Private Ownership - Introduction to Land Law on private ownership

INTRODUCTION TO LAND LAW, THEORETICAL PERSPECTIVES ON PRIVATE OWNERSHIP AND THE PUBLIC/PRIVATE INTERFACE IN LAND LAW

The Irish Constitution, Articles 40.3.2, 43, 40.5

*Irish Life and Permanent v Duff [2013] IEHC 43

• Case deals with the right of the mortgagee to repossess the property when the loan has not been repaid.

• The lender must go to court to seek an order to repossess

• In this case, repossession was rejected as the lender did not comply with clause 6 of the Central Bank’s code of conduct.

• This stipulates that the lender must not seek repossession of a property

unless “every reasonable effort” has been made to make an alternative repayment schedule – which was not done in this case.

County Council of Meath v Murray [2017] IESC 25

• Meath County Council refused Mr. Murray’s application for planning permission on land that was zoned for agricultural purposes.

• Despite this, Mr. Murray built a private dwelling that was double the size of the proposition that had been rejected by the County Council.

• Article 40.5 of the Constitution provides that “the dwelling of every citizen is

inviolable and shall not be forcibly entered with save in accordance with the law.”

• However, the Supreme Court held that Article 40.5 does not preclude the

court from granting an order for the demolition of a private dwelling.

European Human Rights Dimensions:

ECHR Act 2003

Two relevant articles:

• Protocol Number One, Article One: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.”

This does not impair the right of the State to enforce laws to control property.

• Article 8 deals with respect for the home.

Donegan v Dublin City Council [2008] IEHC 288, [2012] IESC 18

• Section 62 (3) provided that that the District Court could warrant repossession of a local authority dwelling from a tenant.

• The Supreme Court held that section 62 (3) of the Housing Act 1966 was incompatible with Article 8 of the ECHR.

KEY HISTORICAL IMPACTS ON LAND LAW

Detailed knowledge of the feudal system is not necessary for the exam.

• Tenure: Refers to the terms upon which the landowner holds the land. Land can be held by one person who possesses it from another person who owns it. In its original form, feudal tenure is gone, but the concept of tenure has evolved and helps us understand landlord and tenant law.

• Freedom of Alienation: In the feudal system, landowners were not free to leave their land to someone else in a will, nor were they able to sell it to who they wanted. This was altered by the Quia Emptores Act 1290. (Replaced subinfeudation with substitution)

• Estates: Feudal system gave rise to the concept of land being measured in units of time – from life estates to fee simples.

EQUITY IN LAND LAW:

Detailed knowledge of equity is not expected.

• Trust: A person who is the legal owner holds the property for the benefit of another person. The trustee is not allowed to use the land for their own benefit

– they must preserve it for the person who is the non-legal owner and has equitable rights.

• Doctrine of Notice: A person dealing with the legal owner of land may be

bound by the equitable rights if they know or ought to have known that equitable rights existed.

Nature of Equitable Interests in Land:

Rights in rem: Rights which are enforceable against the public at large - e.g. property rights.

Rights in personam: A personal right that is attached to a specific person – e.g. contract rights, tortious damages awarded against a defendant.

• A bona fide purchaser of a legal estate takes priority over any pre-existing

equitable interest that is not registerable as a land charge – if they did not have notice of their existence.

• The three forms of notice (actual, constructive and imputed) were recognised in Ireland in s 86 of the Land and Conveyancing Law Reform Act 2009.

Actual Notice: the purchaser knows of the right in question.

O’Connor v McCarthy [1982] 1 IR 161

• A vague and unspecified rumour does not amount to notice.

Constructive Notice: Recognises the rights that one would find with reasonable diligence do exist – the purchaser is required to find these equitable rights. (Land law generally treats the purchaser of land favourably)

Somers v W [1979] 1 IR 94

*Northern Bank Ltd. v. Henry [1981] I.R. 1

• This case contained a husband and wife – the house they lived in was bought by the wife’s father.

• They decided to sell the house to buy a family home (which was purchased in the husband’s name)

• The couple subsequently separated – the wife claimed that she had equitable rights in the property because it was purchased with her money.

• The court held that the wife did have equitable rights in the house

• A purchaser may have constructive notice of the rights of a tenant in occupation of land that was sold – or of a spouse’s right to an equitable interest in the family home by a contribution that was made to the purchase price.

