] would be that the following pre-1922
statutes would be replaced with substantial amendment:
Registration of
Deeds Act (Ireland) 1707[831]
Registration of
Deeds Act (Ireland) 1709[832]
Registration of
Deeds (Amendment) Act (Ireland) 1721[833]
Registration of
Deeds (Amendment) Act (Ireland) 1785[834]
Registry of
Deeds (Ireland) Act 1822[835]
Registry of
Deeds (Ireland) Act 1832[836]
Land Transfer
(Ireland) Act 1848[837]
Registration of
Deeds (Ireland) Act 1864[838]
Registry of
Deeds (Ireland) Act 1875[839]
Chapter 12
ADVERSE POSSESSION
12.01
The law of adverse possession, which governs how a “squatter” can
acquire title to land, is now enshrined in a relatively modern statute, the Statute
of Limitations 1957.[840]
The issue of pre-1922 statutes does not, therefore, arise. However, this
subject does play an important role in land law and conveyancing law, as its
application is often a key factor in determining the title to land.[841]
12.02
The operation of adverse possession was recently reviewed by the Law
Reform Commission and the resultant Report recommended fundamental changes.[842]
The new legislation should implement those recommendations.[843]
12.03
The Commission
provisionally recommends that the Report
on Title by Adverse Possession of Land (LRC 67-2002) should be implemented.
12.04
The opportunity should be taken to implement also other recommendations
relating to adverse possession contained in an earlier Report issued by the Law
Reform Commission. These relate to:-
(i)
Amending the 1957 Statute to provide that the intention of the dispossessed
owner is not the decisive factor in determining if adverse possession has been
established;[844]
(ii)
Amending the 1957 Statute so as to abolish the distinction drawn by it between
tenancies from year to year created in writing and those created orally;[845]
(iii)
Amending the law governing claims involving a deceased person’s estate.[846]
12.05
The Commission
provisionally recommends that the opportunity should be taken to implement also
other recommendations relating to adverse possession contained in earlier
reports.
Chapter 13
MISCELLANEOUS MATTERS
13.01
This Chapter is
concerned with various miscellaneous matters to do with reform of the land law
and conveyancing law system, which do not fall naturally within the topics
dealt with in the previous chapters. They are concerned for the most part[847]
with the wider concept of general reform of the law rather than with
replacement of pre-1922 statutes. Most of the matters dealt with below
are ones which the Law Reform Commission has raised in previous reports.
A
Registration of Title
13.02
Notwithstanding that this subject is now governed by a relatively modern
statute, the Registration of Title Act 1964,[848] it has become clear that there are a
number of flaws in the drafting and a need for modernisation. Some of
these were referred to by the Law Reform Commission in previous Reports[849]
and the Registration of Deeds and Titles Bill included in the
Government’s recently announced Legislation Programme will seek to implement the
recommendations contained in those Reports and to introduce other changes.[850]
Given the key role which the Land Registry is likely to play in modernising
conveyancing practice, and, in particular, in an e-conveyancing system, it is
imperative that this Bill is enacted or, alternatively, it is recommended that
its provisions are incorporated in the legislation to implement the
recommendations in this Consultation Paper.
13.03
The Commission
provisionally recommends that various recommendations relating to the Land
Registry made in previous Commission Reports should be implemented.
B
Planning
13.04
Earlier Reports of the Law Reform Commission drew attention to problems
arising from the planning legislation. These concerned time-limits for
bringing enforcement action in respect of breaches of planning law, a critical
factor in purchaser’s enquiries,[851] and extending the jurisdiction of a
planning authority to land below the high water mark.[852] Notwithstanding the general seven
year time limit for enforcement proceedings now contained in the Planning
and Development Act 2000, non-conforming developments remain subject to
numerous disadvantages, such as a refusal of sewage and water connections.[853]
This means that the need to make planning enquiries relating to possible unauthorised
developments since 1 October 1964 remains, despite the increasing difficulties
in obtaining such information. Not least of such difficulties is the fact
that many planning authorities do not have complete or, indeed, have not
retained any records going that far back. The case for a planning
amnesty, similar to that relating to building byelaws introducted by section 22
of the Building Control Act 1990, is compelling.[854] It is recommended that urgent
consideration is given to the introduction of a planning amnesty.
13.05
The Commission provisionally recommends that urgent consideration
should be given to the introduction of a planning amnesty, to operate either 10
years after an unauthorised development has taken place or 10 years after the
expiration of a planning permission, the terms of which have not been complied
with.
C
Succession
13.06
Earlier Reports of the Commission drew attention to problems arising in
connection with the law of succession. Apart from those concerning claims
against a deceased person’s estate mentioned earlier,[855] these relate to vesting assents[856]
and the definition of “purchaser” in the Succession Act 1965.[857]
It is recommended that the recommendations contained in those earlier Reports
be implemented.
13.07
The Commission
provisionally recommends that recommendations relating to the law of succession
contained in earlier Reports should be implemented.
D
Family Home Protection Act 1976
13.08
An earlier Report of the Commission recommended that consent under the
1976 Act should no longer be required for execution of an assent by a personal
representative.[858]
It is recommended that this be implemented in the new legislation.
13.09
An earlier Report
of the Commission recommending that consent under the Family Home Protection Act 1976
should no longer be required for execution of an assent by a personal
representative should be implemented.
E
Merger
13.10
An earlier Report of the Commission recommended that a doctrine of
partial merger of a leasehold interest in the freehold reversion should be
introduced, to resolve problems which arise where a lessee acquires the fee
simple which is part of a “pyramid” title.[859] It is recommended that this be
implemented in the new legislation.
13.11
An earlier Report
of the Commission, recommending that a doctrine of partial merger of a
leasehold interest in the freehold reversion should be introduced, should be
implemented in the new legislation.
F
Drainage and Improvement of Land Legislation
13.12
During the 19th
century numerous statutes were enacted to promote the drainage and improvement
of land. In so far as these facilitated such works being carried out by
limited owners of land, they were superseded by the later general provisions
governing improvements contained in the Settled Land Acts 1882-90.[860]
Furthermore, there would be no need for such statutory provisions under the new
scheme for settlements of land which was recommended earlier, whereby the
trustees would have full powers of dealing with the land.[861] In so far as the pre-1922
statutes related to schemes carried out by the Commissioners of Public Works,
they are defunct because such schemes are nowadays carried out under post-1922
legislation, in particular the Arterial Drainage Acts 1945 and 1955.[862]
13.13
On that basis it is recommended that the pre-1922 statutes
relating to drainage and improvement of land should be repealed without
replacement. The statutes in question are:-
Drainage (Ireland) Act 1842[863]
Settled Estates Drainage Act 1845[864]
Drainage (Ireland) Act 1845[865]
Drainage (Ireland) Act 1846[866]
Landed Property Improvement (Ireland)
Act 1847[867]
Drainage (Ireland) Act 1847[868]
Landed Property Improvement (Ireland)
Act 1849[869]
Drainage Act 1850[870]
Improvement of Land (Ireland) Act 1850[871]
Landed Property Improvement (Ireland)
Act 1852[872]
Drainage and Improvement of Lands
(Ireland) Act 1853[873]
Drainage and Improvement of Lands
(Ireland) Act 1855[874]
Drainage (Ireland) Act 1856[875]
Landed Property Improvement (Ireland)
Act 1860[876]
Landed Property Improvement (Ireland)
Act 1862[877]
Land Drainage (Ireland) Act 1863[878]
Drainage and Improvement of Lands
(Ireland) Act 1863[879]
Drainage and Improvement of Lands
(Ireland) Act 1864[880]
Improvement of Land Act 1864[881]
Drainage and Improvement of Lands
Amendment (Ireland) Act 1865[882]
Landed Property Improvement (Ireland)
Act 1866[883]
Drainage and Improvement of Lands
(Ireland) Act 1866[884]
Drainage and Improvement of Lands
Amendment (Ireland) Act 1869[885]
Drainage and Improvement of Lands
Amendment (Ireland) Act 1872[886]
Drainage and Improvement of Lands
Amendment (Ireland) Act 1874[887]
Drainage and Improvement of Lands
(Ireland) Act 1878[888]
Drainage and Improvement of Lands
(Ireland) Act 1892[889]
Improvement of Land Act 1899[890]
G
Definitions
13.14
It was indicated earlier that the new legislation will have to contain
comprehensive definitions to supplement, eg, those contained in section
2 of the Conveyancing Act 1881.[891]
13.15
The Commission
provisionally recommends that the new legislation should contain a
comprehensive list of definitions, such as those contained in section 2 of the Conveyancing Act 1899.
H
Transitional Provisions
13.16
At the drafting stage of the Bill or Bills to implement the
recommendations contained in this Consultation Paper considerable thought
should be given to transitional provisions. These should be designed to
achieve so far as is practicable a smooth transition from the old law to the
new law. In particular, the need to refer back to the old law should be
kept to a minimum.
13.17
The Commission
provisionally recommends that at the drafting stage of the Bill or Bills to
implement the recommendations contained in this Consultation Paper,
considerable thoughs should be given to transitional provisions.
Chapter 14
SUMMARY OF RECOMMENDATIONS
14.01
The Commission provisionally recommends that the concept of tenure
should be abolished, and that old statutes relating to tenure should be
repealed, for the most part without replacement (paragraph 2.09):
(a)
Repeal without replacement
Forfeiture Act
(Ireland) 1639
Tenures
Abolition Act (Ireland) 1662
Copyhold Acts
1843-1887
Crown Private
Estates and Crown Lands Acts 1800-1913
(b)
Replace with substantial amendment
Quia Emptores 1290
14.02
The Commission
provisionally recommends that the concept of an estate in land should be
retained (paragraph 2.13).
14.03
The Commission provisionally recommends that it should be made clear in
the new legislation that a modified fee standing on its own does not attract
settlements legislation (paragraph 2.16).
14.04
The Commission provisionally recommends that it should be made clear
that the Landlord and Tenant (Ground Rents) Act 1978 prohibits the
creation of a ground rent by way of fee farm grant (paragraph 2.20).
14.05
The Commission provisionally recommends that the creation of new fee
farm grants should be prohibited. In future where it is desired to create
an arrangement whereby rent is payable, a lease should be used (paragraph
2.22).
14.06
The Commission provisionally recommends that the ground rents
legislation should be extended to enable all existing fee farm grantees to
redeem the rent (paragraph 2.24).
14.07
The Commission provisionally recommends that the Fee Farm Rents
(Ireland) Act 1851 should be repealed without replacement (paragraph 2.26).
14.08
The Commission provisionally recommends the abolition of the fee tail
estate and that the new legislation should bring about an automatic barring of
entails, with the same result as the tenant in tail could produce by executing
a fully effective disentailing deed under that Fines and Recoveries
(Ireland) Act 1834 (paragraph 2.29).
14.09
The Commission provisionally recommends that the Statute of
Westminster II 1285 (De Donis Conditionalibus) and the Fines and
Recoveries (Ireland) Act 1834 should be repealed without replacement
(paragraph 2.30).
14.10
The Commission provisionally recommends that, in future, a life estate
should create an equitable interest in land only (paragraph 2.32).
14.11
The Commission provisionally recommends that, in the interests of
simplification, the future creation of certain leases, including a simple lease
for lives with or without any term of years attached, should be prohibited (paragraph
2.36).
14.12
The Commission provisionally recommends that the following statutes
should be repealed without replacement (paragraph 2.37):-
Life Estates Act
(Ireland) 1695
Timber Act
(Ireland) 1767, section 11
Leases for Lives
Act (Ireland) 1777,
section 11
Tenantry Act
(Ireland) 1779
Renewal of
Leases (Ireland) Act 1838
Renewable
Leasehold Conversion Act 1849
Renewable
Leaseholds Conversion (Ireland) Act 1868
Chapter 3 Future Interests
14.13
The Commission provisionally recommends that the Law Reform Commission Report
on the Rule Against Perpetuities and Cognate Rules should be implemented
(paragraph 3.01) subject to the qualification that the common law contingent
remainder rules should be abolished (paragraph 3.04).
14.14
The Commission provisionally recommends that several pre-1922 statutes
should be repealed without replacement. These are (paragraph
3.05):-
Real Property
Act 1845,
section 8
Law of Property
Amendment Act 1860,
section 7
Contingent
Remainders Act 1877
Accumulations
Act 1892
Conveyancing Act
1911,
section 6
Chapter 4 Settlements and Trusts of Land
14.15
The Commission provisionally recommends that certain pre-1922 statutes
conferring leasing powers should be repealed without replacement. These are
(paragraph 4.04):-
Ecclesiastical
Lands Act (Ireland) 1634
Mining Leases
Act (Ireland) 1723
Timber Act
(Ireland) 1735
Mining Leases
Act (Ireland) 1741
Mining Leases
Act (Ireland) 1749
Hospitals Act
(Ireland) 1761
Timber Act
(Ireland) 1765
County Hospitals
Act (Ireland) 1765
County Hospitals
Act (Ireland) 1767
Timber Act
(Ireland) 1767
Timber Act
(Ireland) 1775
County Hospitals
Act (Ireland) 1777
Timber Act
(Ireland) 1777
Leases for Lives
Act (Ireland) 1777
Leases by
Schools Act (Ireland) 1781
Timber Act
(Ireland) 1783
Leases by
Schools Act (Ireland) 1785
Leases for Corn
Mills Act (Ireland) 1785
Timber Act
(Ireland) 1791
Ecclesiastical
Lands Act (Ireland) 1795
Leases for
Cotton Manufacture Act (Ireland) 1800
Mines (Ireland)
Act 1806
School Sites
(Ireland) Act 1810
Mining Leases
(Ireland) Act 1848
Leases for Mills
(Ireland) Act 1851
Trinity College,
Dublin, Leasing and Perpetuity Act 1851
Leasing Powers
Act for Religious Worship in Ireland Act 1855
Limited Owners
Residences Act 1870
Limited Owners
Residences Act (1870) Amendment Act 1871
Leasing Powers
Amendment Act for Religious Purposes in Ireland Act 1875
Limited Owners
Reservoirs and Water Supply Further Facilities Act 1877
Leases for
Schools (Ireland) Act 1881
14.16
The Commission provisionally recommends that legislation relating to the
Landed Estates Court should be repealed without replacement. The
Commission provisionally recommends the repeal of (paragraph 4.08):
Landed Estates Court
(Ireland) Act 1858
Landed Estates
Court (Ireland) Act 1861
14.17
The Commission provisionally recommends the repeal without replacement
of the following (paragraph 4.10):
Settled Land
(Ireland) Act 1847
Settled Estates
Act 1877
14.18
The Commission provisionally recommends that a new scheme involving all
forms of settlements operating as a trust of land, with the trustees having the
powers of dealing with it of an absolute owner should be introduced (paragraph
4.14).
14.19
The Commission provisionally recommends that the holder of a modified
fee that is vested, without any limitations over in favour of other successive
parties, should continue to hold the legal title to the land, rather than under
trustees in whom that title would be vested. It is recommended that the
same rule should apply in other cases where a person holds the substantial (fee
simple) interest in the land subject only to minor interests or charges, such
as an annuity in favour of someone else. The new scheme would also apply
only where a right of residence is exclusive and relates to the whole of the
land in question. The new statutory scheme should not apply to land held
for charitable or other public purposes (paragraph 4.18).
14.20
The Commission provisionally recommends that the new legislation should
provide a “fall-back” provision in case no express nomination of trustees is
made in a particular case (paragraph 4.20).
14.21
The Commission provisionally recommends that a key feature of the
recommended new statutory scheme should be that the trustees would have the
full power of dealing with the land that an absolute (as opposed to a limited)
owner has. This should, however, be regarded as essentially a “default”
position, so that, in accordance with the general law of trusts, it should be
open to a settlor to impose restrictions on those powers in a particular case.
The trustees should be obliged to consider the interests of the beneficiaries
in exercising their powers (paragraph 4.22).
14.22
The Commission provisionally recommends that the new statutory scheme
should contain very clear provisions concerning the position of third parties
dealing with the trustees in exercise of their powers. Generally, in the
absence of fraud or other improper conduct, a purchaser from the trustees
should be protected (paragraph 4.24).
14.23
The Commission provisionally recommends that the new statutory scheme
should contain an effective mechanism for resolution of disputes between the
beneficiaries and trustees. The most appropriate method would be to
permit any person interested in the trust and the trust land, including both
the trustees and the beneficiaries, to apply to the court for an appropriate
order to resolve the dispute (paragraph 4.26).
14.24
The Commission provisionally recommends that, as a consequence of
enactment of the proposed new statutory scheme, the following pre-1922 statutes
should be replaced with substantial amendment (paragraph 4.27):-
Settled Land Act
1882
Settled Land Act
1884
Settled Land
Acts (Amendment) Act 1887
Settled Land Act
1889
Settled Land Act
1890
Conveyancing Act
1911, section 10
Chapter 5 Powers of Appointment
14.25
The Commission provisionally recommends that a provision similar to
section 158 of the English Law of Property Act 1925 should be adopted so
as to replace the Illusory Appointments Act 1830 and the Powers of
Appointment Act 1874 without substantial amendment (paragraph 5.05).
14.26
The Commission provisionally recommends that a donee of a
non-testamentary power should only have to meet the requirements for valid
execution of a deed (paragraph 5.07).
14.27
The Commission provisionally recommends that section 52 of the Conveyancing
Act 1881 should be replaced without substantial amendment, subject to the
inclusion of an express exception of powers in the nature of a trust and
fiduciary powers (paragraph 5.09).
14.28
The Commission provisionally recommends that the general right of donees
of powers of appointment to disclaim the power under section 6 of the Conveyancing
Act 1882 should be replaced without substantial amendment (paragraph 5.11).
Chapter 6 Co-Ownership
14.29
The Commission provisionally recommends that there should be no
prohibition on the creation of legal tenancies in common (paragraph 6.05).
14.30
The Commission provisionally recommends that its previous
recommendations relating to the severance of joint tenancies and commorientes
should be implemented (paragraphs 6.09).
14.31
The Commission provisionally recommends that the Partition Acts 1868 and
1876 should be replaced with substantial amendment with a view to their
simplification, and that the Acts should no longer apply to judgment mortgages
(paragraph 6.12).
14.32
The Commission provisionally recommends that section 23 of the Administration
of Justice Act (Ireland) 1707 should be replaced without substantial
amendment in the new legislation (paragraph 6.14).
14.33
The Commission provisionally recommends that the Bodies Corporate
(Joint Tenancy) Act 1899 should be replaced without substantial amendment
(paragraph 6.16).
14.34
The Commission provisionally recommends that in future any claim to an
equitable interest in land should be unenforceable against a purchaser or
mortgagee of the land unless it has been protected by prior registration in the
Land Registry or Registry of Deeds, as appropriate (paragraph 6.20).
14.35
The Commission provisionally recommends that the Commons Acts
(Ireland) 1789 and 1791 should be replaced without substantial
amendment in the new legislation (paragraph 6.22).
14.36
The Commission provisionally recommends that the new legislation should
contain a modern version of the Boundaries Act (Ireland) 1721 dealing
with neighbouring parties’ rights in respect of party walls or other structures
dividing their respective properties (paragraph 6.24).
14.37
The Commission provisionally recommends that legislation should be
enacted to resolve disputes between neighbouring owners by enabling an owner to
obtain a court “access” order where appropriate (paragraph 6.26).
Chapter 7
Appurtenant Rights
14.38
The Commission provisionally recommends that pre-1922 statutes relating
to tithe rentcharges should be repealed without replacement. These are
(parapgrah 7.06):-
Tithes Act 1835
Tithe Rentcharge
(Ireland) Act 1838
Tithe Arrears
(Ireland) Act 1839
Tithe Rentcharge
(Ireland) Act 1848
14.39
The Commission provisionally recommends that the Plus Lands Act
(Ireland) 1703 should be repealed without replacement (paragraph 7.09).
14.40
The Commission provisionally recommends that the future creation of
rentcharges should be prohibited, but without prejudice to statutory
rentcharges (paragraph 7.12).
14.41
The Commission provisionally recommends that the Chief Rents
Redemption Act (Ireland) 1864 and section 5 of the Conveyancing Act 1881
as amended by section 1 of the Conveyancing Act 1911 should be repealed
without replacement (paragraph 7.14).
14.42
The Commission provisionally recommends that (paragraph 7.16):
(i) section 10 of the Law
of Property Amendment Act 1859 should be replaced without substantial
amendment subject to the recommendation that it should be made explicit that
where a rentcharge is partially released, the amount not released remains
charged on the entire land, unless it is apportioned to part of the land only
by the parties;
(ii) sections 27 and 28
of the Law of Property Amendment Act 1859 should be replaced without
substantial amendment so as to allow personal representatives to be protected
in the distribution of a deceased’s land subject to the payment of a rent;
(iii) the provisions of
section 44 of the Conveyancing Act 1881 should be replaced without
substantial amendment subject to deletion of references to the right of
distress. The Commission also recommends the repeal of section 6 of the Conveyancing
Act 1911 without replacement.
14.43
The Commission provisionally recommends that the Report on the
Acquisition of Easements and Profits ŕ Prendre by Prescription (LRC
66-2002) should be implemented and that the Prescription Act 1832 and
the Prescription (Ireland) Act 1858 should be replaced with substantial
amendment (paragraph 7.19).
14.44
The Commission provisionally recommends that the requirement that words
of limitation be used upon the express creation or express transfer of
easements appurtenant to registered land should be removed as part of the
general removal of the need for words of limitation in deeds generally
(paragraph 7.21).
14.45
The Commission provisionally recommends that the Rule in Wheeldon v
Burrows should be abolished and that, in future, a claim to an easement or
profit by way of implied grant should be based solely on the doctrine of
non-derogation from grant. The legislation should provide that there
should be implied, in favour of a grantee of land, any easement or profit ŕ
prendre which it is reasonable to assume, in all the circumstances of the case,
would have been within the contemplation of the parties as being included in
the grant, had they adverted to the matter (paragraph 7.23).
