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You are here: BAILII >> Databases >> Irish Law Reform Commission Papers and Reports >> Reform and Modernisation of Land Law and Conveyancing Law, Consultation Paper on (LRC CP34-2004) [2004] IELRC CP34 (October 2004) URL: http://www.bailii.org/ie/other/IELRC/2004/7.html Cite as: [2004] IELRC CP34, [2004] IELRC 7 |
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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
[email protected]
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
(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 à 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 à
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 à
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 à 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 à 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 à
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 à 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 à 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 à
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 |
|
Report on the Rule against Perpetuities and Cognate Rules (LRC 62-2000) (December 2000)
|
€10.16 |
|
Report on the Variation of Trusts (LRC 63-2000) (December 2000)
|
€7.62 |
|
Report on The Statutes of Limitations: Claims in Contract and Tort in Respect of Latent Damage (Other than Personal Injury) (LRC 64-2001) (March 2001)
|
€7.62 |
|
Consultation Paper on Homicide: The Mental Element in Murder (LRC CP17-2001) (March 2001)
|
€6.35
|
|
Seminar on Consultation Paper: Homicide: The Mental Element in Murder (LRC SP 1-2001)
|
|
|
Twenty Second (Annual) Report (2000) (PN 10629) |
€3.81
|
|
Consultation Paper on Penalties for Minor Offences (LRC CP18-2002) (March 2002)
|
€5.00 |
|
Consultation Paper on Prosecution Appeals in Cases brought on Indictment (LRC CP19-2002) (May 2002)
|
€6.00
|
|
Report on the Indexation of Fines: A Review of Developments (LRC 65-2002) (July 2002)
|
€5.00 |
|
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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.