In re Jeffel [2012] IEHC 279

Kingsnorth v Tizzard [1986] 1 WLR 783

Hunt v. Luck [1902] 1 Ch. 428

Imputed Notice: When the actual or constructive notice is conveyed to the purchaser by someone they have employed – generally a solicitor or an estate agent.

Equity looks on that as done which ought to have been done.

*Tempany v Hynes [1976] IR 101

• SC held that before the entirety of the purchase price was paid, the vendor was a trustee proportionate to the total that had been paid.

• This controversial decision was modified by s.52 of the LCLRA 2009.

• The current position is that the entire beneficial interests (equitable ownership) passes to the purchaser when the contract is signed.

• The vendor is a trustee when the contract is signed.

• The equitable rights are transferred before the legal rights.

Walsh v Lonsdale (1882) 21 Ch D 9

• Old English case

• Created the doctrine of anticipation – a specifically performable agreement to create or transfer a property right will be good in equity, even if not effective

legally.

FREEHOLD ESTATES

Abolition of feudal tenure: LCLRA 2009, section 9(2)

• The 2009 Act abolished feudal tenure, life estates and fee tail estates – which left the fee simple. (absolute or modified)

• Modified fee simples can be determinable or conditional.

Determinable Fee:

• LCLRA 2009, section 11(2)(a)

• Arises when a fee simple is granted subject to a condition of affairs

• Will use keywords: “while”, “during”, “until”, “as long as”, “till”

• The fee simple can cease to exist if the condition of affairs is not carried out

• When the fee simple is created, the grantor still possesses an alienable future interest in the land – this is known as the possibility of ‘reverter.’

• Land law recognises that the grantor has proprietary interest in the land

because the land will revert to them automatically if the condition of affairs is not met.

Conditional Fee:

• LCLRA 2009, section 11(2)(b)

• The condition can be precedent or subsequent

• Precedent – the condition must be satisfied before the fee simple is vested in the recipient

• Subsequent – the recipient receives the fee simple while they fulfil the

condition, however, the grantor has a right to re-entry (although not automatically) if the condition is broken.

• Will use keywords: “provided that”, “on condition that”

• If the court deems the condition to be invalid – the recipient obtains the fee

simple unconditionally, e.g. restrictions on marriage are contrary to public policy

• Duddy v. Gresham: husband left property to his wife on the condition that

she did not remarry – invalid condition because it restricted her personal rights.

Note: Land law favours conditions subsequent – therefore, if it is unclear whether the condition is precedent or subsequent – the court will usually favour finding it as a condition subsequent.

LCLRA 2009, section 9(4)

• The condition must not significantly impair the alienability of the land, e.g. who the recipient can sell the land to.

*Re Dunne [1988] I.R. 155

• Deals with the issue of vague conditions

• The deceased left property with the condition that it should not be sold to any members of a particular family.

• Court held it was inconsistent with the freedom of alienation and against public policy

In re McDonnell [1965] IR 354

Fitzsimons v. Fitzsimons [1993] I.L.R.M. 478

McGowan v Kelly [2007] IEHC 228

• Farm was gifted to nephew under the condition that he “returned and lived there.”

• Laffoy J. held that this condition subsequent was void for uncertainty.

• Therefore, the nephew received the farm as an outright gift.

Re Burke’s Estate [1951] IR 216

*Corrigan v Corrigan [2007] IEHC 367, [2016] IESC 56

• Attempted to create a fee simple determinable – the land would be owned by

his son until it was zoned for residential/industrial purposes – until is a word of limitation (defines the duration of the fee simple)

• However, it was void for uncertainty. Therefore, the entire gift failed.

• Laffoy J. held that the determinable event that must occur has to be evident from the beginning.

Words of limitation indicate the duration of an estate – they are presently used in fee simples determinable.

S 123 of the Registration of Title Act 1964

S 67 and S 68 of the Land and Conveyancing Law Reform Act 2009

Hybrid Estates:

Feudal

• Fee simple with the payment of rent attached

• They were created by subinfeudation with feudal service of rent, there was no

reversion to the landlord Conversion grants

• As perpetually renewable leases had the potential to be indefinite – doubts

had been casted...