14.46
The Commission provisionally recommends that section 6 of the Conveyancing
Act 1881 should be replaced with substantial amendment so as to make it
explicit that section 6 cannot be used to enlarge what was previously a purely
informal arrangement, such as a revocable licence personal to the licensee,
into a full legal easement (paragraphs 7.25 and 7.27).
14.47
The Commission provisionally recommends that Chapter 1 of the Report
on Land Law and Conveyancing Law: (7) Positive Covenants over Freehold Land and
Other Proposals (LRC 70-2003) relating to freehold covenants should be
implemented (paragraph 7.30).
14.48
The Commission provisionally recommends that section 11 of the Conveyancing
Act 1911, should be repealed without replacement (paragraph 7.32).
Chapter 8 Contracts and Conveyances
14.49
The Commission provisionally recommends that section 2 of the Statute
of Frauds (Ireland) 1695 should be replaced without substantial amendment
(paragraph 8.05).
14.50
The Commission provisionally recommends that (paragraph 8.07):
(i) the decision in Tempany
v Hynes be reversed and that the “orthodox” position be restored, whereby a
binding contract for the sale of land will transfer the entire beneficial
interest to the purchaser;
(ii) the rule in Bain
v Fothergill should be abolished;
(iii) legislation
should be implemented to abolish the consents required for certain transactions
under the Land Act 1965;
(iv) its proposals in
relation to section 23 of the Registration of Title Act 1964 be
implemented;
(v) a power to make
regulations by statutory instrument concerning contracts for and conditions of
sale should be included in the new legislation.
14.51
The Commission provisionally recommends that the provisions of the Sale
of Land by Auction Act 1867 should be recast in a simpler form. It
is also recommended that the provisions relating to court sales and re-opening
of biddings should be dealt with by rules of court. Subject to that the 1867
Act should be replaced without substantial amendment (paragraph 8.09).
14.52
The Commission provisionally recommends that the statutory period of
title that needs to be shown on an open contract should be reduced from 40 to
20 years (paragraph 8.12).
14.53
The Commission provisionally recommends that section 2 of the Vendor
and Purchaser Act 1874, and sections 3 and 13 of the Conveyancing Act
1881 be modified to allow the purchaser of a lease or of leasehold property
to insist upon the vendor producing more evidence of title than these sections
provide for (paragraph 8.14).
14.54
The Commission provisionally recommends that the rule in Patman v
Harland should be abolished (paragraph 8.16).
14.55
The Commission provisionally recommends that section 9 of the Vendor
and Purchaser Act 1874 in relation to a vendor and purchaser summons should
be examined by the Court Rules Committee to assess whether it could be made
more efficient for parties (paragraph 8.18).
14.56
The Commission provisionally recommends that the Statute of Uses
(Ireland) 1634 should be repealed without replacement (parapgraph 8.21).
14.57
The Commission provisionally recommends that sections 1-5 of the Conveyancing
Act (Ireland) 1634 as amended by the Voluntary Conveyances Act 1893 should
be replaced with substantial amendment (paragraph 8.23).
14.58
The Commission provisionally recommends the repeal without replacement
of sections 10, 11 and 14 of the Conveyancing Act (Ireland) 1634 (paragraph
8.25).
14.59
The Commission provisionally recommends that sections 2, 4 and 6 of the Maintenance
and Embracery Act (Ireland) 1634 should be repealed without replacement
(paragraph 8.28).
14.60
The Commission provisionally recommends that the simple deed should
become the only method of conveying or transferring land pending the
introduction of electronic methods under an e-conveyancing system (paragraph
8.31).
14.61
The Commission provisionally recommends that section 2 of the Real
Property Act 1845 should be replaced with substantial amendment so as to
overhaul the requirements for valid creation or execution of deeds, including
the requirements in relation to foreign corporate bodies dealing with land in
the State (paragraph 8.33).
14.62
The Commission provisionally recommends that section 3 of the Real
Property Act 1845 should be replaced without substantial amendment.
Similarly, the Commission provisionally recommends that section 4 of the same
Act should be replaced without substantial amendment. Section 6, should also be
replaced without substantial amendment. Section 5 should be replaced with
substantial amendment to resolve a number of doubts (paragraph 8.35).
14.63
The Commission provisionally recommends that section 21 of the Law of
Property Amendment Act 1859, as one of a number of provisions designed to
enable a person to transfer property to himself and another should be
consolidated into a general provision governing such transactions, so that it
would be replaced without substantial amendment. The Commission also
recommends that section 24 of the 1859 Act should be recast in much more simple
form and language, but otherwise be replaced without substantial amendment
(paragraph 8.37).
14.64
The Commission provisionally recommends that Section 10 of the Law of
Property Amendment Act 1860 should be repealed without replacement
(paragraph 8.39).
14.65
The Commission provisionally recommends that the Sale of Reversions
Act 1867 should be repealed without replacement (paragraph 8.41).
14.66
The Commission provisionally recommends that amendments should be made
to sections 2, 3, 4, 5, 6, 7, 8, 9, 41, 42, 43, 49, 50, 51, 52, 53, 54, 55, 56,
57, 58, 59, 60, 62, 63, 64, 66, 67, 69 and 70 of the Conveyancing Act 1881.
In some cases the amendment will be without replacement (paragraph 8.44).
14.67
The Commission provisionally recommends that:
(i) section 3 of the Conveyancing
Act 1882 which deals with the doctrine of notice should be replaced without
substantial amendment;
(ii) section 4 of the Conveyancing
Act 1882, which states that a contract for a lease (as opposed to the lease
itself) is not part of the title to be deduced by a vendor, should be replaced
without substantial amendment (paragraph 8.45).
Chapter 9 Mortgages
14.68
The Commission provisionally recommends that legislation should
prescribe that in future the only method of creating a legal mortgage of
unregistered land is to be by a charge, to operate in the same way as a charge
of registered land (paragraph 9.06).
14.69
The Commission provisionally recommends that the existing methods of
creating equitable mortgages should be retained (paragraph 9.08).
14.70
The Commission provisionally recommends that there be no statutory
interference with equitable jurisdiction to control the terms and operation of
mortgages (paragraph 9.10).
14.71
The Commission provisionally recommends that the operation of the Consumer
Credit Act 1995 in relation to land mortgages should be kept under review
(paragraph 9.12).
14.72
The Commission provisionally recommends that, in future, the remedies
available to mortgagees should be based firmly on the security interest of the
mortgagee and should not be exercisable unless and until it becomes necessary
to protect that security or to realise it in order to obtain repayment of the
outstanding debt, including interest (paragraph 9.15).
14.73
The Commission provisionally recommends:
(i) that the remedy of
foreclosure should be abolished;
(ii) that the right to
take possession should no longer be exercisable unless and until it becomes
necessary to protect or realise the mortgagee’s security. Furthermore, it
should not be exercised unless prior written notice is given to the mortgagor,
except where emergency circumstances justify speedier action.
(iii) that: (1) it
should be made clear in the new legislation that a purchaser is not obliged to
enquire as to whether the mortgagee has met the statutory requirements and will
obtain a good title from a selling mortgagee unless there is actual knowledge
of an irregularity; (2) the mortgagor should be entitled to seek a court order
requiring the mortgagee to proceed with the sale, or to postpone it because of
the state of the market and to let it in the meantime, thereby enabling the
mortgagor to reduce the debt exposure; (3) the statutory duty to obtain the
best price reasonably obtainable on a sale imposed on building societies
should be extended to all mortgagees;
(iv) that (1) where the
statutory power is invoked, it should be possible for a mortgagee to waive the
benefit of the payments schedule set out in the legislation; (2) it should be
made clear in the legislation that the same duty of care applies where a
receiver sells the land on behalf of the mortgagee and that the use of a
receiver cannot be a method of getting round restrictions on the power of sale
(paragraph 9.17).
14.74
The Commission provisionally recommends that:
(i) the issue of a charge certificate upon the
mortgage of registered land should be abandoned;
(ii) Welsh mortgages should be prohibited by the new
legislation;
(iii) tacking in the form of tabula in naufragio
should be abolished, but this should not affect the other form of tacking which
is much used in practice, tacking of further advances;
(iv) pending the introduction of an e-conveyancing
system, the method of discharge of mortgages of unregistered land by endorsed
receipt initially introduced for building society mortgages, and later extended
to all mortgages should be preserved in the new legislation (paragraph 9.19).
14.75
The Commission provisionally recommends that the following statutes
should be repealed without replacement (paragraph 9.25):
Clandestine
Mortgages Act (Ireland) 1667
Satisfied Terms Act
1845
Mortgagees Legal
Costs Act 1895
14.76
The Commission provisionally recommends that the provisions relating to
mortgages in the Conveyancing Act 1881 should be amended and in some
cases without replacement (paragraph 9.26).
14.77
The Commission provisionally recommends that the Conveyancing Act
1882 section 12 should be replaced without substantial amendment (paragraph
9.27).
14.78
The Commission provisionally recommends that the provisions relating to
mortgages in the Conveyancing Act 1911 should be amended (paragraph
9.28).
Chapter 10 Judgment
Mortgages
14.79
The Commission provisionally recommends that the Judgement Mortgage
(Ireland) Acts 1850 and 1858 should be replaced with
substantial amendment in line with the recommendations outlined in its Consultation
Paper on Judgment Mortgages (LRC CP 30-2004) (paragraph 10.02).
14.80
The Commission provisionally recommends that the suggestion in AS v
GS and AIB relating to prior equities should be given statutory recognition
(paragraph 10.04).
14.81
The Commission provisionally recommends that seizure of leasehold land
by the sheriff as a method of enforcing debts against land should be abolished
(paragraph 10.06).
Chapter 11 Registration of Deeds
14.82
The Commission provisionally recommends that the old legislation
relating to registration of deeds should be recast in modern form (paragraph
11.02).
14.83
The Commission provisionally recommends that regulations should aim to
simplify greatly the current requirements governing procedural matters, such as
those relating to memorials and their execution (paragraph 11.04).
14.84
The Commission provisionally recommends that the following pre-1922
statutes be replaced with substantial amendment (paragraph 11.05):
Registration of
Deeds Act (Ireland) 1707
Registration of
Deeds Act (Ireland) 1709
Registration of
Deeds (Amendment) Act (Ireland) 1721
Registration of
Deeds (Amendment) Act (Ireland) 1785
Registry of
Deeds (Ireland) Act 1822
Registry of
Deeds (Ireland) Act 1832
Land Transfer
(Ireland) Act 1848
Registration of
Deeds (Ireland) Act 1864
Registry of
Deeds (Ireland) Act 1875
Chapter 12 Adverse Possession
14.85
The Commission provisionally recommends that the Report on Title by
Adverse Possession of Land (LRC 67-2002) should be implemented (paragraph
12.03).
14.86
The Commission provisionally recommends that the opportunity should be
taken to implement also other recommendations relating to adverse possession
contained in earlier Reports (paragraph 12.05).
Chapter 13 Miscellaneous Matters
14.87
The Commission provisionally recommends that various recommendations
relating to the Land Registry made in previous Commission Reports should be
implemented (paragraph 13.03).
14.88
The Commission provisionally recommends that urgent consideration should
be given to the introduction of a planning amnesty, to operate either 10 years
after an unauthorised development has taken place or 10 years after the
expiation of planning permission, the terms of which have not been complied
with (paragraph 13.05).
14.89
The Commission provisionally recommends that recommendations relating to
the law of succession contained in earlier Reports should be implemented
(paragraph 13.07).
14.90
An earlier Report of the Commission recommending that consent under the Family
Home Protection Act 1976 should no longer be required for execution of an
assent by a personal representative should be implemented (paragraph 13.09).
14.91
An earlier Report of the Commission, recommending that a doctrine of
partial merger of a leasehold interest in the freehold reversion should be
introduced, should be implemented in the new legislation (paragraph 13.11).
14.92
The Commission provisionally recommends that the pre-1922 statutes
relating to drainage and improvement of land should be repealed without
replacement. These are (paragraph 13.13):-
Drainage
(Ireland) Act 1842
Land
Drainage Act 1845
Drainage
(Ireland) Act 1845
Drainage
(Ireland) Act 1846
Landed
Property Improvement (Ireland) Act 1847
Drainage
(Ireland) Act 1847
Landed
Property Improvement (Ireland) Act 1849
Drainage
Act 1850
Improvement
of Land (Ireland) Act 1850
Landed
Property Improvement (Ireland) Act 1852
Drainage
and Improvement of Lands (Ireland) Act 1853
Drainage
and Improvement of Lands (Ireland) Act 1855
Drainage
(Ireland) Act 1856
Landed
Property Improvement (Ireland) Act 1860
Landed
Property Improvement (Ireland) Act 1862
Land
Drainage (Ireland) Act 1863
Drainage
and Improvement of Lands (Ireland) Act 1863
Drainage
and Improvement of Lands (Ireland) Act 1864
Improvement
of Land Act 1864
Drainage
and Improvement of Lands Amendment (Ireland) Act 1865
Landed
Property Improvement (Ireland) Act 1866
Drainage
and Improvement of Lands (Ireland) Act 1866
Drainage
and Improvement of Lands Amendment (Ireland) Act 1869
Drainage and
Improvement of Lands Amendment (Ireland) Act 1872
Drainage and
Improvement of Lands Amendment (Ireland) Act 1874
Drainage and
Improvement of Lands (Ireland) Act 1878
Drainage and
Improvement of Lands (Ireland) Act 1892
Improvement of
Land Act 1899
14.93
The Commission provisionally recommends that the new legislation should
contain a comprehensive list of definitions, such as those contained in section
2 of the Conveyancing Act 1899 (paragraph 13.15).
14.94
The Commission provisionally recommends that at the drafting stage of
the Bill or Bills to implement the recommendations contained in this
Consultation Paper, considerable thought should be given to transitional
provisions (paragraph 13.17).
APPENDIX
A
LISTINGS OF PRE-1922
STATUTES
Repeal
Without Replacement
1285
Statute of Westminster II (De Donis Conditionalibus)
1634
Ecclesiastical Lands Act (Ireland) (10 & 11 Chas 1, c 3)
1634
Statute of Uses (Ireland) (10 Chas 1, sess 2 c 1)
1634
Conveyancing Act (Ireland) (10 Chas 1, sess 2 c 3), sections 10, 11, and 14
1634
Maintenance and Embracery Act (Ireland) (10 Chas 1, sess 3 c 15), sections 2,
4, and 6
1639
Forfeiture Act (Ireland) (15 Chas 1 sess 2 c 3)
1662
Tenures (Abolition) Act (Ireland) (14& 15 Chas 2 sess 4 c1 9)
1667
Clandestine Mortgages Act (Ireland) (9 Will 3 c 11)
1695
Life Estates Act (Ireland) (7 Will 3 c 8)
1703
Plus Lands Act (Ireland) (2 Anne c 8)
1723
Mining Leases Act (Ireland) (10 Geo 1 c 5)
1735
Timber Act (Ireland) (9 Geo 2 c 7)
1741
Mining Leases Act (Ireland) (15 Geo 2 c 10)
1749
Mining Leases Act (Ireland) (23 Geo 2 c 9)
1761
Hospitals Act (Ireland) (1 Geo 3 c 8)
1765
Timber Act (Ireland) (5 Geo 3 c 17)
1765
County Hospitals Act (Ireland) (5 Geo 3 c 20)
1767
County Hospitals Act (Ireland) (7 Geo 3 c 8)
1767
Timber Act (Ireland) (7 Geo 3 c 20)
1775
Timber Act (Ireland) (15 & 16 Geo 3 c 26)
1777
County Hospitals Act (Ireland) (17 & 18 Geo 3 c 15)
1777
Timber Act (Ireland) (17 & 18 Geo 3 c 35)
1777
Leases for Lives Act (Ireland) (17 & 18 Geo 3 c 49)
1779
Tenantry Act (Ireland) (19 & 20 Geo 3 c 30)
1781
Leases by Schools Act (Ireland) (21 & 22 Geo 3 c 27)
1783
Timber Act (Ireland) (23 & 24 Geo 3 c 39)
1785
Leases by Schools Act (Ireland) (25 Geo 3 c 55)
1785
Leases for Corn Mills Act (Ireland) (25 Geo 3 c 62)
1791
Timber Act (Ireland) (31 Geo 3 c 40)
1795
Ecclesiastical Lands Act (Ireland) (35 Geo 3 c 23)
1800
Crown Private Estate Act (39 & 40 Geo 3 c 88)
1800
Leases for Cotton Manufacture Act (Ireland) (40 Geo 3 c 90)
1806
Mines (Ireland) Act (46 Geo 3 c 71)
1810
School Sites (Ireland) Act (50 Geo 3 c 33)
1819
Crown Lands Act (59 Geo 3 c 94)
1822
Crown Lands (Ireland) Act (3 Geo 4 c 63)
1825
Crown Lands Act (6 Geo 4 c 17)
1834
Fines and Recoveries (Ireland) Act (4 & 5 Will c 92)
1835
Tithes Act (5 & 6 Will 4 c 74)
1838
Renewal of Leases (Ireland) Act (1 & 2 Vic c 62)
1838
Tithe Rentcharge (Ireland) Act (1 & 2 Vic c 109)
1839
Tithe Arrears (Ireland) Act (2 & 3 Vic c 3)
1841
Crown Lands Act (5 Vic c 1)
1842
Drainage (Ireland) Act (5 & 6 Vic c 89)
1843
Copyhold Act (6 & 7 Vic c 23)
1844
Copyhold Lands Act (7 & 8 Vic c 55)
1845
Settled Estates Drainage Act (8 & 9 Vic c 56)
1845
Drainage (Ireland) Act (8 & 9 Vic c 69)
1845
Crown Lands Act (8 & 9 Vic c 99)
1845
Real Property Act (8 & 9 Vic c 106), section 8
1845
Satisfied Terms Act (8 & 9 Vic c 112)
1846
Drainage (Ireland) Act (9 & 10 Vic c 4)
1847
Landed Property Improvement (Ireland) Act (10 & 11 Vic c 32)
1847
Settled Land (Ireland) Act (10 & 11 Vic c 46)
1847
Drainage (Ireland) Act (10 & 11 Vic c 79)
1848
Mining Leases (Ireland) Act (11 & 12 Vic c 13)
1848
Tithe Rentcharges (Ireland) Act (11 & 12 Vic c 80)
1848
Crown Lands Act (11 & 12 Vic c 102)
1849
Landed Property Improvement (Ireland) Act (12 & 13 Vic c 59)
1849
Renewable Leasehold Conversion Act (12 & 13 Vic c 105)
1850
Drainage Act (13 & 14 Vic c 31)
1850
Improvement of Land (Ireland) Act (13 & 14 Vic c 113)
1851
Leases for Mills Act (14 & 15 Vic c 7)
1851
Fee Farm Rents (Ireland) Act (14 & 15 Vic c 20)
1851
Crown Lands Act (14 & 15 Vic c 42)
1851
Trinity College Dublin, Leases and Perpetuity Act (14 & 15 Vic cxxviii)
(Local and Personal Act)
1852
Landed Property Improvement (Ireland) Act (15 & 16 Vic c 34)
1852
Copyhold Act (15 & 16 Vic c 51)
1852
Crown Lands Act (15 & 16 Vic c 62)
1853
Crown Lands Act (16 & 17 Vic c 56)
1853
Drainage and Improvement of Lands (Ireland) Act (16 & 17 Vic c 130)
1855
Drainage and Improvement of Lands (Ireland) Act (18 & 19 Vic c 110)
1855
Leasing Powers Act for Religious Worship in Ireland (18 & 19 Vic c 39)
1856
Drainage (Ireland) Act (19 & 20 Vic c 62)
1858
Landed Estates Court (Ireland) Act (21 & 22 Vic c 72)
1858
Copyhold Act (21 & 22 Vic c 94)
1860
Law of Property Amendment Act (23 & 24 Vic c3 8), sections 7, 8 and 10
1860
Landed Property Improvement (Ireland) Act (23 & 24 Vic c 153)
1861
Landed Estates Court (Ireland) Act (24 & 25 Vic c 123)
1862
Landed Property Improvement (Ireland) Act (25 & 26 Vic c 29)
1862
Crown Private Estates Act (25 & 26 Vic c 37)
1863
Land Drainage (Ireland) Act (26 & 27 Vic c 26)
1863
Drainage and Improvement of Lands (Ireland) Act (26 & 27 Vic c 88)
1864
Drainage and Improvement of Lands (Ireland) Act (27 & 28 Vic c 72)
1864
Improvement of Land Act (27 & 28 Vic c 114)
1864
Chief Rents Redemption (Ireland) Act (27 & 28 Vic c 38)
1865
Drainage and Improvement of Lands Amendment (Ireland) Act (28 & 29 Vic c
52)
1866
Landed Property Improvement (Ireland) Act (29 & 30 Vic c 26)
1866
Drainage and Improvement of Lands (Ireland) Act (29 & 29 Vic c 40)
1866
Crown Lands Act (29 & 30 Vic c 62)
1867
Sales of Reversions Act (31 & 32 Vic c 4)
1868
Renewable Leaseholds Conversion (Ireland) Act (31 & 32 Vic c 62)
1869
Drainage and Improvement of Lands Amendment (Ireland) Act (32 & 33 Vic c
72)
1870
Limited Owners Residences Act (33 & 34 Vic c 56)
1871
Limited Owners Residences Act (1870) Amendment Act (34 & 35 Vic c 84)
1872
Drainage and Improvement of Lands Amendment (Ireland) Act (35 & 36 Vic c
31)
1873
Crown Lands Act (36 & 37 Vic c 36)
1873
Crown Private Estates Act (36 & 37 Vic c 61)
1874
Drainage and Improvement of Lands Amendment (Ireland) Act (37 & 38 Vic c
32)
1875
Leasing Powers Amendment Act for Religious Purposes in Ireland (38 & 39 Vic
c 11)
1877
Settled Estates Act (40 & 41 Vic c 18)
1877
Limited Owners Reservoirs and Water Supply Further Facilities Act (40 & 41
Vic c 31)
1877
Contingent Remainders Act (40 & 41 Vic c 33)
1878
Drainage and Improvement of Lands (Ireland) Act (41 & 42 Vic c 59)
1881
Conveyancing Act (44 & 45 Vic c 41), sections 4, 5, 8, 26, 27, 28, 29, 41,
49, 52, 57, 62, 66 and 69.
1881
Leases for Schools (Ireland) Act (44 & 45 Vic c 65)
1885
Crown Lands Act (48 & 49 Vic c 79)
1887
Copyhold Act (50 & 51 Vic c 73)
1892
Drainage and Improvement of Lands (Ireland) Act (55 & 56 Vic c 65)
1892
Accumulations Act (55 & 56 Vic c 58)
1894
Crown Lands Act (57 & 58 Vic c 43)
1895
Mortgagees Legal Costs Act (58 & 59 Vic c 25)
1899
Improvement of Land Act (62 & 63 Vic c 46)
1906
Crown Lands Act (6 Edw 7 c 28)
1911
Conveyancing Act (1 & 2 Geo 5 c 37), sections 1, 6, 9, and 11.
1913
Crown Lands Act (3 & 4 Geo 5 c 8)
Replace
with Substantial Amendment
1290
Statute of Westminster III (Quia Emptores) (18 Edw 1 cc1-3)
1634
Conveyancing Act (Ireland) (10 Chas 1, sess 2 c3), sections 1, 2, 3, 4, and 5.
1707
Registration of Deeds Act (Ireland) (6 Anne c2)
1709
Registration of Deeds Act (Ireland) (8 Anne c10)
1721
Boundaries Act (Ireland) (8 Geo 1 c 5)
1721
Registration of Deeds (Amendment) Act (Ireland) (8 Geo 1 c 15)
1785
Registration of Deeds (Amendment) Act (Ireland) (25 Geo 3 c 47)
1822
Registry of Deeds (Ireland) Act (3 Geo 4 c 116)
1832
Prescription Act (2 & 3 Will 4 c 71)
1832
Registry of Deeds (Ireland) Act (2 & 3 Will 4 c 87)
1845
Real Property Act (8 & 9 Vic c 106), sections 2 and 5.
1848
Land Transfer (Ireland) Act (11 & 12 Vic c 120)
1850
Judgment Mortgage (Ireland) Act (13 & 14 Vic c 29)
1858
Prescription (Ireland) Act (21 & 22 Vic c 42)
1858
Judgment Mortgage (Ireland) Act (21 & 22 Vic c1 05)
1859
Law of Property Amendment Act (22 & 23 Vic c 35), section 12
1864
Registration of Deeds (Ireland) Act (27 & 28 Vic c 76)
1868
Partition Act (31 & 32 Vic c 40)
1875
Registry of Deeds (Ireland) Act (39 & 39 Vic c 5)
1876
Partition Act (39 & 40 Vic c 17)
1881
Conveyancing Act (44 & 45 Vic c41), sections 2, 3, 6, 7, 17, 18, 19, 20,
21, 22, 23, 24, 51, 55, 56, 58, 59, 63, 67, and 70.
1882
Settled Land Act (45 & 46 Vic c 38)
1884
Settled Land Act (47 & 49 Vic c 18)
1887
Settled Land Acts Amendment Act (50 & 51 Vic c 30)
1889
Settled Land Act (52 & 53 Vic c 36)
1890
Settled Land Act (53 & 53 Vic c 69)
1893
Voluntary Conveyances Act (56 & 57 Vic c 21)
1911
Conveyancing Act (1 & 2 Geo 5 c 37), sections 3, 10, and 13.
Replace
Without Substantial Amendment
1695
Statute of Frauds (Ireland) (7 Will 3 c 12)
1707
Administration of Justice Act (Ireland) (6 Anne c 10), section 23
1789
Commons Act (Ireland) (29 Geo 3 c 30)
1791
Commons Act (Ireland) (31 Geo 3 c 38)
1830
Illusory Appointments Act (11 Geo 4 & 1 Will 4 c 46)
1845
Real Property Act (8 & 9 Vic c 106), section 3, 4, 6
1859
Law of Property Amendment Act (22 & 23 Vic c 35), sections 10, 21, 24, 27,
and 28.
1867
Sale of Land by Auction Act (30 & 31 Vic c 48)
1874
Powers of Appointment Act (37 & 38 Vic c 37)
1874
Vendor and Purchaser Act (37 & 38 Vic c 78), section 9
1881
Conveyancing Act (44 & 45 Vic c 41), sections 9, 13, 15, 16, 44, 50, 52,
53, 54, 60, 61, and 64
1882
Conveyancing Act (45 7 46 Vic c 39), section 3, 4, and 6.
1899
Bodies Corporate (Joint Tenancy) Act (62 & 63 Vic c 20)
1911
Conveyancing Act (1 & 2 Geo 5 c 37), sections 4, and 5.
APPENDIX
B LAW Reform COMMISSION REPORTS AND CONSULTATION PAPERS ON LAND LAW AND
CONVEYANCING LAW
Report on Land Law and Conveyancing Law: (1) General
Proposals (LRC 30-1989) (June
1989)
Report on Land
Law and Conveyancing Law: (2) Enduring Powers of Attorney (LRC 31-1989)
(October 1989)
Report on Land Law and Conveyancing Law:
(3) The Passing of Risk form Vendor to Purchaser (LRC 39-1991) (December 1991);
(4) Service of Completion Notices (LRC 40-1991) (December 1991)
Report on Land Law and Conveyancing Law:
(5) Further General Proposals (LRC 44-1992) (October
1992)
Report on Land Law and Conveyancing Law:
(6) Further General Proposals including the Execution of Deeds (LRC 56-1998)
(May
1998)
Report
on Gazumping (LRC 59-1999) (October
1999)
Report
on the Rule Against Perpetuities and Cognate Rules (LRC 62-2000) (December
2000)
Report
on the Variation of Trusts (LRC 63-2000) (December 2000)
Report
on the Acquisition of Easements and Profits ŕ Prendre by Prescription (LRC
66-2002) (December 2002)
Report
on Title by Adverse Possession of Land (LRC 67-2002) (December 2002)
Report
on Land Law and Conveyancing Law: (7) Positive Covenants over Freehold Land and
other Proposals (LRC 70-2003) (March 2003)
Consultation
Paper on Judgment Mortgages (LRC CP30-2004) (March 2004)
APPENDIX
C LIST OF LAW REFORM COMMISSION PUBLICATIONS
|
First Programme for Examination of Certain Branches of the Law with a View to their Reform (December 1976) (Prl 5984)
|
€0.13 |
|
Working Paper No 1-1977, The Law Relating to the Liability of Builders, Vendors and Lessors for the Quality and Fitness of Premises (June 1977)
|
€1.40 |
|
Working Paper No 2-1977, The Law Relating to the Age of Majority, the Age for Marriage and Some Connected Subjects (November 1977)
|
€1.27 |
|
Working Paper No 3-1977, Civil Liability for Animals (November 1977)
|
€3.17 |
|
First (Annual) Report (1977) (Prl 6961)
|
€0.51 |
|
Working Paper No 4-1978, The Law Relating to Breach of Promise of Marriage (November 1978)
|
€1.27 |
|
Working Paper No 5-1978, The Law Relating to Criminal Conversation and the Enticement and Harbouring of a Spouse (December 1978)
|
€1.27 |
|
Working Paper No 6-1979, The Law Relating to Seduction and the Enticement and Harbouring of a Child (February 1979)
|
€1.90 |
|
Working Paper No 7-1979, The Law Relating to Loss of Consortium and Loss of Services of a Child (March 1979)
|
€1.27 |
|
Working Paper No 8-1979, Judicial Review of Administrative Action: the Problem of Remedies (December 1979)
|
€1.90 |
|
Second (Annual) Report (1978/79) (Prl 8855)
|
€0.95
|
|
Working Paper No 9-1980, The Rule Against Hearsay (April 1980)
|
€2.54 |
|
Third (Annual) Report (1980) (Prl 9733)
|
€0.95 |
|
First Report on Family Law – Criminal Conversation, Enticement and Harbouring of a Spouse or Child, Loss of Consortium, Personal Injury to a Child, Seduction of a Child, Matrimonial Property and Breach of Promise of Marriage (LRC 1-1981) (March 1981)
|
€2.54 |
|
Working Paper No 10-1981, Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (September 1981)
|
€2.22 |
|
Fourth (Annual) Report (1981) (Pl 742)
|
€0.95
|
|
Report on Civil Liability for Animals (LRC 2-1982) (May 1982)
|
€1.27 |
|
Report on Defective Premises (LRC 3-1982) (May 1982)
|
€1.27 |
|
Report on Illegitimacy (LRC 4-1982) (September 1982)
|
€4.44 |
|
Fifth (Annual) Report (1982) (Pl 1795)
|
€0.95
|
|
Report on the Age of Majority, the Age for Marriage and Some Connected Subjects (LRC 5-1983) (April 1983)
|
€1.90 |
|
Report on Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters (LRC 6-1983) (November 1983)
|
€1.27 |
|
Report on Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (LRC 7-1983) (December 1983)
|
€1.90
|
|
Report on Divorce a Mensa et Thoro and Related Matters (LRC 8-1983) (December 1983)
|
€3.81 |
|
Sixth (Annual) Report (1983) (Pl 2622) |
€1.27 |
|
Report on Nullity of Marriage (LRC 9-1984) (October 1984)
|
€4.44 |
|
Working Paper No 11-1984, Recognition of Foreign Divorces and Legal Separations (October 1984)
|
€2.54 |
|
Seventh (Annual) Report (1984) (Pl 3313)
|
€1.27
|
|
Report on Recognition of Foreign Divorces and Legal Separations (LRC 10-1985) (April 1985)
|
€1.27 |
|
Report on Vagrancy and Related Offences (LRC 11-1985) (June 1985)
|
€3.81 |
|
Report on the Hague Convention on the Civil Aspects of International Child Abduction and Some Related Matters (LRC 12-1985) (June 1985)
|
€2.54
|
|
Report on Competence and Compellability of Spouses as Witnesses (LRC 13-1985) (July 1985)
|
€3.17 |
|
Report on Offences Under the Dublin Police Acts and Related Offences (LRC 14-1985) (July 1985)
|
€3.17 |
|
Report on Minors’ Contracts (LRC 15-1985) (August 1985)
|
€4.44 |
|
Report on the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (LRC 16-1985) (August 1985) |
€2.54 |
|
Report on the Liability in Tort of Minors and the Liability of Parents for Damage Caused by Minors (LRC 17-1985) (September 1985)
|
€3.81 |
|
Report on the Liability in Tort of Mentally Disabled Persons (LRC 18-1985) (September 1985)
|
€2.54 |
|
Report on Private International Law Aspects of Capacity to Marry and Choice of Law in Proceedings for Nullity of Marriage (LRC 19-1985) (October 1985)
|
€4.44 |
|
Report on Jurisdiction in Proceedings for Nullity of Marriage, Recognition of Foreign Nullity Decrees, and the Hague Convention on the Celebration and Recognition of the Validity of Marriages (LRC 20-1985) (October 1985)
|
€2.54 |
|
Eighth (Annual) Report (1985) (Pl 4281) |
€1.27 |
|
Report on the Statute of Limitations: Claims in Respect of Latent Personal Injuries (LRC 21-1987) (September 1987)
|
€5.71
|
|
Consultation Paper on Rape (December 1987) |
€7.62
|
|
Report on the Service of Documents Abroad re Civil Proceedings -the Hague Convention (LRC 22-1987) (December 1987)
|
€2.54 |
|
Report on Receiving Stolen Property (LRC 23-1987) (December 1987) |
€8.89 |
|
Ninth (Annual) Report (1986-1987) (Pl 5625)
|
€1.90
|
|
Report on Rape and Allied Offences (LRC 24-1988) (May 1988)
|
€3.81
|
|
Report on the Rule Against Hearsay in Civil Cases (LRC 25-1988) (September 1988)
|
€3.81 |
|
Report on Malicious Damage (LRC 26-1988) (September 1988)
|
€5.08
|
|
Report on Debt Collection: (1) The Law Relating to Sheriffs (LRC 27-1988) (October 1988) |
€6.35
|
|
Tenth (Annual) Report (1988) (Pl 6542)
|
€1.90 |
|
Report on Debt Collection: (2) Retention of Title (LRC 28-1988) (April 1989)
|
€5.08
|
|
Report on the Recognition of Foreign Adoption Decrees (LRC 29-1989) (June 1989)
|
€6.35 |
|
Report on Land Law and Conveyancing Law: (1) General Proposals (LRC 30-1989) (June 1989)
|
€6.35 |
|
Consultation Paper on Child Sexual Abuse (August 1989)
|
€12.70
|
|
Report on Land Law and Conveyancing Law: (2) Enduring Powers of Attorney (LRC 31-1989) (October 1989)
|
€5.08 |
|
Eleventh (Annual) Report (1989) (Pl 7448) |
€1.90
|
|
Report on Child Sexual Abuse (LRC 32-1990) (September 1990)
|
€8.89
|
|
Report on Sexual Offences against the Mentally Handicapped (LRC 33-1990) (September 1990)
|
€5.08 |
|
Report on Oaths and Affirmations (LRC 34-1990) (December 1990)
|
€6.35
|
|
Report on Confiscation of the Proceeds of Crime (LRC 35-1991) (January 1991)
|
€7.62
|
|
Consultation Paper on the Civil Law of Defamation (March 1991)
|
€25.39
|
|
Report on the Hague Convention on Succession to the Estates of Deceased Persons (LRC 36-1991) (May 1991)
|
€8.89
|
|
Twelfth (Annual) Report (1990) (Pl 8292)
|
€1.90
|
|
Consultation Paper on Contempt of Court (July 1991)
|
€25.39 |
|
Consultation Paper on the Crime of Libel (August 1991)
|
€13.97 |
|
Report on the Indexation of Fines (LRC 37-1991) (October 1991)
|
€8.25
|
|
Report on the Civil Law of Defamation (LRC 38-1991) (December 1991)
|
€8.89
|
|
Report on Land Law and Conveyancing Law: (3) The Passing of Risk from Vendor to Purchaser (LRC 39-1991) (December 1991); (4) Service of Completion Notices (LRC 40-1991) (December 1991)
|
€7.62 |
|
Thirteenth (Annual) Report (1991) (PI 9214)
|
€2.54
|
|
Report on the Crime of Libel (LRC 41-1991) (December 1991)
|
€5.08
|
|
Report on United Nations (Vienna) Convention on Contracts for the International Sale of Goods 1980 (LRC 42-1992) (May 1992)
|
€10.16 |
|
Report on the Law Relating to Dishonesty (LRC 43-1992) (September 1992)
|
€25.39
|
|
Land Law and Conveyancing Law: (5) Further General Proposals (LRC 44-1992) (October 1992)
|
€7.62
|
|
Consultation Paper on Sentencing (March 1993) |
€25.39
|
|
Consultation Paper on Occupiers’ Liability (June 1993)
|
€12.70 |
|
Fourteenth (Annual) Report (1992) (PN 0051)
|
€2.54 |
|
Report on Non-Fatal Offences Against The Person (LRC 45-1994) (February 1994)
|
€25.39
|
|
Consultation Paper on Family Courts (March 1994) |
€12.70 |
|
Report on Occupiers’ Liability (LRC 46-1994) (April 1994)
|
€7.62
|
|
Report on Contempt of Court (LRC 47-1994) (September 1994)
|
€12.70
|
|
Fifteenth (Annual) Report (1993) (PN 1122)
|
€2.54
|
|
Report on the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (LRC 48-1995) (February 1995)
|
€12.70
|
|
Consultation Paper on Intoxication as a Defence to a Criminal Offence (February 1995)
|
€12.70
|
|
Report on Interests of Vendor and Purchaser in Land during the period between Contract and Completion (LRC 49-1995) (April 1995)
|
€10.16
|
|
An Examination of the Law of Bail (LRC 50-1995) (August 1995) |
€12.70
|
|
Sixteenth (Annual) Report (1994) (PN 1919)
|
€2.54
|
|
Report on Intoxication (LRC 51-1995) (November 1995)
|
€2.54 |
|
Report on Family Courts (LRC 52-1996) (March 1996) |
€12.70
|
|
Seventeenth (Annual) Report (1995) (PN 2960) |
€3.17
|
|
Report on Sentencing (LRC 53-1996) (August 1996) |
€10.16
|
|
Consultation Paper on Privacy: Surveillance and the Interception of Communications (September 1996) |
€25.39
|
|
Report on Personal Injuries: Periodic Payments and Structured Settlements (LRC 54-1996) (December 1996)
|
€12.70 |
|
Eighteenth (Annual) Report (1996) (PN 3760)
|
€7.62 |
|
Consultation Paper on the Implementation of The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, 1993 (September 1997)
|
€12.70 |
|
Report on The Unidroit Convention on Stolen or Illegally Exported Cultural Objects (LRC 55-1997) (October 1997)
|
€19.05 |
|
Report on Land Law and Conveyancing Law; (6) Further General Proposals including the execution of deeds (LRC 56-1998) (May 1998) |
€10.16 |
|
Consultation Paper on Aggravated, Exemplary and Restitutionary Damages (May 1998)
|
€19.05 |
|
Nineteenth (Annual) Report (1997) (PN 6218)
|
€3.81 |
|
Report on Privacy: Surveillance and the Interception of Communications (LRC 57-1998) (June 1998)
|
€25.39
|
|
Report on the Implementation of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, 1993 (LRC 58-1998) (June 1998)
|
€12.70 |
|
Consultation Paper on the Statutes of Limitation: Claims in Contract and Tort in Respect of Latent Damage (Other Than Personal Injury) (November 1998)
|
€6.35 |
|
Twentieth (Annual) Report (1998) (PN 7471)
|
€3.81 |
|
Consultation Paper on Statutory Drafting and Interpretation: Plain Language and the Law (LRC CP14-1999) (July 1999)
|
€7.62 |
|
Consultation Paper on Section 2 of the Civil Liability (Amendment) Act, 1964: The Deductibility of Collateral Benefits from Awards of Damages (LRC CP15-1999) (August 1999)
|
€9.52 |
|
Report on Gazumping (LRC 59-1999) (October 1999)
|
€6.35
|
|
Twenty First (Annual) Report (1999) (PN 8643)
|
€3.81 |
|
Report on Aggravated, Exemplary and Restitutionary Damages (LRC 60-2000) (August 2000)
|
€7.62 |
|
Second Programme for examination of certain branches of the law with a view to their reform: 2000-2007 (PN 9459) (December 2000)
|
€6.35 |
|
Consultation Paper on the Law of Limitation of Actions arising from Non-Sexual Abuse Of Children (LRC CP16-2000) (September 2000)
|
€7.62
|
|
Report on Statutory Drafting and Interpretation: Plain Language and the Law (LRC 61-2000) (December 2000)
|
€7.62 |
|
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[1]
See pages vi-vii above.
[2]
For further details of the nature of these statutes, see paragraph 3 below.
[3]
See further on the scope of this area, paragraphs 6-8 below.
[4]
In
essence this is a mixture of case law emanating from the courts and practice
developed by practitioners specialising in land law and conveyancing. On
land law generally see Lyall Land Law in Ireland (2nd ed
Round Hall Sweet & Maxwell 2000) and Wylie Irish Land Law (3rd
ed Butterworths 1997). On conveyancing see Wylie Irish Conveyancing
Law (2nd ed Butterworths 1996).
[5]
See page vi above.
[6]
For
convenience the remainder of the Consultation Paper will proceed on the
assumption that all the reform and modernisation proposals will be implemented
by one Bill only. It is anticipated that it will be a very large Bill,
but not necessarily as large as some recently enacted similar legislation
designed to consolidate and reform the law, eg the Taxes
Consolidation Act 1997 (1104 sections). Many of the proposals in this
Consultation Paper envisage radical simplification of the law by removal of old
legislation with either no replacement at all or much simpler replacement.
[7]
Some pre-1495 statutes were transmitted to Ireland by royal writ and some were
apparently enforced by the Irish courts even without any formal application:
see Hand English Law in Ireland 1290-1324 (Cambridge University Press
1967) at 164-165.
[8]
Although not containing an express provision stating that the statute applied
to Ireland, references within it (eg to Crown land in Ireland) may make
it clear that it so applied.
[9]
Note also the aims outlined in the Minister’s public announcement of 29 June
2004: see page vii above.
[10]
See page vi
above.
[11]
Consultation
Paper on Business Tenancies (LRC CP 21-2003); Consultation Paper on the
General Law of Landlord and Tenant (LRC CP 28 – 2003).
[12]
See
paragraph 2.34 below.
[13]
See
paragraph 2.35 below.
[14]
See Chapter
3 below.
[15]
See Chapter
12 below.
[16]
See again
Chapter 3 below.
[17]
Eg the Statute
of Charitable Uses (Ireland) 1634 (10 Chas 1 sess 3 c 1).
[18]
See
paragraph 2 above.
[19]
Ie
the main substantive Parts, excluding the technical, standard provisions
relating to such matters as the short title, commencement date, power to make
regulations, repeals and so on.
[20]
See
paragraph 1 above.
[21]
In the
O’Reilly Hall at UCD, Belfield, Dublin 4.
[22]
See page vi
above.
[23]
See Lyall Land Law in Ireland (2nd ed Round Hall Sweet &
Maxwell 2000); Wylie Irish Land Law (3rd ed Butterworths
1997), especially Chapter 1.
[24]
Case
of Gavelkind (1605) Dav 49; Case of Tanistry (1607) Dav 28.
See Pawlisch Sir John Davies and the Conquest of Ireland (Cambridge
University Press 1985).
[25]
See Lyall op cit fn 1 Chapters 3 and 6-9; Wylie op cit fn 1,
Chapters 2 and 4. See also Milsom The Legal Framework of English
Feudalism (Cambridge University Press 1976)
[26]
See paragraph 2.02 below.
[27]
A creature of the Statute of Westminster II 1285 c 1 (De Donis
Conditionalibus), still on the Irish statute book. See paragraph 2.02
below.
[28]
In fact land ownership includes the ownership of the land below the surface of
the earth (eg minerals) and the airspace above it. See Lyall op
cit fn 1 at 23-40; Wylie op cit fn 1 paragraph 4.022.
[29]
Under the law of fixtures: see Lyall op cit fn 1 at 623-625.
[30]
The
distinction between “estates” and “interests” is often blurred, largely because
sometimes “interests” is used as a generic expression encompassing “estates”,
but at other times is used by way of distinction, to distinguish between
substantial ownership (of an estate) and ownership of some minor interest
falling short of an estate. Further confusion arises when reference is
made to the distinction between “legal” and “equitable” ownership: see
paragraph 3.03 and 6.17 below.
[31]
See authorities cited in fn 3 above.
[32]
Eg Magna
Carta 1217 (18 John c 39) and the Statute of Westminster III 1290
(18 Edw 1 cc 1-3) (Quia Emptores). See Wylie op cit fn 1 paragraphs
2.40-2.47.
[33]
See
paragraph 1.05 below.
[34]
See
paragraph 1.10 below.
[35]
Eg
the Statute of Uses (Ireland) 1634, the equivalent of the English Statute
of Uses 1535. See further paragraphs 1.23 and 8.20 below.
[36]
Statute of
Westminster III (18 Edw 1 c 1).
[37]
The
equivalent of the English Tenures (Abolition) Act 1660.
[38]
A very
common example was that known as “free and common socage”, the derivation of
which has been a matter of disptue: see Wylie op cit fn 1 paragraphs
2.25-2.27.
[39]
For a recent
application of it see Re Dunne’s Estate [1988] IR 55.
[40]
See the
Commission’s Consultation Paper on Business Tenancies (LRC CP 21 –
2003), paragraphs 3.41 – 3.46 and 4.47.
[41]
Free and
common socage (see fn 16 above). Se Wylie op cit fn 1 paragraphs
2.48-2.49.
[42]
See
paragraphs 1.12 and 2.17 below.
[43]
See Wylie op
cit fn 1 paragraphs 2.35 – 2.39.
[44]
Ibid
paragraph 2.44.
[45]
The “rebels”
were usually indicted for treason and Acts of Attainder were enacted
causing the land to “escheat” (pass back) to the Crown by way of
forfeiture. See, eg the Irish statutes 28 Hen 8 c 1 (1537)
(attainder of Earl of Kildare and others); 2 Eliz 1 c 8 (1560) (Sir Oswald
Massingberde); 11 Eliz 1 sess 3 c 1 (1569) (Shane O’Neill and others); 27 Eliz
1 c 1 (1585) (James Eustace, Lord Baltinglass); 28 Eliz 1 c 7 (1586) (Earl of
Desmond and others).
[46]
The most
comprehensive resettlement was, of course, that which occurred in the North of
the island, the so-called “Plantation of Ulster” which followed the failure of
a rebellion led by the Earls of Tyrone and Tyrconnell (Donegal), who were
forced to flee in 1607 (the “Flight of the Earls”): see Wylie op cit fn
1 paragraph 1.30.
[47]
See Wylie op
cit fn 1paragraph 2.45.
[48]
Eg
the Acts of 1634 (10 Chas 1 c 3; 10 Chas 1 sess 3 cc 2 and 3), 1639 (15 Chas 1
sess 2 c 6), 1665 (17 & 18 Chas 2 c 2) and 1695 (7 Will 3 c 3). See
the discussion of such legislation in Moore v Attorney General [1934] IR
44.
[49]
See Wylie op
cit fn 1 paragraph 6.010.
[50]
See
paragraph 7.08 below.
[51]
See further
paragraphs 1.13 and 2.17 below.
[52]
See Wylie op
cit fn 1 paragraphs 2.30 – 2.33.
[53]
See
paragraph 1.07 above.
[54]
See
paragraph 1.19 below. See also Delacherois v Delacherois (1864) 11
HLC 62, which concerned the “manor” of Donaghadee in Co. Down. On the
subject of manor copyholds Willes J stated: “We are not aware that these base
tenures exist in Ireland.” (Page 83) In the same case Lord St Leonards
(formerly Sir Edward Sugden, Lord Chancellor of Ireland) doubted whether the
manor of Donaghadee retained its old manorial customs, such as its own court: ibid
at 99.
[55]
Section 5.
[56]
See eg
Copyhold Act 1841 section 100.
[57]
Section 99.
[58]
See paragraph 2.08 below.
[59]
See
paragraph 1.07 above.
[60]
See
paragraph 2.08 below.
[61]
Eg
the rule against inalienability: see paragraph 1.05 above.
[62]
See
generally Wylie Irish Landlord and Tenant Law (2nd ed
Butterworths 1998). Note the somewhat paradoxical return to the “contractual”
basis of leasehold arrangements brought about by Deasy’s Act 1860: see
paragraph 1.15 below.
[63]
See
paragraph 1.03 above.
[64]
See Furlong The
Law of Landlord and Tenant as Administered in Ireland (2nd ed La
Touche 1869) Vol II, bk VI, Chapter II; Harrison The Law and Practice
Relating to Ejectments in Ireland (Hodges Figgis 1903). See also
Dowling Ejectment for Non-Payment of Rent (SLS Legal Publications (NI)
1986).
[65]
See Wylie op
cit fn 1 Chapter 27.
[66]
See
paragraph 1.07 above.
[67]
Note,
however, that many of them were, in fact, fee farm grantees liable to pay a
“quit” rent to the Crown: see paragraphs 1.07 above and 7.08 below.
[68]
Paragraph
1.18 below.
[69]
See Wylie op
cit fn 1 Chapter 4.
[70]
Paragraph
1.07 above.
[71]
Known as a
“quit rent” in Ireland: see Wylie Irish Land Law (3rd ed
Butterworths 1997) paragraphs 6.010 – 6.012.
[72]
Ibid
paragraphs 4.063 – 4.064.
[73]
See
paragraph 1.19 below.
[74]
In the sense
that a leaseholder was given the right to “convert” the lease into a fee farm
grant.
[75]
In the sense
that a statutory provision automatically converted the lease into a fee farm
grant. Thus section 37 of the Renewable Leasehold Conversion Act 1849
provided that any post-1849 leases for lives or years renewable for ever
operated automatically as a fee farm grant. Section 74 of the Landlord
and Tenant (Amendment) Act 1980 purports to bring about a similar automatic
conversion of pre-1849 leases for lives (but not, be it noted, years)
renewable for ever in respect of which the power to convert had not yet been
exercised. The epithet “similar” is used because it would appear that the
lessee does not obtain a fee farm grant, but nevertheless in substance
it seems to be a statutory equivalent: see Lyall Land Law in Ireland (2nd
ed Round Hall Sweet & Maxwell 2000) at 211; Wylie Irish Land Law (3rd
ed Butterworths 1997) paragraph 4.081.
[76]
For detailed
treatment of the various categories of fee farm grant see Wylie op cit
fn 53 paragraphs 4.057 – 4.111.
[77]
Or in the case of post-1849 perpetually renewable leases caught by section 37
of the Renewable Leasehold Conversion Act 1849, the original grant purported
to be a lease.
[78]
Eg
“bishops’ leases” coming within the Church Temporalities Acts 1833-1860:
see Wylie op cit fn 53 paragraph 4.079.
[79]
The granting
of a freehold estate (a life estate) had the advantage in earlier times of
conferring the right to vote in parliamentary elections and this was probably a
primary reason for the popularity of such leases. Another was that it
would be provided that the landlord was entitled to a “fine” (a payment of a
capital sum) every time one of the lives had to be renewed. See generally
Lyne Leases for Lives Renewable for Ever (Hodges and Smith 1837).
[80]
But not all,
eg, it would appear that a subsequent assignment of the fee farm
grantee’s estate is subject to the law governing conveyances of a freehold (fee
simple) estate, ie, words of limitation must be used: see Re Courtney
[1981] NI 58. Cf an original conversion grant, eg, a grant
made under the Renewable Leasehold Conversion Act 1849 : see Re Johnston’s
Estate [1911] 1 IR 215. Note also that a fee farm rent is not treated
like a leasehold rent by the Statute of Limitations 1957, so that
non-payment of the fee farm rent may result in the grantor losing his title, as
opposed to simply losing the right to recover arrears of rent (as is the
position with a leasehold rent): see Wylie Irish Land Law (3rd
ed Butterworths 1997) paragraph 23.30, fn 97.
[81]
See Wylie op
cit fn 53 paragraphs 4.083-4.086.
[82]
The Bill,
which became the 1860 Act, was piloted through the Westminster Parliament by
Sergeant Deasy who was then the Attorney General for Ireland. In fact,
the Bill was essentially the one drafted and introduced by the Irish law
officers in 1852 (Attorney General Napier and Solicitor General Whiteside), but
which had lapsed with the fall of Lord Derby’s Government that year.
Although adopted by the new Liberal Government and passed by the House of
Commons, it had been rejected by the House of Lords in 1853. See Dowling
“The Genesis of Deasy’s Act” (1989) 40 NILQ 53.
[83]
Section 3.
[84]
The paradox
of reverting to the original nature of leaseholds has already been noted: see
paragraph 1.10 above.
[85]
Thus,
notwithstanding the apparent return to the contractual basis of the
relationship (fn 62 above), it is clear that the tenant still has an estate in
the land, which can be passed to successors in title, and successors to both
the landlord and tenant are equally entitled to the benefit and burden of
rights and obligations created by the lease or tenancy agreement. For
full discussion of the impact of section 3 see Wylie Irish Landlord and
Tenant Law (2nd ed Butterworths 1998) paragraphs 2.07 – 2.38.
[86]
See Wylie Irish
Land Law (3rd ed 1997) paragraphs 4.091 – 4.103. Note that
it is possible to create another type of fee farm grant, which involves neither
feudal tenure nor the relationship of landlord and tenant. In such
instances the rent is a rentcharge, to be distinguished from a rent
service: ibid paragraphs 4.104 – 4.111. See paragraph 7.11 below.
[87]
One reason
why they are still used is that the running of the burden of covenants is
governed by leasehold law, so that the limitations of freehold law do not
apply, eg, the rule that the burden of a positive covenant (eg
to repair) will not run with freehold land: see paragraph 7.03 below.
[88]
Paragraph
1.14.
[89]
See Wylie Irish
Land Law (3rd ed Butterworths 1997) paragraphs 4.177 – 4.178.
[90]
Contrast Duckett
v Keane [1903] 1 IR 409 (99-year term running concurrently with lease for
three lives) with Adams v McGoldrick [1927] NI 127 (61-year term
reversionary to sub-lease for the life of the surviving life named in the
head-lease).
[91]
Wylie Irish Landlord
and Tenant Law (2nd ed Butterworths 1998) paragraph 1.08.
[92]
See the
Commission’s Consultation Paper on the General Law of Landlord and Tenant
(LRC CP 28 – 2003).
[93]
Paragraph
1.15 above.
[94]
See Lyall Land
Law in Ireland (2nd ed Round Hall Sweet & Maxwell 2000)
Chapter 15; Wylie Irish Land Law (3rd ed Butterworths 1997)
paragraphs 1.39 – 1.56.
[95]
Initially by
the newly established Land Commission.
[96]
Subject to
the landlord’s right to object, but the reasonableness of this could be
challenged in the courts.
[97]
Tenants
became entitled to 15-year judicial tenancies, which were renewable for further
15-year periods.
[98]
The Town Tenants (Ireland) Act 1906.
[99]
Initially
with the enactment of the Landlord and Tenant Act 1931.
[100]
See Lyall op
cit fn 72 Chapter 15; Wylie op cit fn 72 paragraphs 1.51 – 1.57.
[101]
The idea for
the scheme came from the English economist John Bright.
[102]
Provisions
were included in the Landlord and Tenant (Ireland) Act 1870 and Land
Law (Ireland) Act 1881, with various refinements being made by the Purchase
of Land (Ireland) Acts 1885 and 1891 and Land Law (Ireland) Act
1896.
[103]
By the Irish
Land Acts 1903 and 1909.
[104]
See Wylie op
cit fn 72 paragraphs 1.64-1.68. The scheme has now run its course and
the Land Commission has been dissolved under the Irish Land Commission
(Dissolution) Act 1992. That Act came into operation on 31 March 1999
and the vestiges of the Commission’s functions then transferred to the
Department of Agriculture and Food. For the latest move to wrap up
outstanding matters (eg collection of land purchase annuities) see the Land
Bill 2004 (presented to the Senate on 13 July 2004 by Senator Mary
O’Rourke).
[105]
The attempt
to boost agricultural tenancies by enactment of the Land Act 1984
(section 2 of which “disapplied” to new agricultural leases the statutory
rights contained in the 19th century 1870 and 1881 Acts: see paragraph 1.18
above) seems to have had very limited success: see Wylie op cit fn 72
paragraph 18.03.
[106]
Initially
under the Local Registration of Title (Ireland) Act 1891 and
subsequently under the Registration of Title Act 1964 (section
23). See Fitzgerald Land Registry Practice (2nd ed
Round Hall 1995).
[107]
See
paragraph 1.25 below.
[108]
For detailed
list of such statutes see paragraph 4.04 below.
[109]
Cf
the “Shelbourne” lease, which derived from the penal laws debarring Catholics
from purchasing land, but permitting them to take a lease up to 31 years.
See Wylie op cit fn 72 paragraph 1.36.
[110]
See again,
paragraph 4.04 below.
[111]
In this
context the word “estate” is used in the sense of a physical entity comprising
a large area of land, rather than in the technical sense of the legal concept of
what a landowner really owns, ie, some freehold or leasehold estate,
like a fee simple or tenancy for a term of years: see paragraph 1.03 above.
[112]
See
paragraphs 1.07 and 1.09 above.
[113]
When wills
of land became possible after enactment of the Statute of Wills (Ireland)
1634.
[114]
This is a
good illustration of the fundamental principle that what is owned by a
landowner is not the physical entity (the “land”), but rather the legal concept
of an estate or interest in the land: see paragraph 1.03 above.
[115]
See
paragraph 1.21 above.
[116]
See further
paragraph 4.09 below.
[117]
In this
respect it is concerned primarily with “inter vivos” dispositions, ie,
made while the landowner is still alive, in contrast to succession law, which
is concerned with dispositions taking effect on death of the landowner, ie,
under a will or in accordance with the law of “intestate” succession (where
there is no valid will). The law of succession was the subject of
relatively modern consolidating legislation in the Succession Act 1965.
[118]
See Lyall Land
Law in Ireland (2nd ed Round Hall Sweet & Maxwell 2000) at 67
and 278; Wylie Irish Land Law (3rd ed Butterworths 1997)
paragraphs 3.023-3.024.
[119]
And later
conveyances “to uses” operating under the Statute of Uses (Ireland) 1634.
[120]
See
generally Wylie Irish Conveyancing Law (2nd ed Butterworths
1996).
[121]
To be
strictly correct, the sale and purchase of the “estate” or “interest” which the
vendor is selling and the purchaser is buying: see paragraphs 1.03 and 1.22
above.
[122]
See paragraph 8.03
below.
[123]
Eg the Vendor
and Purchaser Act 1874 and various parts of the Conveyancing Acts
1881-1911.
[124]
See Lyall Land
Law in Ireland (2nd ed Round Hall Sweet & Maxwell 2000)
Chapters 5 and 24; Wylie Irish Land Law (3rd ed Butterworths
1997) Chapters 21 and 22.
[125]
Initially by the Registration
of Deeds Act (Ireland) 1707.
[126]
Initially the
concept was introduced by the Record of Title (Ireland) Act 1865, but it
only became fully established with the setting up of the Land Registry by the Local
Registration of Title (Ireland) Act 1891.
[127]
In strict theory,
what is said here relates to the particular “estate” in the land which is the
subject of the transaction: see paragraph 1.03 above.
[128]
See now section
116 of the Registration of Title Act 1964.
[129]
See generally Madden Registration of Deeds, Conveyances and Judgment
Mortgages (2nd ed McGee 1901).
[130]
By way of what is
known as a “memorial” of the deed or other document: see paragraph 11.03 below.
[131]
Although from the
beginning known as the Registry of “Deeds”, this is something of a misnomer
because the system has always applied to any document dealing with land, ie,
included unsealed documents such as a written contract for the sale of land:
see O’Connor v McCarthy [1982] IR 161 at 171 (per Costello J).
[132]
And the titles to
other land, eg, houses bought or built under the Small Dwellings
Acquisition Act 1899 and land acquired by local authorities for labourers’
plots under the Labourers (Ireland) Act 1906.
[133]
See sections
23-25. See also McAllister Registration of Title in Ireland
(Incorporated Council of Law Reporting for Ireland 1973) Chapter II; Fitzgerald
Land Registry Practice (2nd ed Round Hall 1995) Chapter 22.
[134]
Carlow, Laois and
Meath.
[135]
As from 1 January
1970: see Compulsory Registration of Ownership (Carlow, Laoghis and Meath)
Order 1969 (SI No 87 of 1969).
[136]
Major amending
Acts were the Registry of Deeds (Ireland) Act 1832 and Land Transfer
(Ireland) Act 1848. For detailed annotations to these and the other
Acts still in force see Wylie Conveyancing Law (Butterworths Irish
Annotated Statutes 1999) Part II.
[137]
See paragraph
11.01 below.
[138]
See generally the
treatises on this by McAllister and Fitzgerald, fn 111 above.
[139]
Progress has not
been helped by the uncertainty created by the hiatus in implementing the
governmental proposal, announced as long ago as September 1990, to convert the
Land Registry and Registry of Deeds into a commercial semi-State body.
This has yet to be implemented.
[140]
See paragraph
13.02 below.
[141]
Again in strict
theory what is mortgaged is not the physical entity, the land, but the estate or
interest in the land owned by the mortgagor: see paragraph 1.03 above.
[142]
See Lyall Land
Law in Ireland (2nd ed Round Hall Sweet & Maxwell 2000)
Chapter 23; Wylie Irish Land Law (3rd ed Butterworths 1997)
Chapters 12 and 13.
[143]
Ie a debt
in respect of which the creditor has obtained a court order for its
enforcement.
[144]
See Johnston Banking
and Security Law in Ireland (Butterworths 1998).
[145]
Eg in the Conveyancing
Acts 1881-1911. Note, however, the introduction of some consumer
protection in respect of housing loans by the Consumer Credit Act 1995:
see paragraph 9.11 below.
[146]
Professor F W
Maitland, the doyen of English authorities on the law of equity wrote: “that is
the worst of our mortgage deed – owing to the action of equity, it is one long suppressio
veri [suppression of the truth] and suggestio falsi [suggestion of
falsehood]”. Equity (revised ed by Brunyate Cambridge University
Press 1936) at 182.
[147]
Notwithstanding
considerable changes introduced in England by the Law of Property Act 1925,
the Law Commission considered that much more reform is still needed: see Transfer
of Land: Land Mortgages (Law Com No 204, 1991). See also Jackson,
“The Need to Reform the English Law of Mortgages” (1978) 94 LQR 571.
[148]
In either the
Registry of Deeds or Land Registry, depending on whether the debtor’s land is
unregistered or registered land: see paragraph 1.25 above.
[149]
See Lyall Land
Law in Ireland (2nd ed Round Hall Sweet & Maxwell 2000) at
776-778; Wylie Irish Land Law (3rd ed Butterworths 1997)
paragraphs 13.163 – 13.182. For detailed annotations on the 1850 Act and
the amending Judgment Mortgage (Ireland) Act 1858, see Wylie Conveyancing
Law (Butterworths Irish Annotated Statutes Series 1999) Part II.
[150]
Consultation
Paper on Judgment Mortgages (LRC CP 30 – 2004). See further Chapter
10 below.
[151]
Settled Land
Act, Trustee Act, Law of Property Act, Land Registration Act, Land Charges Act and
Administration of Estates Act.
[152]
By, eg, the
Law of Property Act 1969, Land Charges Act 1972, Local Land
Charges Act 1975, Law of Property (Miscellaneous Provisions) Acts 1989
and 1994, Trusts of Land and Appointment of Trustees Act 1996 and
Land Registration Act 2002.
[153]
By the Land Law
Working Party, which produced the Survey of the Land Law of Northern Ireland
(HMSO 1971), and the Land Law Working Group: see its Final Report (HMSO
1990). Professor Wylie was a member of both the Working Party and Working
Group.
[154]
See, eg the
Property (NI) Order 1978, Registration (Land and Deeds) (NI) Order 1992, Wills
and Administration Proceedings (NI) Order 1994, Property (NI) Order 1997 and
Ground Rents (NI) Order 2001.
[155]
See page vi above.
[156]
See
paragraph 1.03 above.
[157]
See paragraph 1.02 above.
[158]
See Milson The Legal Framework of English Feudalism (Cambridge
University Press 1976).
[159]
Except, of course, any land already held directly by the State and not held by
any other body or person.
[160]
See Lyall Land Law in Ireland (2nd ed Round Hall Sweet &
Maxwell 2000) Chapter 3; Wylie Irish Land Law (3rd ed
Butterworths 1997) Chapter 2.
[161]
Eg
Byrne v Ireland [1972] IR 24; Webb v Ireland [1988] IR 353; Howard v Commissioners of
Public Works [1994] 1 IR 101. See the discussion in Kelly “Hidden
Treasure and the Constitution” (1998) 10 DULJ 5; Morgan “Constitutional
Interpretation” (1998) 10 DULJ 24; Lenihan “Royal Prerogatives and the
Constitution” (1989) 24 Ir Jur (NS) 1; Costello “The Expulsion of the Royal
Prerogatives from Irish Law: Quantifying and Remedying the Loss of the Royal
Prerogative” (1997) 32 Ir Jur (NS) 145.
[162]
See Kelly The Irish Constitution (4th ed by Hogan and Whyte
Lexis Nexis Butterworths 2003) at 2110 ff.
[163]
See the discussion by the Supreme Court of Pennsylvania in Wallace v
Harmstad 44 Pa 492 (1863) and the US Supreme Court in Stuart v City of
Easton 170 US 383 (1898).
[164]
Eg
New York, Pennsylvania, Connecticut, Michigan, Minnesota, New Jersey, Arkansas,
Ohio, Wisconsin and Nevada. See Alexander “Time and Property in the
American Republican Legal Culture” (1991) 66 NYUL Rev 273; Chesnut (1942) 82 U
Penn L Rev; Kaufman (1949) 5 Maryland L Rev 1; Vance “The Quest for Tenure in
the United States” (1923-24) 33 Yale L J 248.
[165]
See
paragraph 1.03 above.
[166]
Matthews
v Ward’s Lease 10 Gill & J 443 (Maryland 1839); Van Rensselaar v
Hays 19 NY 68 (1859) Waltz v Security Trust & Savings Bank 197
Cal 263 (1925). The US Supreme Court took the same view: see Stuart v
City of Easton 170 US 383 (1898).
[167]
44 Pa 492 (1863). Charles II, by letters patent, granted the province of
Pennsylvania to William Penn and his heirs to be held in “free and common
socage” (see paragraph 1.05 above).
[168]
By such
“feudal names” Woodward J was referring to concepts like escheat (whereby the
land went to the State if the owner died without any successors), but he
pointed out that in the post-independence era escheat derived from “positive
statute” and not feudal tenure. Cf the State’s position under our Succession
Act 1965: see paragraph 2.06 below.
[169]
See
paragraph 2.02 above.
[170]
See
McDermott and Woulfe Compulsory Purchase and Compensation in Ireland: Law and
Practice (Butterworths 1992).
[171]
See Kelly op
cit fn 7 at 1969 ff.
[172]
Ie an
intermediate lord where sub-grants had been made by way of subinfeudation: see
paragraphs 1.06 – 1.07 above.
[173]
Members of
the family so designated by statute, now by Part VI of the Succession Act
1965.
[174]
See, in
relation to the previous law, In the Goods of Doherty [1961] IR 219.
[175]
Section 28
(2) (a). See Re Kavanagh and Cantwell, High Court, 23 November
1984.
[176]
See
paragraphs 1.03, 2.02 and 2.04 above.
[177]
See
paragraph 2.10 below.
[178]
The Court of
Wards and Liveries referred to in the 1639 Act (the mechanism whereby feudal
dues were enforced) was abolished by section 1 of the 1662 Act.
[179]
See further
on these paragraphs 2.25 fn 80 and 7.08 below.
[180]
In recent
times the State has divested itself of numerous relics from the history of our
land law system. Hence, eg, the dissolution of the Church Temporalities
Fund under section 7 of the Land Law Act 1984: see paragraph 7.05
below. As regards quit rents see paragraphs 2.25 fn 80 and 7.08 below.
[181]
See
paragraph 1.05 above.
[182]
See
paragraph 1.08 above.
[183]
Eg
Copyhold Act 1841 (4 & 5 Vic c 35) (see section 100). What
remained unrepealed of this Act was repealed by the Statute Law Revision Act
1983.
[184]
See again
paragraph 1.08 above.
[185]
See section
99.
[186]
This was
done in the North by the Statute Law Revision Act (NI) 1954.
[187]
See
paragraph 1.09 above.
[188]
See
paragraph 1.07 above.
[189]
Several of
the statutes refer specifically to lands in Ireland and others are couched in
such general terms that they must to be taken to have applied to all Crown land
(including, therefore, any such land in Ireland).
[190]
Replacing
Article 11 of the 1922 Constitution. See Kelly The Irish Constitution
(4th ed by Hogan and Whyte Butterworths 2003) at 179 ff.
[191]
Sections 2,
4 and 5 of this Act were extended to Ireland by sections 3, 5 and 7 of the Crown
Private Estates Act 1862.
[192]
This Act
related primarily to the sale of Irish “quit rents”: see paragraphs 2.25 fn 80
and 7.08 below.
[193]
C1. See
paragraph 1.06 above. See also the 1293 statute 21 Edw 1 c2 requiring
Irish tenants in chief to comply with English rules.
[194]
C2.
[195]
C3
prohibited alienation of land in “mortmain” (ie into the “dead hand” of
corporations or religious bodies like monasteries, which did not die, thereby
depriving the superior lord or Crown of incidents arising on death, such as
wardship, marriage and most important of all, escheat if the deceased left no
heirs). Mortmain restrictions were removed by the Mortmain (Repeal of
Enactments) Act 1954.
[196]
C1.
See paragraph 1.05 above.
[197]
Strictly the
holder of the largest freehold estate recognised under our land law system, the
fee simple.
[198]
See Lyall Land
Law in Ireland (2nd ed Round Hall Sweet & Maxwell 2000) at
340-341; Wylie Irish Land Law (3rd ed Butterworths 1997)
paras 2.46 and 4.054.
[199]
Re
Dunne’s Estate [1998] IR 155. See also Re Fitzsimons [1992] 1
IR 295.
[200]
See
paragraph 2.07 above.
[201]
See
paragraph 1.03 above.
[202]
In this
context the word “tenant” is used in its original tenurial sense (derived from
the Latin “teneo”, meaning “I hold”), ie, referring to a person who
holds land under some form of tenure. It should not be confused with its
more modern meaning, referring to a person who has a (leasehold) tenancy in
land. Leaseholds were not recognised by the feudal system: see paragraph
1.10 above.
[203]
See
paragraphs 2.02 – 2.07 above.
[204]
Paragraph
1.03 above.
[205]
Or some
“interest” falling short of an “estate”: ibid fn 8.
[206]
It is not
without significance that those jurisdictions which have developed an
e-conveyancing system have done so only in respect of registered land.
See, eg, as regards England and Wales, Part 8 of the Land
Registration Act 2002, which implements the joint report by the Law Commission
and Land Registry Land Registration for the Twenty-First Century (Cm
4027 1998).
[207]
See
paragraphs 1.03, 2.04 and 2.07 above.
[208]
Ie a fee
simple which is liable to determine upon the happening of an event (which may
or may not occur). If the event does occur the fee simple ends automatically
and the land reverts to the grantor (or successors in title) who originally
created it. Until the event does occur, the grantor has what is known as
a “possibility of reverter”.
[209]
Ie a
fee simple which may be determined by the grant or exercising a right of
re-entry upon a condition being satisfied.
[210]
See on this
Lyall op cit fn 43 at 175-203; Wylie op cit fn 43 paragraphs
4.046-4.056. One of the controversial points to arise was how far the
rule against perpetuities applied to such estates, but that would no longer
arise with the proposed abolition of that rule: see paragraph 3.01 below.
[211]
Ie
where it is granted to a person without a limitation over in favour of another
person: see Wylie op cit fn 43 paragraphs 8.022-8.023.
[212]
Note the
proposed radical reform of the legislation discussed in Chapter 4 below.
And see, in particular, paragraph 4.15.
[213]
See
paragraphs 1.12-1.16 above.
[214]
See
paragraphs 1.13-1.15 above.
[215]
See Lyall op
cit fn 43 Chapter 5; Wylie op cit fn 43 paragraphs 4.057-4.111.
[216]
Note the
aims for the Joint Project announced by the Minister for Justice in June 2004
(see p vii above) and the guiding principles adopted by the Commission’s Substantive
Law Working Group (see page 2 above).
[217]
Most modern
grants will have been created under Deasy’s Act 1860: see paragraph 1.15
above.
[218]
It is by no
means clear that the prohibition in section 27 of the Landlord and Tenant
(Ground Rents) (No. 2) Act 1978 on exercising a right of re-entry or
bringing ejectment proceedings for non-payment of rent in respect of
dwellinghouses applies to fee farm rents: see Wylie Irish Landlord and
Tenant Law (2nd ed Butterworths 1998) paragraph 2.22.
[219]
Initiated by
the Landlord and Tenant (Ground Rents) Act 1967. See also the Landlord
and Tenant (Ground Rents) (No. 2) Act 1978. See Wylie op cit
Chapter 31.
[220]
Section 2.
[221]
Section 2
(1).
[222]
This
interpretation point is exacerbated by the wording of section 8 of the 1978 (No
2) Act, which refers to a person having the “right as incident to his existing
interest in land to enlarge that interest into a fee simple and for that
purpose to acquire by purchase the fee simple in the land. (Emphasis
added). On the other hand, section 3 of the 1978 (No 2) Act defines
“lease” as including a fee farm grant and section 1(2) provides that that Act
is to be construed together with the “(No 1)” 1978 Act.
[223]
See Wylie Irish
Landlord and Tenant Law (2nd ed Butterworths 1998) Chapter 21.
[224]
Which is
subject to the limitations of the rule in Tulk v Moxhay, whereby the
burden of a negative covenant only will pass to successors in title and then
only in equity: see Lyall Land Law in Ireland (2nd ed Round
Hall Sweet & Maxwell 2000) Chapter 21; Wylie Irish Land Law (3rd
ed Butterworths 1997) Chapter 19.
[225]
Report on
Land Law and Conveyancing Law: (7) Positive Covenants over Freehold Land and
Other Proposals (LRC 70-2003). See further paragraph 7.29 below.
[226]
See
paragraphs 1.14 above and 2.34 below.
[227]
Fn 70 above.
[228]
Paragraph
2.34 below.
[229]
14 & 15
Vic c 20.
[230]
In essence
an action for debt and distress for rent but not ejectment for non-payment of
rent. The Act was held to be retrospective: see Major v Barton
(1851) 2 ICLR 28.
[231]
See Wylie Irish
Land Law (3rd ed Butterworths 1997) paragraphs 4.064 and 4.097.
[232]
Ibid
paragraphs 4.083 and 4.097.
[233]
9 Anne c 2.
[234]
See Wylie op
cit fn 76 paragraph 4.107.
[235]
Rents
payable under feudal grants that may have survived to modern times were most
likely to have been “quit rents” payable to the State, but these were written
off by the Minister for Finance in 1975, in exercise of the powers conferred by
section 12 of the State Property Act 1954: see paragraph 7.08 below.
[236]
13 Edw 1 c
1.
[237]
See Lyall Land
Law in Ireland (2nd ed Round Hall Sweet & Maxwell 2000) Chapter
14; Wylie Irish Land Law (3rd ed Butterworths 1997) Chapter
8.
[238]
4 & 5
Will 4 c92. See Lyall op cit fn 82 at 233-236; Wylie op cit
fn 82 paragraphs 4.123-4.125.
[239]
See Chapter
4 below.
[240]
One very
practical reason for this is that any arrangement which provides for successive
interests in land may give rise to an additional charge to Capital Gains Tax.
[241]
It was not
done in England by the 1925 property legislation, but has been effected now by
the Trusts of Land and Appointment of Trustees Act 1996, Schedule 1,
paragraph 5.
[242]
This was
what was recommended for the North in the Land Law Working Group’s Final
Report (HMSO 1990) Volume 1 paragraph 2.1.2.8 and Volume 3 (Property Order)
at 407-409.
[243]
C 1 was the
only part of this Statute to remain unrepealed after the Statute Law
Revision Act 1983, apart from c 15 which relates to an action on behalf of
a minor being brought by a “next friend”. Arguably c 15 can also be
repealed as such actions are now catered for by the Rules of the Superior
Courts, 0 15 rr 16 and 30: see Dunne v National Maternity Hospital
[1989] IR 91; Best v Wellcome Foundation Ltd [1993] 3 IR 421. This
issue is not concerned directly with land law and conveyancing.
[244]
Ie
apart from the Irish combined freehold/leasehold versions considered in
paragraphs 2.34 and 2.35 below.
[245]
See Lyall op
cit fn 82 Chapter 9; Wylie op cit fn 82 paragraphs 4.143-4.166
[246]
Again the word
“tenant’ is used here in the sense of the holder of the freehold life estate
and not in the leasehold sense: see paragraph 2.10 fn 47 above.
[247]
See Megarry
& Wade The Law of Real Property (6th ed by Harpum Sweet
& Maxwell 2000) paragraphs 4.029-4.055.
[248]
See Chapter
4 below.
[249]
Because
there must be a reversionary or remainder interest (eg a fee simple) to
fall into possession on the determination of the life interest.
[250]
See
paragraphs 1.14 and 1.16 above. For more detail see Lyall op cit
fn 82 at 251-272 ; Wylie op cit fn 82 paragraphs 4.167-4.178.
[251]
See
paragraph 1.14 above.
[252]
Presumably
in respect of rent and other obligations arising under covenants and conditions
in the old lease.
[253]
Note that
section 1(2) of the 1980 Act incorporates the definition of “fee simple”
contained in section 2(1) of the Landlord and Tenant (Ground Rents) Act 1967
and section 3 (1) of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978,
both of which define “fee simple” as not including the interest of a
person holding land under a fee farm grant. The proposals re
redemption of fee farm rents made earlier should apply also to section 74 fees
simple: see paragraph 2.23 above.
[254]
It was
pointed out earlier that the 1849 Act applied also to leases for years
renewable for ever (so that section 37 also converted post-1849 grants of these
into fee farm grants), but, probably by an oversight, section 74 of the 1980
Act applies only to pre-1849 leases for lives renewable for ever: see
paragraph 1.14 fn 53 above. This oversight should be corrected in the new
legislation.
[255]
See paragraph 2.37
below.
[256]
To do with
conferring the right to vote which used to apply to freeholders only and the
old law of inheritance: see FitzGibbon L J in Duckett v Keane [1903] 1
IR 409 at 413-41. See also Wylie op cit paragraph 4.177.
[257]
Such as was
recommended for the North in the Land Law Working Group’s Final Report
(HMSO 1990) and implemented in Article 37 of the Property (NI) Order 1997.
[258]
7 Will 3 c 8 This
Act facilitated proof of the “dropping” of lives: see Wylie op cit
paragraph 4.170.
[259]
7 Geo 3 c 20
(Ireland).
[260]
Section 11
extended protection from the law of waste conferred on lessees for lives
renewable for ever by the Timber Act 1765 (5 Geo 3 c 17) to fee farm
grantees.
[261]
17 & 18 Geo 3
c 49. This Act was part of the legislation enacted by the Irish
Parliament to promote Catholic Emancipation. Most of it (sections 1-10)
was repealed by the Statute Law Revision (Ireland) Act 1879 (42 & 43
Vic c 24).
[262]
This section
extended an express power in a settlement to grant leases for lives to a power
to grant a lease for a term of years determinable on lives.
[263]
19 & 20 Geo 3
c 30. This Act was passed to confirm the “old equity of the country”
developed by the Irish courts, whereby a lessee could obtain in equity a
renewal of lives long after the old ones had dropped. Doubts on this
jurisdiction had been expressed in Irish appeals to the House of Lords: Kane
v Hamilton 1 Ridgw P C 180; Bateman v Murray 1 Ridgw P C 187.
See Wylie op cit paragraphs 4.170-4.173.
[264]
1 & 2 Vic c
62. This Act enabled the Masters of the old Court of Chancery to order or
appoint renewals of leases for lives or years dependent on lives where the
persons supposed to make the appointment were out of the jurisdiction.
[265]
12 & 13 Vic c
105.
[266]
31 & 32 Vic c
62. This Act simply extended the 1849 Act to cover perpetually renewable
leases granted by governors of educational institutions.
[267]
See Lyall Land Law in Ireland (2nd ed Round Hall Sweet &
Maxwell 2000) Chapters 10 and 11; Wylie Irish Land Law (3rd
ed Butterworths 1997) Chapter 5.
[268]
LRC 62-2000.
[269]
See the draft Bill set out in Appendix A to the Report.
[270]
Paragraph 5.33.
[271]
Such dues were payable only by a person who was “seised” of the land: see Lyall
op cit fn 1 at 9; Wylie op cit fn 1 paragraph 4.018.
[272]
See paragraph 2.07 above.
[273]
Paragraph 5.33.
[274]
The standard method of avoiding the common law rules was to use a conveyance to
uses (or a modern trust). They also do not apply to dispositions made by
will, under which initially the legal title is vested in the deceased’s
personal representations and the beneficiaries have an equitable interest only.
[275]
An exception to this would be a possibility of reverter or right of re-entry
attached to a stand alone determinable fee or fee simple subject to a
condition: see paragraph 2.15 above.
[276]
This accords
with the scheme of the English Law of Property Act 1925.
[277]
See Chapter
4 below.
[278]
8 & 9
Vic c 106.
[279]
This section
related to the various ways in which a subsequent contingent remainder might be
saved from destruction, where the actions of holders of prior interests might
cause an “abeyance” of seisin: see Wylie op cit fn 1 paragraphs
5.023-5.028.
[280]
23 & 24
Vic c 38.
[281]
This section
relates to a particularly arcane point concerning the effect of certain
dispositions on seisin: see Wylie Conveyancing Law (Butterworths Irish
Annotated Statutes 1999) at 114.
[282]
40 & 41
Vic c 33. The Commission’s Report (LRC 62 – 2000) recommended repeal of
this statute: see paragraph 5.35.
[283]
55 & 56
Vic c 58. The Report also recommended repeal of this statute: see
paragraph 5.46.
[284]
1 & 2
Geo 5 c 37.
[285]
This section
resolved a doubt as to the applicability of the rule against perpetuities to
remedies for enforcing rentcharges conferred by section 44 of the Conveyancing
Act 1881. See paragraph 7.15 below.
[286]
See Lyall Land Law in Ireland (2nd ed Round Hall Sweet &
Maxwell 2000) Chapter 14 ; Wylie Irish Land Law (3rd ed
Butterworths 1997) Chapters 8-10.
[287]
See paragraph 1.22 above.
[288]
See paragraphs 1.07, 1.09 and 1.11 above.
[289]
See paragraphs 1.03 and 2.27 above.
[290]
See paragraphs 1.03 and 2.31 above.
[291]
See Megarry and Wade The Law of Real Property (6th ed by
Harpum Sweet & Maxwell 2000) Chapter 8.
[292]
See
paragraph 4.09 below.
[293]
Ie
whereby all settlements would operate under a trust with the trustees having
full, plenary powers to deal with the land: see paragraph 4.13 below.
[294]
See Donnellan Energy and Mineral Resources Law in Ireland ( Round Hall
Press 1985).
[295]
10 & 11
Chas 1 c 3. This Act was the source of what came to be known as “bishops’
lease” and “college leases”: see Wylie op cit fn 1 paragraphs 1.36 and
4.080.
[296]
10 Geo 1 c
5.
[297]
9 Geo 2 c 7.
[298]
15 Geo 2 c
10.
[299]
23 Geo 2 c
9.
[300]
1 Geo 3 c 8.
[301]
5 Geo 3 c
17.
[302]
5 Geo 3 c
20.
[303]
7 Geo 3 c 8.
[304]
7 Geo 3 c
20. See paragraph 2.37 fn 105 above.
[305]
15 & 16
Geo 3 c 26.
[306]
17 & 18
Geo 3 c 15.
[307]
17 & 18
Geo 3 c 35.
[308]
17 & 18
Geo 3 c 49. See paragraph 2.37 fn 107 above.
[309]
21 & 22
Geo 3 c 27.
[310]
23 & 24
Geo 3 c 39.
[311]
25 Geo 3 c
55.
[312]
25 Geo 3 c
62.
[313]
31 Geo 3 c
40.
[314]
35 Geo 3 c
23.
[315]
40 Geo 3 c
90.
[316]
46 Geo 3 c
71.
[317]
50 Geo 3 c
33.
[318]
11 & 12
Vic c 13.
[319]
14 & 15
Vic c 7.
[320]
14 & 15
Vic cxxvii (local and personal Act). See Wylie op cit fn 1
paragraphs 1.36 and 4.080. Trinity, like other Irish universities, now
has full powers of dealing with its land under the Universities Act 1997.
[321]
18 & 19
Vic c 39.
[322]
33 & 34
Vic c 56.
[323]
34 & 35
Vic c 84.
[324]
38 & 39
Vic c 11.
[325]
40 & 41
Vic c 31.
[326]
44 & 45
Vic c 65.
[327]
See Black Economic
Thought and the Irish Question (Cambridge University Press 1960); Goldstrom
and Clarkson (eds) Irish Population, Economy and Society (Clarendon
1981); O’Brien Economic History of Ireland in the Nineteenth Century
(Maunsel 1919).
[328]
Under the Incumbered
Estates (Ireland) Act 1849 (12 & 13 Vic c 77). See also the Incumbered
Estates (Ireland) Acts 1852 (15 & 16 Vic c 67), 1853 (16 &
17 Vic c 64), 1855 (18 & 19 Vic c 73) and 1856 (19 & 20
Vic c 67). These Acts were all repealed by the Statute Law Revision
Acts 1875 and 1892.
[329]
21 & 22
Vic c 72. See Wylie op cit fn 1 paragraph 1.42.
[330]
Over 10,000
estates were sold by 1870: ibid fn 212.
[331]
See
paragraph 1.19 above.
[332]
See
paragraph 1.20 above.
[333]
Paragraph
4.09.
[334]
21 & 22
Vic c 72.
[335]
24 & 25
Vic c 123.
[336]
As opposed
to powers (usually of leasing only) for specific purposes: see paragraph 4.02
above.
[337]
Not just
powers of leasing, but also, most significantly, powers to sell and mortgage
the land.
[338]
Settled
Estates Acts 1856 (19 & 20 Vic c 120), 1858 (21 & 22 Vic c
77), 1864 (27 & 28 Vic c 45), 1874 (37 & 38 Vic c 33) and
1876 (39 & 40 Vic c 30). These Acts were repealed and
consolidated in the Settled Estates Act 1877 (40 & 41 Vic c
18). They all applied to both England (and Wales) and Ireland.
[339]
See also the
Settled Land (Ireland) Act 1847 (10 & 11 Vic c 46) which authorised
trustees to improve settled land, provided the consent of the Court was
obtained. This does not seem to have had an equivalent in England and
Wales.
[340]
See, eg,
section 38 of the Settled Estates Act 1877.
[341]
See Ex
parte Puxley (1868) IR 2 Eq 237; Re Boyd’s Settled Estates (1874) IR
8 Eq 76. The Court could, however, dispense with such agreement in
certain cases (eg where the persons could not be found or trying to find
them would involve disproportionate expense): see 1877 Act sections 27-28.
[342]
Paragraph
4.13. This includes the obscure section 19 of the Administration of
Justice Act (Ireland) 1707 (6 Anne c 10), which relates to warranties given
by tenants for life.
[343]
10 & 11
Vic c 46.
[344]
40 & 41
Vic c 18.
[345]
See
paragraph 4.09 above.
[346]
See Lyall op
cit fn 1 Chapter 14; Wylie op cit fn 1 Chapter 8.
[347]
Ie,
the deed or will creating the settlement simply conveys or leaves the land
directly to persons in succession, eg to A for life, then to B in fee
tail, then to C in fee simple.
[348]
Thus, taking
the example in the previous footnote, the deed or will might convey or leave
the land to X and Y in fee simple to hold on trust for A for life, then for B
in fee tail, then for C in fee simple.
[349]
The only
difference from the example given in the previous footnote would be that the
deed or will would make it clear that X and Y are trustees for sale.
It is often a difficult question of construction whether or not the trust
involves an obligation to sell, so as to constitute a trust for sale:
see, eg, Re Horne’s Settled Estate (1888) 39 Ch D 84; Re
Wagstaff’s Settled Estates [1900] 2 Ch 201; Re Goodall’s Settlement
[1909] 1 Ch 440; Re Johnson [1915] 1 Ch 435.
[350]
The problem
stems from the operation of section 63 of the Settled Land Act 1882 and
its subsequent amendment by sections 6 and 7 of the Settled Land Act 1884
and section 10 of the Conveyancing Act 1911: see Lyall op cit fn
1 at 412-414; Wylie op cit fn 1 paragraphs 8.043-8.050.
[351]
In England
and Wales the Settled Land Act 1925 largely followed the structure of
the 1882-90 Acts and in their foreword to the sixth edition of their standard
text, the original authors (Sir Robert Megarry and Sir William Wade) record
that in the first (1957) and all later editions they had advocated abolition of
the 1925 scheme in favour of simpler forms of trust: The Law of Real
Property (6th ed by Harpum Sweet & Maxwell 2000) at v.
They were noting that they had at least lived to see that abolition with the
enactment of the Trusts of Land and Appointment of Trustees Act 1996:
see paragraph 4.13 below.
[352]
See the Settled
Land Act 1882 Parts III-VIII.
[353]
Survey of
the Land Law of Northern Ireland (HMSO 1971) Chapter 3.
[354]
Volume 1,
Chapters 2.3 and 2.4. See also the draft legislation set out in Volume 2
at 463-548.
[355]
Part
I. It was based on the recommendations in the Law Commission’s Report Transfer
of Land: Trusts of Land (Law Com No 181 1999). See Megarry and Wade op
cit fn 66 Chapter 8.
[356]
Paragraph
4.13 above.
[357]
Paragraph
4.11 above.
[358]
Settled
Land Act 1882 sections 59-60: see Wylie op cit fn 1 paragraphs 8.026
and 25.03.
[359]
Cf
1882 Act section 62. Persons suffering from a mental incapacity should be
dealt with under the courts’ jurisdiction, arising under the Lunacy
Regulation (Ireland) Act 1871, re wards of court: see Courts
(Supplemental Provisions) Act 1961 section 9 and Rules of the Superior
Courts 1986 0 67 and Rules of the Circuit Court 2001 0 47; Costello
“Wards of Court – A General Guideline of the Procedures Involved” (1993) 78 Gaz
ILSI 143.
[360]
See
paragraph 2.15 above.
[361]
The same principle
should apply in the not uncommon case where the fee simple is vested subject to
a power of revocation.
[362]
Eg
where a farmer leaves the farm to his son, but subject to the right of his
widow to reside in the farmhouse for the rest of her days. See Lyall op
cit fn 1at 525-531; Wylie op cit fn 1 paragraphs 20.13-20.24.
[363]
See Registration
of Title Act 1964 section 81; Fitzgerald Land Registry Practice (2nd
ed Round Hall 1995) at 37, 208 and 247.
[364]
Ie it
is not shared with others.
[365]
Ie as
opposed to part only of the land in question.
[366]
See Kelaghan
v Daly [1913] 2 IR 328; Re Shanahan [1919] 1 IR 131; National
Bank v Keegan [1931] IR 344; Johnston v Horace [1993] ILRM 594.
[367]
Even in the
case of a strict settlement, where no trust is created initially (see paragraph
4.11 above), trustees “of the settlement” should still be specified, because
once any of the statutory powers under the 1882-90 Acts are exercised so as to
raise capital money (eg the power of sale), that must be paid to such
trustees rather than the limited owner exercising the statutory power.
This is the vital protection for the other persons interested under the
settlement and for the person (eg the purchaser in the case of a sale)
dealing with the limited owner. See Lyall op cit fn 1 at 405-409;
Wylie op cit fn 1 paragraphs 8.031-8040.
[368]
See 1882 Act
section 39 (1). There seems no particular reason to impose a maximum
limit on the number of trustees.
[369]
See
paragraph 4.13 above.
[370]
This is the
position under the English Trusts of Land and Appointment of Trustees Act
1996: see section 8.
[371]
Cf
sections 10 and 11 of the English 1996 Act.
[372]
Cf
section 16 of the English 1996 Act.
[373]
Cf
sections 14 and 15 of the English 1996 Act.
[374]
See further, the Law Reform Commission Report on the Variation of Trusts
(LRC 63-2000) (December 2000).
[375]
45 and 46
Vic c 38.
[376]
47 & 48
Vic c 18.
[377]
50 & 51
Vic c 30.
[378]
52 & 53
Vic c 36.
[379]
53 & 54
Vic c 69.
[380]
This section
related to trusts for sale: see Wylie Conveyancing Law (Butterworths
Irish Annotated Statutes 1999) at 328-329.
[381]
See Chapter 4 above.
[382]
Who may be a trustee in the case of a trust.
[383]
See Lyall Land Law in Ireland (2nd ed Round Hall Sweet &
Maxwell 2000) Chapter 13; Wylie Irish Land Law (3rd ed
Butterworths 1997) Chapter 11.
[384]
The other type of power commonly used in practice is a power of attorney, but
the law relating to this was recently overhauled in the Powers of Attorney
Act 1996. This Act was partly based on the recommendations contained
in the Commission’s Report on Land Law and Conveyancing Law : (2) Enduring
Powers of Attorney (LRC 31 – 1989). See Wylie op cit fn 3
paragraphs 11.29-11.51.
[385]
11 Geo 4 & 1 Will 4 c 46.
[386]
See Lyall op cit at 373-374; Wylie op cit paragraph 11.20.
[387]
See
the judgment of Lord Nottingham L C in Gibson v Kinven (1682) 1 Vern 66;
also Vanderzee v Aclom (1799) 4 Ves 771 at 784-785 (per Arden
MR).
[388]
See Howe “Exclusive and Nonexclusive Powers and the Illusory Appointment”
(1944) 42 Mich L Rev 649.
[389]
Section 158. See paragraph 5.04 below.
[390]
37 & 38
Vic c 37.
[391]
See
paragraph 5.02 above. Note that this creates a presumption only, so that
it is open to a settlor to rebut the presumption.
[392]
Farwell Powers
(3rd ed 1916) at 427.
[393]
22 & 23
Vic c 35.
[394]
See Lyall op
cit at 373; Wylie op cit paragraph 11.14.
[395]
The subject of
those requirements is dealt with later. See paragraph 8.32 below.
[396]
44 & 45
Vic c 41.
[397]
See Lyall op
cit fn 3 at 369; Wylie op cit fn 3 paragraph 11.03 and 11.26.
[398]
See Wylie op
cit fn 3 paragraphs 11.11 and 11.26.
[399]
Ibid
paragraphs 11.09 and 11.26.
[400]
45 & 46
Vic c 39.
[401]
See section
6 (2).
[402]
See Wylie op
cit fn 3 paragraph 11.27.
[403]
See Lyall Land Law in Ireland (2nd ed Round Hall Sweet &
Maxwell 2000) Chapter 10; Wylie Irish Land Law (3rd ed
Butterworths 1997) Chapter 7. See also Conway Co-ownership of Land:
Partition Actions and Remedies (Butterworths 2000).
[404]
Section 34-36. See Megarry & Wade The Law of Real Property (6th
ed by Harpum, Sweet & Maxwell 2000) Chapter 9.
[405]
Other traditional forms of co-ownership, such as co-parcenary and a tenancy by
the entireties, have ceased to have any significance in modern times: see Lyall
op cit fn 1 at 443-445; Wylie op cit fn 1 paragraphs 7.40-7.52.
[406]
Report
on Land Law and Conveyancing Law: (7) Positive Covenants over Freehold Land and
Other Proposals (LRC 70 2003) paragraph 5.05.
[407]
See paragraph 4.13 above.
[408]
See section 5 and Schedule 2. See also Megarry & Wade op cit
fn 2 paragraphs 9.051-9.054.
[409]
See Lyall op cit fn 1 at 435-443; Wylie op cit fn 1 paragraphs
7.22-7.32.
[410]
See paragraph 6.02 above.
[411]
Report
on Land Law and Conveyancing Law: (1) General Proposals (LRC 30-1989) at
11-12. This pointed out the current need to employ a “conveyance to uses”
and such relics from the past should be removed generally: see paragraph 8.13
below. The earlier recommendation was reiterated in the Report on Land
Law and Conveyancing Law: (7) Positive Covenants over Freehold Land and Other
Proposals (LRC 70-2003) paragraph 5.02.
[412]
LRC 70-2003,
Chapter 5.
[413]
LRC CP
30-2004.
[414]
Paragraph
6.16. It was also recommended that the effect of a judgment mortgage on a
joint tenancy should be the same whether the land is registered or not:
paragraph 6.12.
[415]
See Re
Kennedy Estates High Court (Kearns J) 31 January 2000.
[416]
Re
Phene’s Trusts (1870) 5 Ch App 139.
[417]
LRC 70-2003,
Chapter 3.
[418]
Both joint
tenants and tenants in common.
[419]
Originally
by the old Irish Parliament – the Joint Tenants Act (Ireland) 1542 (33
Hen 8 c 10), subsequently amended by the Partition Act (Ireland) 1697 (9
Will 3 c 12). The 1542 Act was repealed by the Statute Law Revision
(Pre-Union Irish Statutes) Act 1962 and caused doubts as to whether the
courts’ jurisdiction survived – it probably did, at least under the courts’
inherent equitable jurisdiction: see O’D v O’D High Court (Murphy J) 18
November 1983; F v V [1987] ILRM 1. The Commission recommended
that this doubt be resolved by statute: see Report on Land Law and
Conveyancing Law: (1) General Proposals (LRC 30-1989) paragraphs 16-17.
[420]
31 & 32
Vic c 40.
[421]
39 & 40
Vic c 17.
[422]
For a detailed
discussion of the operation of the Acts see Conway op cit fn 1.
[423]
Final
Report of the Land Law Working Group (HMSO 1990) Volume 2 (Property Order)
at 454-455.
[424]
Law of
Property Act 1925 section 28.
[425]
See Consultation
Paper on Judgment Mortgages (LRC CP 30-2004) paragraph 6.19.
[426]
See Chapter
10 below.
[427]
For detailed
discussion of this subject see Conway op cit fn 1 Chapter 11.
[428]
6 Anne c 10.
[429]
62 & 63
Vic c 20.
[430]
See Wylie op
cit fn 1 paragraph 7.05.
[431]
See Lyall op
cit fn 1 Chapter 17; Wylie op cit paragraphs 25.15-25.16.
[432]
See the
comparative study (including Ireland) in Mee The Property Rights of
Cohabitees (Hart Publishing 1999). Note also the English Court of
Appeal’s recent attempt at rationalisation in Oxley v Hiscock [2004] 3 All ER 703.
[433]
Or other body
dealing with the legal owner, eg, a lending institution taking a
mortgage of the land as security for a loan.
[434]
Under, eg,
the doctrine of constructive notice. See Wylie Irish Conveyancing Law
(2nd ed 1996) paragraph 16.23. Note also section 72 (1)(j) of
the Registration of Title Act 1964 which classifies “the rights of every
person in actual occupation of the land” as a burden affecting registered land without
registration. See Conlon “Beneficial Interests – Conveyances and the
Occupational Hazard” Law Society Gazette, March 1985; Pearce “Joint Occupation
and the Doctrine of Notice” (1980) 15 Ir Jur (ns) 211.
[435]
Consultation
Paper on Rights and Duties of Co-habitees (LRC CP 32-2004), especially Chapter
3.
[436]
Ibid
paragraph 3.51.
[437]
Ibid
paragraph 3.57.
[438]
Ibid
paragraph 3.62.
[439]
Ibid
paragraph 3.88.
[440]
Paragraph
6.17 above.
[441]
This would
not, of course, stop the claimant enforcing the equitable interest against the
proceeds of sale or loan money in the hands of the vendor or mortgagor, under
the usual equitable doctrine of tracing.
[442]
Final
Report of the Land Law Working Group (HMSO 1990) Volume 1 paragraphs
2.2.14-2.2.34 and Volume 2 (Property Order) at 447-450.
[443]
See Re
Commonage at Glennamaddoo [1992] 1 IR 297.
[444]
29 Geo 3 c
30.
[445]
31 Geo 3 c
38.
[446]
See Wylie Irish
Land Law (3rd ed Butterworths 1997) paragraphs 7.53-7.62.
[447]
8 Geo 1 c
5. Cf the private and local Dublin Corporation Act 1890 (53
& 54 Vict c 246). See Wylie op cit fn 44 paragraphs 7.57-7.62.
[448]
Party
Wall etc Act 1996. See Roadrunner Properties Ltd v Dean [2004]
11 EG 140.
[449]
Access to
Neighbouring Land Act 1992.
[450]
See paragraphs 1.03 and 2.10 above.
[451]
The qualification is made here because one form of incorporeal hereditament, a
profit ŕ prendre (see paragraph 7.02 below), can exist in gross, ie
it is not necessarily appurtenant to land and can be owned by someone who owns
no estate or other interest in land. Thus such a person may hold fishing
rights in a river or stream owned by someone else.
[452]
See Lyall Land Law in Ireland (2nd ed Round Hall Sweet &
Maxwell 2000) Chapter 22; Wylie Irish Land Law (3rd ed
Butterworths 1997) Chapter 6.
[453]
See Bland The Law of Easements and Profits ŕ Prendre (Round Hall Sweet
& Maxwell 1997).
[454]
See paragraph 7.11 below.
[455]
See paragraph 7.05 below.
[456]
See paragraph 7.07 below.
[457]
Eg
where a house owner has a very large garden and sells off part of it as a
building plot.
[458]
Eg
where a developer divides a large building site into plots, upon each of which
a new house will be built, ie the typical housing estate.
[459]
The law
relating to leasehold covenants is relatively straightforward and effective:
see Wylie Irish Landlord and Tenant Law (2nd ed Butterworths
1996) Chapter 21.
[460]
See Lyall op
cit fn 3 Chapter 21; Wylie Irish Land Law op cit fn 3 (3rd
ed Butterworths 1997) Chapter 19.
[461]
Under the
rule in Tulk v Moxhay: see authorities in fn 11 above.
[462]
To some
extent it depends on the impact of registration systems: see paragraphs
1.25-1.29 above.
[463]
The latter,
as it is often put, “bind the world”.
[464]
Eg a bona
fide purchaser of a legal estate without notice of the equitable right to
enforce a freehold restrictive covenant. On the operation of this
doctrine see Lyall op cit fn 3 at 122-130; Wylie op cit fn 3
paragraphs 3.069-3.090.
[465]
See
paragraph 7.29 below.
[466]
See Lyall op
cit fn 1 at 765-766; Wylie op cit fn 1 paragraphs 6.120-6.128.
[467]
The Repeals
Schedule to the Land Act 1984 listed the Tithe Rentcharge (Ireland)
Act 1900, but not the earlier Acts listed below.
[468]
5 & 6
Will 4 c 74.
[469]
1 & 2 Vic
c 109.
[470]
2 & 3
Vic c 3.
[471]
11 & 12
Vic c 80.
[472]
Section 10.
[473]
See Lyall op
cit fn 3 at 766; Wylie op cit fn 3 paragraphs 6.018-6.019.
[474]
See
paragraphs 1.19-1.20 above.
[475]
See State
Property Act 1954 sections 13-15.
[476]
See Wylie op
cit fn 3 paragraph 6.008.
[477]
See
paragraph 1.07 above and Wylie op cit fn 3 paragraphs 6.009-6.012.
[478]
By then just
over 100 rents yielding the princely annual sum of Ł129 were still being
collected!
[479]
2 Anne c 8,
which related to quit rents. See Wylie op cit fn 3 paragraph
6.010.
[480]
Most other
legislation relating to these rents has either been repealed already (eg,
the Plantation Statutes of 1662 and 1665) by the Statute Law
Revision (Pre-Union Irish Statutes) Act 1962 or has been recommended for
repeal earlier (eg the Crown Lands Act 1906: see paragraph 2.08
above).
[481]
See Lyall op
cit fn 3 at 764-765; Wylie op cit fn 3 paragraph 6.020.
[482]
As a result
of the Supreme Court’s ruling that such prerogatives are inconsistent with the
Constitution: see Byrne v Ireland [1972] IR 241: Webb v Ireland [1988] IR 353. See paragraph 2.03
above.
[483]
See Lyall op
cit at 767-768; Wylie op cit paragraph 6.021. Article 40.2.1
of the Constitution prohibits the conferring of “titles of nobility”: see Kelly
The Irish Constitution (4th ed by Hogan & Whyte Lexis
Nexis Butterworths 2003) at 1387-8.
[484]
See
paragraph 2.25 above.
[485]
See Lyall op
cit at 757-764; Wylie op cit paragraphs 6.131-6.145.
[486]
See
paragraphs 1.13-1.15 above.
[487]
Eg a
fee tail or life estate: see paragraph 4.01 above.
[488]
Future
creation of rentcharges was prohibited in England by the Rentcharges Act
1977, but excluded were settlement rentcharges and so-called “estate”
rentcharges (ie where they are used as an indirect means of securing
enforcement of positive freehold covenants). See Megarry & Wade The
Law of Real Property (6th ed by Harpum, Sweet & Maxwell,
2000) paragraphs 18.014-18.039. The recommendations made later remove the
need for the latter device: see paragraph 7.29 below.
[489]
See
paragraph 13.12 below.
[490]
Other
legislation in the 19th century which could be used would have been
the Landed Estates Court (Ireland) Act 1858, but that involved
applications to court: see paragraphs 4.05-4.08 above.
[491]
27 & 28
Vic c 38.
[492]
Which might
include whether it applies to rentcharges as opposed to feudal rent services
and leasehold rents.
[493]
Section
2. If they agree, what is the need for legislation?
[494]
See Lyall op
cit fn 3 at 764; Wylie op cit fn 3 paragraph 4.074.
[495]
Paragraph 2.23
above.
[496]
44 & 45
Vic c 41.
[497]
1 & 2
Geo 5 c 37.
[498]
Re
McGuinness’s Contract 1901) 1 NIJR 49; Re Ryan’s Trusts (1901) 1
NIJR 138: Re McSwiney and Harnett’s Contract [1921] 1 IR 178, Re
Malone (1937) 71 ILTR 26. See Wylie Conveyancing Law
(Butterworths Irish Annotated Statutes 1992) at 162.
[499]
Note that
section 45 of the 1881 Act dealt specifically with redemption of rentcharges,
but this section did not, unlike the rest of the Act, apply to Ireland:
see subsection (7). Presumably this was because of the existence here of
the 1864 Act (paragraph 7.13 above) and the Landed Estates Court (fn 41 above).
[500]
22 & 23
Vic c 35. See Wylie op cit fn 49 at 99-111.
[501]
Coke upon
Littleton (19th ed 1832) 147b and 147c.
[502]
See Booth
v Smith (1884) 14 QBD 318; Price v John [1905] 1 Ch 744 Wylie op
cit at 103. The same applies to section 11 of the 1859 Act which
applies to partial release of judgments.
[503]
Strictly
leasehold rents are outside the scope of this Consultation Paper: see paragraph
7 of the Introduction, page 4 above.
[504]
See Brady Succession Law in Ireland (2nd ed Butterworths
1995) at 322; Keating Keating on Probate (2nd ed Round Hall
Sweet & Maxwell 2002).
[505]
44 & 45
Vic c 41.
[506]
1 & 2
Geo 5 c 37.
[507]
Which did
not apply to a rentcharge, as opposed to a feudal or leasehold rent (known as a
rent “service”: see paragraphs 2.25 and 7.11 above), at common law. The
remedy was, however, originally extended to rentcharges by the Distress for
Rent Act (Ireland) 1712 (9 Anne c 2).
[508]
There are doubts
about the constitutionality of some aspects of the remedy: see Wylie Irish
Landlord and Tenant Law (2nd ed Butterworths 1996) paragraph
12.15.
[509]
There is
very little evidence of it being used in modern times in respect of commercial
or mixed used premises.
[510]
Paragraph
3.01 above.
[511]
See
paragraph 7.02 above.
[512]
The issue of
what rights can constitute an easement in particular would seem to be one best
left to be developed judicially: see, eg, the judgment of Shanley J in Redfont
Ltd v Custom House Dock Management Ltd High Court, (Shanley J) 31 March
1998 (concerning an easement of “parking” vehicles).
[513]
See Bland The
Law of Easements and Profits ŕ Prendre (Round Hall Sweet & Maxwell
1997).
[514]
Report on
the Acquisition of Easements and Profits ŕ Prendre by Prescription (LRC
66-2002).
[515]
Note the
draft Bill in Appendix A to the 2002 Report.
[516]
2 & 3
Will 4 c 71.
[517]
21 & 22
Vic c 42. This Act simply extended the 1832 Act to Ireland.
[518]
Registration of Title Act 1964 section 125. See Fitzgerald Land
Registry Practice (2nd ed Round Hall 1995) at 35-36.
[519]
See Wylie Irish
Land Law (3rd ed Butterworths 1997) paragraph 6.054.
[520]
Report on
Land Law and Conveyancing Law: (6) Further General Proposals (LRC 56-1999)
Chapter 1(4).
[521]
Paragraph
8.43 (re section 51 of the 1881 Act) below.
[522]
See
paragraph 8.20 below.
[523]
See
paragraph 8.43 below.
[524]
And usually
to be enjoyed in respect of land retained by the grantor. A typical claim
would be for a right of way over the retained land to provide access to the
land conveyed or transferred to the grantee.
[525]
See Bland op
cit fn 64 Chapter 12.
[526]
(1879) 1 2
Ch D 31.
[527]
See Bland op
cit fn 64 paragraphs 12.05 – 12.11.
[528]
Head v
Meara [1912] 1 IR 262 at 265 (per Ross J).
[529]
25 February
2004. Keane C J, giving the judgment of the Court (the other members were
Murray and Geoghegan JJ) approved of earlier views given by Barron J in Connell
v O’Malley High Court, 28 July 1983.
[530]
It is
important to note that the non-derogation doctrine is not confined to rights which
comprise easements or profits and the new legislation should make it clear
that, in applying it to acquisition of easements and profits, it is not
restricting the doctrine’s scope in other respects. For recent use of the
doctrine in the context of landlord and tenant law see Wylie Irish Landlord
and Tenant Law (2nd ed Butterworths 1996) paragraphs 14.12,
15.13 and 17.08.
[531]
Eg:
“the presumed intention of the parties” (per Barron J in Connell v
O’Malley, approved by the Supreme Court in the William Bennett
Construction case, fn 80 above); “A grantor having given a thing with one
hand is not to take away the means of enjoying it with the other” (per
Bowen LJ in Birmingham Dudley & District Banking Co v Ross (1888) 38
Ch D 295 at 313); “If A lets a plot to B, he may not act so as to frustrate the
purpose for which in the contemplation of both parties the land was hired” (per
Lord Loreburn LC in Lyttleton Times Co Ltd v Warners Ltd [1907] AC 476 at 481. See also the
discussion by Nicholls LJ in Johnston & Sons Ltd v Holland [1988] 1
EGLR 264 at 267.
[532]
Sometimes
referred to as a statutory “word-saving” provision, it is also dealt with
later: see paragraph 8.43 below.
[533]
See Bland op
cit fn 64 paragraphs 12.12-12.16.
[534]
See
paragraph 7.22 above.
[535]
Section 6
was replaced in England and Wales by section 62 of the Law of Property Act
1925.
[536]
Cf Broomfield
v Williams [1897] 1 Ch 602; Long v Gowlett [1923] 2 Ch 177; Ward
v Kirkland [1967] Ch 194.
[537]
[1977] 2 All ER 385 at 391 (per Lord
Wilberforce) and 397-398 (per Lord Edmund-Davies). See also Squarey
v Harris-Smith (1987) 42 P & CR 118; Payne v Inwood (1996) 74 P
& CR 42. See Harpum “Easements and Centre Point: Old Problems
Resolved in a Novel Setting” (1977) 41 Conv 415; Smith “Centre Point :
Faulty Towers with Shaky Foundations” [1978] Conv 449; Harpum “Long v Gowlett :
A Strong Fortress” [1979] Conv 113.
[538]
See
paragraph 7.22 above.
[539]
See
paragraph 8.43 below.
[540]
And its English
replacement (section 62 of the Law of Property Act 1925).
[541]
None of
which, however, involves the highest court (the House of Lords): see International
Tea Stores Ltd v Hobbs [1903] 2 Ch 165; White v Williams [1922] 1 KB
727; Wright v Macadam [1949] 2 DB 744; Goldberg v Edwards [1950]
Ch 247; Graham v Philcox [1984] QB 747.
[542]
Jeffers v
Odeon (Ireland) Ltd (1953) 87 ILTR 187.
[543]
As a bare or
revocable licence: see Lyall Land Law in Ireland (2nd ed
Round Hall Sweet & Maxwell 2000) at 510; Wylie Irish Land Law (3rd
ed Butterworths 1997) paragraph 20.03.
[544]
As the
section permits: see subsection (4).
[545]
See Tee
“Metamorphoses and Section 62 of the Law of Property Act 1925” [1998] Conv 115.
[546]
Which refer
back to the point about prior diversity and non-application to quasi-rights
made in the previous paragraph.
[547]
See
paragraph 1.03 above.
[548]
Again this
would also offend the rule that one cannot have rights against oneself: see
paragraph 7.25 above.
[549]
Paragraph 7.22
above.
[550]
See paragraph 8.43
below.
[551]
See paragraph 6.21
above.
[552]
54 & 55 Vic c
45.
[553]
See paragraphs
1.19-1.20.
[554]
See Introduction
paragraph 7, page 4 above.
[555]
See paragraph 7.03
above.
[556]
Report on Land
Law and Conveyancing Law: (7) Positive Covenants over Freehold Land and Other
Proposals (LRC 70-2003) Chapter 1.
[557]
Note the draft
legislation in Appendix A to the Report. There is a statutory precedent
for rendering freehold covenants enforceable against successors in title.
Section 10 (4) (b) of the State Property Act 1954 provides that
covenants, creditors and agreements contained in grants made of State land
“shall be equally binding on, and enforceable against, any person claiming
through or under the original grantee as if the grant had been made to that
person.”
[558]
In the common case
where the owner of a large parcel of land sells off various parts of the parcel
to different purchasers, but retains some of the land that owner will retain
the deeds relating to the entire parcel and each purchaser will simply obtain
the deed relating to the part sold to that purchaser.
[559]
Subsection (2).
[560]
See Wylie Irish Conveyancing Law (2nd ed Butterworths 1996)
and Conveyancing Law (Butterworths Irish Annotated Statutes 1999).
[561]
7 Will 3 c 12.
[562]
See Farrell Irish Law of Specific Performance (Butterworths 1994)
Chapter 3; Wylie Irish Conveyancing Law (2nd ed Butterworths
1996) Chapter 6.
[563]
LRC 59 – 1989.
[564]
Paragraphs 3.18-3.21. See also the Report on Land Law and Conveyancing
Law: (6) Further General Proposals Including the Execution of Deeds (LRC 56
– 1998) Chapter 3.
[565]
Boyle
v Lee [1992] ILRM 65; Supermac’s Ireland Ltd v Katesan (Naas) Ltd
[2000] 4 IR 273. See also Geoghegan J’s judgment in Shirley
Engineering Ltd v Irish Telecommunications Investments PLC High Court, 2
December 1999 and O’Sullivan J’s judgment in Higgins v Argent Developments
Ltd High Court, 1 February 2002, affirmed by the Supreme Court 13 May 2003.
[566]
Paragraph 3.21.
[567]
Law
of Property (Miscellaneous Provisions) Act 1989 section 2 (which requires
the entire contract to be put in writing). See, eg Spiro v Glencrown
Properties Ltd [1991] 1 All ER 600; Record v Bell (1991) P & CR
192; Tootal (Clothing) Ltd v Guinea Properties Ltd [1992] 64 P & CR
452. Barnsley Conveyancing Law and Practice (4th ed by
Thompson Butterworths 1996) Chapter 5; Megarry & Wade The Law of Real
Property (6th ed by Harpum 2000) paragraphs 12.018-12.044.
[568]
Which
will inevitably change dramatically how contracts are made and transfers of
land are effected – essentially by instantaneous electronic transmission, as
envisaged by the Electronic Commerce Act 2000 (which currently exempts
contracts for the sale of land: see section 10 (1)).
[569]
It should be
noted that the 1695 Statute deals with other matters outside the scope of this
Consultation Paper. Section 2 also covers contracts relating to
guarantees, agreements upon consideration of marriage and agreements not to be
formed within a year. Section 4-6, which also remain in force, relate to
the law of trusts and will be considered by the Commission’s Working Group
dealing with that area of the law.
[570]
Law of
Property Act 1925 section 40, which was replaced by section 2 of the Law
of Property (Miscellaneous Provisions) Act 1989: see fn 8 above.
[571]
[1976] IR
101.
[572]
See Farrell op
cit fn 3 Chapter 11; Wylie Irish Conveyancing Law (2nd ed
Butterworths 1996) Chapter 12.
[573]
Thus, taking
the typical situation where the purchaser pays a 10% deposit on entering into
the contract, a 10% beneficial interest only is acquired.
[574]
This was
held to be the position by the dissenting judge in Tempany v Hynes,
Henchy J. He subsequently suggested that the Court might some day revisit
the matter: see Hamilton v Hamilton [1982] IR 466 at 484. See also
the similar comment by McCarthy J in Doyle v Hearne [1987] IR 601 at
617.
[575]
Report on
Land Law and Conveyancing Law: (1) General Proposals (LRC 30 – 1989) paragraphs
24-27; Report on Interests of Vendor and Purchaser in Land During the Period
Between Contract and Completion (LRC 49 – 1995) paragraph 4.18.
[576]
(1874) LR 7
H L 158.
[577]
See Wylie op
cit fn 13 paragraphs 13.79-13.87.
[578]
Report on
Land Law and Conveyancing Law: (1) General Proposals (LRC 30 – 1989)
paragraphs 30-32.
[579]
Law of
Property (Miscellaneous Provisions) Act 1989 section 3.
[580]
See
paragraphs 1.19-1.20.
[581]
Sections 12,
13 and 45. See Wylie op cit fn 13 paragraphs 16.29-16.53.
[582]
See Laffoy “Section
45 of the Land Act 1965 and the Right of Establishment in European
Communities” (1982-83) 6 Journal of Irish Society for European Lawyers 26.
[583]
Report on
Land Law and Conveyancing Law: (1) General Proposals (LRC 30 – 1989)
paragraphs 37-38.
[584]
No 35 of
2004, presented to the Senate by Senator Mary O’Rourke on 13 July 2004.
[585]
By repeal of
sections 12 and 45 of the Land Act 1965: see section 12 (d).
[586]
See Marshall
“Compulsory Registration and the Irish Church Act 1869” Gaz ILSI,
January/February 1983; Fitzgerald Land Registry Practice (2nd
ed Round Hall 1995) at 380-383.
[587]
Report on
Land Law and Conveyancing Law: (1) General Proposals (LRC 30 – 1989)
paragraphs 43-44.
[588]
See further
Chapters 11 and 13 below.
[589]
In passing
it should be noted that some previous recommendations of the Commission have
already been implemented or covered by legislation : (i) removal of restrictions
on “convicts” disposing of land (see Report on Land Law and Conveyancing Law
: (1) General Proposals (LRC 30 - 1989) paragraphs 33-34 : see Criminal
Law Act 1997 (repealing Forfeiture Act 1870); (ii) imposing a 5-year
limit on seeking a planning injunction in respect of completed unauthorised
developments or unauthorised use of land (ibid paragraphs 35-36): see Planning
and Development Act 2000 section 160 (6) (imposing a 7-year limit in
respect of unauthorised developments); (iii) imposing a 6-year limit on
challenging conveyances on the ground of failure to obtain consent under the Family
Home Protection Act 1976 (ibid paragraphs 39-42): see Family Law
Act section 1995 54(1)(b)(ii).
[590]
Report on
Land Law and Conveyancing Law: (3) The Passing of Risk from Vendor to Purchaser
(LRC 39 – 1991).
[591]
Report on
Land Law and Conveyancing Law: (4) Service of Completion Notices (LRC 40 –
1991).
[592]
Conditions
40 and 43 of the General Conditions of Sale (1995 ed). See Wylie op
cit fn 13 paragraphs 12.36- 12.43 and 13.20-13.24.
[593]
The provisions
are now to be found in conditions 40 and 43 of the General Conditions of
Sale (2001 ed).
[594]
Paragraph
8.04 above.
[595]
30 & 31
Vic c 48.
[596]
See Wylie op
cit fn 13 Chapters 2 and 3.
[597]
See 2001 ed,
Condition 4: Wylie op cit fn 13 paragraphs 2.14-2.25.
[598]
Cf
the recasting proposed for the North in the Land Law Working Group’s Final
Report (HMSO 1990) Volume 2 at 551-552.
[599]
See sections
7 and 8.
[600]
See Wylie op
cit fn 13 paragraphs 11.04-11.07.
[601]
Rules of
the Superior Courts 1986 Order 51; Circuit Court Rules 2001 Order 43.
[602]
37 & 38 Vic c 78.
[603]
The
so-called “open” contract situation, to be distinguished from a “closed”
contract containing express provisions as to the title to be shown. See
Wylie op cit fn 13 Chapter 14.
[604]
Report on
Land Law and Conveyancing Law: (1) General Proposals (LRC 30 – 1989)
paragraphs 8-9.
[605]
Law of
Property (Miscellaneous Provisions) Act 1989 section 23.
[606]
Statute
of Limitations 1957 sections 13, 48-49 and 71.
[607]
See Wylie op
cit fn 13 paragraphs 14.68-14.75.
[608]
See Law
Society Conveyancing Handbook Chapter 4.4 and 4.5.
[609]
(1881) 17 Ch
D 353. See Wylie op cit fn 13 paragraphs 14.71-14.73.
[610]
Law of
Property Act 1925 section 44(5): see Wylie op cit fn 13 paragraph
14.72.
[611]
Cf
England and Wales: see Barnsley Conveyancing Law and Practice (4th
ed by Thompson Butterworths 1996) at 611.
[612]
But not the
validity of the contract itself: see Re Scott (1879) 13 ICLR 139 at 140
(per Chatterton V C).
[613]
See Farrell Irish
Law of Specific Performance (Butterworths 1994) paragraph 8.53-8; Wylie op
cit fn 13 paragraphs 13.26-13.29.
[614]
The original
version of section 9 of the 1874 Act as it applied in England and Wales
referred to applications being heard “in chambers”, but this has not applied in
Ireland. See Farrell op cit paragraph 8.54; Wylie Conveyancing
Law (Butterworths Irish Annotated Statutes 1999) at 141.
[615]
Paragraph
8.43 below.
[616]
10 Chas 1
sess 2 c 1.
[617]
See Lyall Land
Law in Ireland (2nd ed Round Hall Sweet & Maxwell 2000) at 92-114
; Wylie Irish Land Law (3rd ed Butterworths 1997) paragraphs
3.015-3.024.
[618]
See the
precedents in Laffoy’s Irish Conveyancing Precedents (Butterworths)
especially Divisions E and J.
[619]
Law of
Property Act 1925 sections 51, 60 and 65. The English Statute of
Uses 1535 had in fact been repealed by the Law of Property Act 1922.
[620]
For
provisions designed to ensure this, see paragraphs 8.34, 8.36, and 8.43 below.
[621]
10 Chas 1
sess 2 c 3.
[622]
It is linked
with the Sales of Reversions Act 1867 (see paragraph 8.40 below) and the
Voluntary Conveyances Act 1893 (see paragraph 8.42 below).
[623]
Sections
1-5. See Wylie op cit fn 58 paragraph 3.087 and 9.078.
[624]
See
paragraph 8.42 below.
[625]
Note the
controversy over the use of the word “void” (which probably means “voidable”, ie,
not void until a court order to this effect is obtained) and the onus of proof
: see National Bank Ltd v Behan [1913] 1 IR 5 12 ; Re Moore
[1918] 1 IR 169.
[626]
Law of
Property Act 1925 section 173.
[627]
See sections
10, 11 and 14.
[628]
Sections
57-59. See Sanfey and Holohan Bankruptcy Law and Practice in Ireland
(Round Hall 1991) Chapter 8. Note that the provisions relating to
fraudulent preferences in bankruptcy legislation were applied to companies by
sections 284, 286, and 287 of the Companies Act 1963.
[629]
This has
been done in both England and Wales (the equivalent in section 172 of the Law
of Property Act 1925 was replaced by section 253 of the Insolvency Act
1985) and the North (sections 10, 11 and 14 of the 1634 Act were replaced
by Articles 367-369 of the Insolvency (NI) Order 1989).
[630]
10 Chas 1
sess 3 c 15.
[631]
See McElroy
v Flynn [1991] ILRM 294; Fraser v Buckle [1996] 1 IR 1; O’Keeffe
v Scales [1998] 1 IR 290.
[632]
Sections 2,
4 and 6.
[633]
Another view
is that the 1634 Act was largely declaratory of the common law: see Palles CB
in Robb v Dorian (1877) IR 11 CL 292. In Gillespie v Hogg
[1947] 13 Ir Jur Rep 15 Murnaghan J expressed the view that it does not apply
to registered land.
[634]
High Court
24 October 1975.
[635]
8 & 9
Vict c 106.
[636]
Section 8:
see Chapter 3 above.
[637]
Section 9.
[638]
But it has
been considered by the Commission’s Landlord and Tenant Project Group: see Consultation
Paper on the General Law of Landlord and Tenant (LRC CP 28 – 2003)
paragraphs 2.26, 12.04, 12.06 and 13.08.
[639]
See
paragraph 8.20 above.
[640]
See on this
subject Lyall op cit fn 58 at 108-112; Wylie op cit fn 58
paragraphs 3.023-3.030.
[641]
This was done
in England by section 51 of the Law of Property Act 1925.
[642]
See the
Commission’s Consultation Paper on the General Law of Landlord and Tenant
(LRC CP 28 – 2003) Chapter 2.
[643]
Succession
Act 1965 sections 52 and 78. Note also the provisions in sections 4-6
of the Statute of Frauds (Ireland) 1695 relating to declarations of
trusts and disposition of beneficial interests: see paragraph 8.03 fn 10 above.
[644]
Report on
Land Law and Conveyancing Law: (6) Further General Proposals Including
the Execution of Deeds (LRC 56 – 1998) Chapter 2. Note the draft
legislation set out on at 36-37 of that Report.
[645]
Deasy’s Act
1860 repealed the references to leases, assignments and surrenders: those
matters are dealt with respectively by sections 4, 7, 8 and 9 of that Act: see
Wylie Irish Landlord and Tenant Law (2nd ed Butterworths
1998) Chapters 5, 21 and 25.
[646]
But the
reference to “feoffments” should be dropped: see paragraph 8.30 above.
[647]
But again
the reference to a “feoffment” should be dropped.
[648]
Along the
lines proposed for the North in the Land Law Working Group’s Final Report
(HMSO 1990) Volume 2 at 598-599. See Wylie Conveyancing Law
(Butterworths Irish Annotated Statutes 1999) at 91-92.
[649]
Section 10
of the Conveyancing Act 1881.
[650]
Section 3 of
the Wills Act 1837, replaced by section 76 of the Succession Act 1965,
rendered them alienable by will.
[651]
Including
possibilities of reverter (see Wylie op cit fn 89 at 93), which were held
recently to be covered by section 3 of the Wills Act 1837: see Bath
and Wells Diocesan Board v Jenkinson [2002] 4 All ER 245.
[652]
22 & 23
Vic c 35.
[653]
Sections 1-3
and 27, which have been considered by the Commission’s Landlord and Tenant
Project Group: see eg Consultation Paper on the General Law of Landlord and
Tenant (LRC CP 28-2003) paragraph 3.20. As regards section 27 see
paragraph 7.15 above.
[654]
Section 23
relates to purchasers or mortgagees dealing with trusts and arguably was
superseded by section 20 of the Trustee Act 1893. This will be
dealt with by the Commission’s Project Group on the Law of Trusts.
[655]
Eg
section 50 of the Conveyancing Act 1881: see paragraph 8.43 re
section 50 of the Conveyancing Act 1881 below.
[656]
A precedent
exists in section 72 of the English Law of Property Act 1925. Note
also the provisions recommended for the North in the Land Law Working Group’s Final
Report (HMSO 1990) Volume 2 at 634-635.
[657]
As extended
by section 8 of the Law of Property Amendment Act 1860: see paragraph
8.38 below.
[658]
See Wylie Irish
Conveyancing Law (2nd ed Butterworths 1996) paragraphs 9.31 and
14.61.
[659]
23 & 24 Vic c
38.
[660]
Sections 1.5
related to registration of judgments, but this subject was already covered by
the Judgments (Ireland) Act 1844 and Judgments Registry (Ireland) Act
1850.
[661]
See paragraph 3.04
above.
[662]
See paragraph 8.36
above.
[663]
See Rules of the Superior Courts 1986 Order 77.
[664]
31 & 32 Vic c
4.
[665]
Tyler v Yates
(1871) LR 6 Ch 665 ; Earl of Aylesford v Morris (1873) LR 8 Ch 484: Rae
v Jones (1892) 29 LR Ir 500.
[666]
See Grealish v
Murphy [1946] IR 35 and discussion by Clark “The Unconsconability Doctrine
Viewed from an Irish Perspective” (1980) 31 NILQ 114.
[667]
See Keane Equity
and the Law of Trusts in the Republic of Ireland (Butterworths 1988)
Chapter 29; Delany Equity and the Law of Trusts in Ireland (2nd
ed Round Hall Sweet & Maxwell 1999) Chapters 15 and 16.
[668]
56 & 57 Vic c
21.
[669]
See Wylie Conveyancing
Law (Butterworths Annotated Statutes Series 1999) at 315.
[670]
Paragraph 8.22
above.
[671]
Parts III and
XIII.
[672]
They have been
considered by the Commission’s Landlord and Tenant Project Group: see Consultation
Paper on the General Law of Landlord and Tenant (LRC CP 28 – 2003) Chapters
3, 12 and 14.
[673]
Chapter 9 below.
[674]
See paragraph 7.13
above.
[675]
Parts VI, VII,
VIII, XI and XVII have been repealed. See Wylie Conveyancing Law
(Butterworths Irish Annotated Statutes 1999) at 151-224.
[676]
44 & 45 Vic c
4.
[677]
See Part III.
[678]
Report on Land
Law and Conveyancing Law: (1) General Proposals (LRC 30 – 1989) paragraphs
21-23.
[679]
Thus references to
feudal concepts like a “manor” should be dropped (see paragraph 2.08 above).
[680]
See paragraph 8.10
above.
[681]
And the related
one in section 13 of the 1881 Act.
[682]
See paragraph 2.08
above.
[683]
It should remain
open to a landlord to indicate expressly that breaches of covenant have
occurred.
[684]
This would accord
with the Law Society’s General Conditions of Sale (2001 ed) Condition
10(b)(iii).
[685]
The English courts
doubted such jurisdiction (see Re Scott and Alvarez’s Contract [1895] 2
Ch 603), but this was criticised by the Irish courts (see Wylie Irish
Conveyancing Law (2nd ed Butterworths 1996) paragraphs 13.35-13.36),
but doubts have remained: see White v Spendlove [1942] IR 224 at 252 (per
Geoghegan J). The point was met in England by section 49(2) of the Law
of Property Act 1925, which the courts eventually interpreted as giving an
unfettered discretion: see Universal Corporation v Five Ways Properties Ltd
[1979] 1 All ER 552; Faruqi v English Real Estates Ltd [1979] 1 WLR 963.
[686]
See Brady Succession
Law in Ireland (2nd ed Butterworths 1995) Chapter 10; Wylie op
cit fn 126 paragraphs 12.26 and 12.46.
[687]
See paragraph 7.13
above.
[688]
See paragraph
7.24-7.26 above.
[689]
See Wylie op
cit fn 126 paragraphs 21.05-21.33.
[690]
Ibid
paragraph 21.08.
[691]
See the Land Law
Working Group’s Final Report (HMSO 1990) Volume 2 at 638-643 and
991-996. This is to be preferred to the somewhat more obscure provisions
adopted in the English Law of Property (Miscellaneous Provisions) Act 1994:
see Barnsley Conveyancing Law and Practice (4th ed by
Thompson Butterworths 1996) at 683-686; Megarry and Wade The Law of Real
Property (6th ed by Harpum Butterworths 2000) paragraphs
5.047-5.071.
[692]
Such a repeal
would not revive old law: see Interpretation Act 1937 section 21 (1)(a)
and (b).
[693]
See Wylie op
cit fn 126 paragraphs 18.102-18.016.
[694]
See Wylie Conveyancing
Law (Butterworths Irish Annotated Statutes 1999) at 175.
[695]
See paragraph 4.09
above.
[696]
See paragraph 4.16
above.
[697]
See paragraphs 4.15-4.26
above.
[698]
Which would not
revive any old law: Interpretation Act 1937, section 21(1) (a)
and (b).
[699]
See paragraph 8.36
above. For a precedent see Articles 10-12 of the Property (NI) Order
1978: see Wylie Irish Land Law (3rd ed Sweet &
Maxwell 1997) paragraph 3.020.
[700]
Report on Land Law
and Conveyancing Law: (5) General Proposals (LRC 44-1992) at 6-7.
[701]
Law of Property
Act 1925 section 60.
[702]
See paragraph 5.08
above.
[703]
See Laffoy Irish
Conveyancing Precedents (Butterworths) Precedents F.1.6 and F.2.10.
[704]
See Wylie op
cit fn 126 paragraph 18.43-18.44.
[705]
Ibid paragraph
18.45.
[706]
Ibid
paragraph 18.46.
[707]
Another is section
6, which was discussed earlier: see paragraphs 7.24-7.26 above. See also sections
58-60 and 63 below.
[708]
Law of Property
Act 1925 section 78.
[709]
Federated Homes
Ltd v Mill Lodge Properties Ltd [1980] 1 All ER 371. See Megarry and
Wade The Law of Real Property (6th ed by Harpum, Sweet &
Maxwell, 2000) paragraphs 16.012-16.016.
[710]
See paragraph 7.29
above.
[711]
Leasehold
covenants are dealt with quite separately by, eg, sections 10 and 11 of
the 1881 Act and sections 12 and 13 of Deasy’s Act. This subject
has been covered by the Commission’s Landlord and Tenant Project Group: see Consultation
Paper on the General Law of Landlord and Tenant (LRC CP 28 - 2003) Chapter
3.
[712]
See paragraph 7.29
above.
[713]
See paragraph 9.24
below.
[714]
See paragraph 8.20
above.
[715]
See Wylie op
cit fn 126 paragraphs 18.82-18.83.
[716]
See the discussion
in relation to section 2 of the 1881 Act above.
[717]
It may have had
relevance to the rule in Patman v Harland (see Wylie op cit fn
126 paragraph 14.73), but it was recommended earlier that that rule should be
abolished: see paragraph 8.15 above.
[718]
The Commission’s
Landlord and Tenant Project Group made the same recommendation: see Consultation
Paper on the General Law of Landlord and Tenant (LRC CP 28 - 2003).
[719]
Paragraph 8.17
above.
[720]
45 & 46 Vic c
39.
[721]
See Wylie op
cit fn 126 paragraph 16.62.
[722]
55 & 56 Vic c
13. The provisions of this Act still in force (sections 2-5) all relate
to landlord and tenant law and have been considered by the Commission’s
Landlord and Tenant Project Group : see Consultation Paper on the General
Law of Landlord and Tenant (LRC CP 28 - 2003) paragraphs 14.21-14.25.
[723]
1 & 2 Geo 5 c
37.
[724]
Section 2 relates
to landlord and tenant law (section 10 of the 1881 Act): see LRC CP 28 - 2003
paragraph 3.09.
[725]
See paragraphs
7.13 above.
[726]
See paragraph 9.27
below.
[727]
See paragraph 4.09
above.
[728]
See Lyall Land Law in Ireland (2nd ed Round Hall Sweet &
Maxwell 2000) Chapter 23; Wylie Irish Land Law (3rd ed
Butterworths 1997) Chapters 12 and 13. See also Johnston Banking and
Security Law in Ireland (Butterworths 1998) Chapter 10.
[729]
See paragraph 1.31. As regards the special statutory form of mortgage for
securing a judgment creditor’s debts, the judgment mortgage, see Chapter 10
below.
[730]
In England, notwithstanding considerable changes made by the Law of Property
Act 1925, it has been recognised that there is still a need for major
reform: see the Law Commission’s Report Transfer of Land: Land
Mortgages (Law Com No 204 1991).
[731]
Meaning, as has been pointed out before in this Consultation Paper (see eg
paragraph 1.03 above), conveying or assigning the freehold or leasehold estate
in the land owned by the mortgagor.
[732]
See Lyall op cit fn 1 at 781-782; Wylie op cit fn 1 paragraphs
12.37-12.38.
[733]
It remains the case in Ireland that no form of writing is required – all that
is needed is the deposit of the title documents with the intention of creating
a mortgage of the estate in the land to which they relate : see Lyall op cit
fn 1 at 783; Wylie op cit fn 1 paragraphs 12.43-12.46. In England
it appears that, as a result of the changes to the requirements for a valid
contract for the sale or other disposition of land made by section 2 of the Law
of Property (Miscellaneous Provisions) Act 1989, writing is now necessary:
see United Bank of Kuwait Plc v Sahib [1997]
Ch 107; Megarry & Wade The Law of Real Property (6th
ed by Harpum Sweet & Maxwell 2000) paragraph 19-039.
[734]
The
title deeds relating to unregistered land or the land certificate relating to
registered land.
[735]
Other forms of equitable mortgage arise where, eg, the mortgagor holds
an equitable interest only in the property, so that this is all that can be
mortgaged, and where an initial agreement to create a legal mortgage is entered
into, which is not completed by execution of the formal legal mortgage.
[736]
This is what Maitland had in mind when referring to the traditional form of
mortgage deed as being one long “suppressio veri and suggestio falsi”:
see paragraph 1.31, fn 124 above. Cf Lord Macnaghten in Samuel
v Jarrah Timber and Wood Paving Corporation [1904] AC 323 at 326: “No one … by the light
of nature ever understood an English mortgage of real estate.”
[737]
See now Registration
of Title Act 1964 sections 62-67.
[738]
See
especially 1964 Act section 62 (6). See Fitzgerald Land Registry
Practice (2nd ed Round Hall 1995) Chapter 9.
[739]
Such a
charge has operated in England and Wales since introduced by the Law of
Property Act 1925: see Megarry & Wade op cit fn 6 Chapter 19.
[740]
As was done
in England and Wales, fn 12 above.
[741]
It should,
therefore, be possible to use the one deed of charge to mortgage both a parcel
of registered land and a parcel of unregistered land.
[742]
And, often,
their secrecy, ie, because no written document is involved there is
nothing required to be registered in the Registry of Deeds in the case of
unregistered land (see Chapter 11 below). The transaction remains a
private matter between the borrower and lender (eg the customer and the
bank).
[743]
Eg
for employees.
[744]
See Lyall op
cit fn 1 at 812-819; Wylie op cit fn 1 paragraphs 13.089-13.099.
[745]
One of the
other interesting recent developments of the equitable jurisdiction
has been the courts’ application of the doctrine of undue influence to the situation
where one of joint borrowers claims that the other borrower acted improperly
and that the lender is tainted by this (because it had constructive notice of
the vitiating circumstances). See Johnston op cit fn 1 Chapter 8.
[746]
Part
IX. See also the European Communities (Unfair Terms in Consumer
Contracts) Regulations (SI No 27 of 1995). See Johnston op cit fn
1 paragraphs 10.74 -10.84.
[747]
Section 123.
[748]
Section 124.
[749]
Sections
126-132.
[750]
Section 134.
[751]
Section 121.
[752]
See
paragraphs 9.03-9.05 above.
[753]
See
paragraph 9.09 above.
[754]
See Lyall op
cit fn 1at 796-798; Wylie op cit fn 1 paragraph 12.05.
[755]
See
paragraph 9.03 above.
[756]
Per Harman J
in Four-Maids Ltd v Dudley Marshall Properties Ltd [1957] Ch 317 at 320.
[757]
Eg
taking possession may be necessary where the mortgagor abandons the land, in
order to stop vandals or trespassers taking it over.
[758]
Eg
where the mortgagor has disappeared and cannot reasonably be found.
[759]
Eg by
opposing a court order for possession sought by the mortgagee: see paragraph
9.16 below.
[760]
By adapting,
eg, the proposals of the Commission’s Landlord and Tenant Project Group
in relation to landlords: see Consultation Paper on the General Law of
Landlord and Tenant (LRC CP 28 – 2003) at 169-175. This would involve
lodging the notice in court and obtaining a summary order for possession.
The alternative would be to extend section 62(7) of the Registration of
Title Act 1964: see paragraph 9.16 below.
[761]
Antrim
County Land, Building and Investment Co Ltd v Stewart [1904] 2 IR 357 at
369 (per FitzGibbon LJ); Bruce v Brophy [1906] 611 at 616 (per
Walker LC). Foreclosure has also become rare in England in recent times:
see Palk v Mortgage Services Funding Plc [1993] 2 All ER 481 at 485 (per
Nicholls VC).
[762]
Paragraph
9.14 above.
[763]
Frequently a
court order for possession is obtained as a preliminary to exercising the power
of sale, the point being that it is much easier to sell the land with vacant
possession.
[764]
See
paragraph 9.14 fn 33 above.
[765]
See Shatter Family
Law (4th ed Butterworths 1997) paragraph 15.102; Duncan and
Scully Marriage Breakdown in Ireland: Law and Practice (Butterworths
1990) paragraph 11.046.
[766]
See on
English law Palk v Mortgage Services Funding Plc [1993] 2 All ER 481.
[767]
Building
Societies Act 1989 section 26(1).
[768]
This would
probably be declaratory of the current position: see the views of the Supreme
Court in Holohan v Friends Provident and Century Life Office [1966] IR
1. Cf Silven Properties v Royal Bank of Scotland Plc [2003] 3 EGLR 49.
And in relation to the duty of a receiver to obtain the best price, see Bula
Ltd. v Crowley [2003] 1 IR 396.
[769]
See
paragraph 9.24 below in relation to section 24 of the Conveyancing Act 1881.
[770]
Again this
is probably declaratory of the current position: see McCarter & Co Ltd v
Roughan [1986] ILRM 447; Bula Ltd. v Crowley [2003] 1 IR 396.
[771]
Deposit of
such a charge in order to create an equitable mortgage is extremely rare: see
Wylie op cit fn 1 paragraph 12.29.
[772]
The Law
Society and the Irish Mortgage Council (representing leading lending
institutions).
[773]
See Lyall op
cit fn 1 at 778-779; Wylie op cit fn 1 paragraphs 12.22 – 12.23.
[774]
A
particularly odd feature of a “Welsh” mortgage is that the borrower has no
personal obligation to repay the debt and so the lender does not have the usual
remedies to enforce the security.
[775]
Literally
“the plank in the shipwreck”: see Lyall op cit paragraphs 830 – 832;
Wylie op cit paragraphs 13.159 – 13.160.
[776]
See Lyall op
cit fn 1 at 832-833; Wylie op cit fn 1 paragraphs 13.161 – 13.162.
[777]
See now Building
Societies Act 1989 section 27.
[778]
Housing
Act 1988 section 18.
[779]
9 Will 3 c
11.
[780]
See Wylie Irish
Conveyancing Law (2nd ed Butterworths 1996) paragraphs 15.42 –
15.45.
[781]
See paragraphs
9.04 – 9.05, 9.10 and 9.11 above.
[782]
8 & 9
Vic c112.
[783]
See
paragraph 9.03 above. See Re Moore & Hulm’s Contract [1912] 2
Ch 105.
[784]
See
paragraphs 1.13 and 2.17 – 2.19 above.
[785]
See
paragraph 9.03 above.
[786]
See
paragraph 9.18 above.
[787]
See ibid.
[788]
58 & 59
Vic c25.
[789]
44 & 45
Vic c41.
[790]
See Wylie Irish
Land Law (3rd ed Butterworths 1997) paragraph 13.106.
[791]
It was
doubted in England whether it applied to building society mortgages: see Re
Rumney and Smith [1877] 2 Ch 351; Sun Building Society v Western
Suburban and Harrow Road Building Society [1920] 2 Ch 144, [1921] 2 Ch 438.
[792]
Such an
obligation was disputed by Barton J in Gillligan v National Bank Ltd
[1901] 2 IR 513.
[793]
See the
discussion in Re Thomson’s Estate [1912] 1 IR 194 (per Ross J)
and 460 (per Barry LC). See also Lyall op cit fn 1 at 806 –
808; Wylie op cit fn 1 paragraphs 13.069 – 13.073.
[794]
Subsection
(2).
[795]
See Lyall op
cit fn 1 at 822-823; Wylie op cit fn 1 paragraphs 13.114 – 13.119.
[796]
Consultation
Paper on the General Law of Landlord and Tenant (LRC CP 28 – 2003)
paragraph 2.17.
[797]
Note the
courts’ reluctance to apply the doctrine of estoppel: see ICC Bank plc v
Verling [1995] 1 ILRM 123. See Wylie op cit fn 1 paragraph
13.116.
[798]
Ie
which operate in the absense of express provisions in the mortgage deed.
[799]
See Lyall op
cit fn 1 at 795-803; Wylie op cit fn 1 paragraphs 13.022 – 13.055.
[800]
See
paragraphs 9.04 and 9.13-9.16 above.
[801]
Paragraphs
9.14-9.16 above.
[802]
See
paragraph 9.05 above.
[803]
See
paragraph 9.16 above.
[804]
This would
reflect the view taken by Irish judges: see Re Doherty [1925] 2 IR 246; Myles
v Mr Pussy’s Nite Club Ltd High Court (McWilliam J), 11 December 1979.
[805]
See
paragraph 9.16 above.
[806]
This was the
view of Keane J in Donohoe v Agricultural Credit Corporation [1986] IR
165 at 170.
[807]
See Wylie op
cit fn 1 paragraph 9.050.
[808]
45&46
Vic C 39.
[809]
See
paragraph 9.24 above.
[810]
1&2 Geo
5 c 37.
[811]
See
paragraph 9.24 above.
[812]
Ibid.
[813]
Ibid.
[814]
See Chapter
12 below.
[815]
See
paragraph 9.14 above.
[816]
See
paragraph 9.16 above.
[817]
See Lyall op
cit fn 1 at 794 – 795; Wylie op cit fn 1 paragraphs 13.046 – 13.047.
[818]
See Re
Soden and Alexander’s Contract [1960] 2 Ch 258.
[819]
See Wylie Irish
Conveyancing Law (2nd ed Butterworths 1996) paragraph 15.19.
[820]
See Lyall Land Law in Ireland (2nd ed Round Hall 2000) at
776-778 and 873-877; Wylie Irish Land Law (3rd ed
Butterworths 1997) paragraphs 13.163-13.182.
[821]
Judgment
Mortgages (LRC CP 30-2004).
[822]
[1994] 1 IR 407.
[823]
See
Lyall op cit fn 1 at 873; Wylie op cit fn 1 paragraph 13.181.
[824]
In which case the court has a wide jurisdiction as to orders that can be made
in respect of the land under the Family Home Protection Act 1976.
[825]
It seems clear that it does not apply to freehold land: see Wylie Irish
Conveyancing Law (2nd ed Butterworths 1996) paragraph 15.46.
[826]
Report
on Debt Collection: (1) The Law Relating to Sheriffs (LRC 27-1988)
[827]
See Wylie op cit fn 1paragraph 15.46.
[828] See paragraphs
1.26 – 1.28 above.
[829] See paragraph
8.32 above.
[830] See paragraph
11.01 above.
[831] 6 Anne c 2.
[832] 8 Anne c 10.
[833] 8 Geo 1 c 15.
[834] 25 Geo 3 c 47.
[835] 3 Geo 4 c116.
[836] 2 and 3 Will 4
c87.
[837] 11 & 12 Vic
c120.
[838] 27 & 28 Vic
c76.
[839] 38 & 39 Vic
c5.
[840]
See Brady and Kerr The Limitation of Actions (2nd
Butterworths 1994). See also Lyall Land Law in Ireland
(2nd ed Round Hall Sweet & Maxwell 2000) Chapter 25; Wylie Irish
Land Law (3rd ed Butterworths 1997) Chapter 23.
[841]
See Wylie Irish Conveyancing Law (2nd ed Butterworths 1996)
paragraphs 14.12, 14.54, 14.61 and 14.81-14.82.
[842]
Report
on Title by Adverse Possession of Land (LRC 67-2002).
[843]
Note the draft Bill set out in Appendix A to the 2002 Report.
[844]
Report
on Land Law and Conveyancing Law: (1) General Proposals (LRC 30-1989)
paragraphs 52-53.
[845]
Ibid
paragraphs 54-55.
[846]
Report
on Land Law and Conveyancing Law: (7) Positive Covenants over Freehold Land and
other Proposals (LRC 70-2003) Chapter 6.
[847]
But note paragraph 13.12 below.
[848]
See McAllister Registration of Title in Ireland (Incorporated Council of
Law Reporting for Ireland 1973); Fitzgerald Land Registry Practice (2nd
ed Round Hall 1995).
[849]
See,
eg, Report on Land Law and Conveyancing: (1) General Proposals (LRC
30-1989) paragraphs 43-44; Report on Land Law and Conveyancing Law: (5)
Further General Proposals (LRC 44-1992) at 11-12; Report on Land Law and
Conveyancing Law: (7) Positive Covenants over Freehold Land and other Proposals
(LRC 70-2003) Chapter 4.
[850]
In the context of pre-1922 statutes, consideration should be given as to
whether the Record of Title (Ireland) Act 1865 could be repealed.
[851]
See Report on Land Law and Conveyancing Law: (1) General Proposals (LRC
30-1989) paragraphs 35-36.
[852]
See Report on Land Law and Conveyancing Law: (5) Further General Proposals
(LRC 44-1992) at 9-10. Under section 225 of the Planning and
Development Act 2000, planning permission is now required for a development
of the foreshore where this adjoins the planning authority’s functional
area. The part of the forshore ehich involves the development is then
deemed to be within the authority’s functional area.
[853]
See 2000 Act, sections 258 and 259.
[854]
See Gore-Grimes Key Issues in Planning and Environmental Law
(Butterworths 2002) at 326-329.
[855]
See paragraph 12.03 above.
[856]
See
Report on Land Law and Conveyancing Law: (6) Further General Proposals
Including the Execution of Deeds (LRC 56-1998) paragraphs 1.8-1.20.
[857]
See Report
on Land Law and Conveyancing Law: (7) Positive Covenants over Freehold Land and
other Proposals (LRC 70-2003) Chapter 2.
[858]
Report on
Land Law and Conveyancing Law: (6) Further General Proposals Including the
Execution of Deeds (LRC 56-1998) paragraphs 1.1-1.7.
[859]
Report on
Land Law and Conveyancing Law: (1) General Proposals (LRC 30-1989)
paragraphs 10-12.
[860]
See Chapter
4 above.
[861]
See
paragraph 4.21 above.
[862]
Section 59
of the 1945 Act provides that “no drainage scheme shall be prepared or carried
into execution under any of the Acts specified in Part I of the First Schedule”
to that Act. The Acts specified include the Drainage and Navigation
(Ireland) Acts 1842 to 1857 and Drainage and Improvement of Lands
(Ireland) Acts 1863 to 1892.
[863]
5 & 6
Vic c 89.
[864]
8 & 9
Vic c 56.
[865]
8 & 9
Vic c 69.
[866]
9 & 10
Vic c 4.
[867]
10 & 11
Vic c 32.
[868]
10 & 11
Vic c 79.
[869]
12 13
Vic c 59.
[870]
13 & 14
Vic c 31.
[871]
13 & 14
Vic c 113.
[872]
15 & 16
Vic c 34.
[873]
16 & 17
Vic c 130.
[874]
18 & 19
Vic c 110.
[875]
19 & 20
Vic c 62.
[876]
23 & 24
Vic c 153.
[877]
25 & 26
Vic c 29.
[878]
26 & 27
Vic c 26.
[879]
26 & 27
Vic c 88.
[880]
27 & 28
Vic c 72.
[881]
27 & 28
Vic c 114.
[882]
28 & 29
Vic c 52.
[883]
29 & 30
Vic c 26.
[884]
29 & 30
Vic c 40.
[885]
32 & 33
Vic c 72.
[886]
35 & 36
Vic c 31.
[887]
37 & 38
Vic c 32.
[888]
41 & 42
Vic c 59.
[889]
55 & 56
Vic c 65.
[890]
62 & 63
Vic c 46.
[891]
See
paragraph 8.43 above.