Land Law Script PDF

Inhaltsverzeichnis [Land Law Script 1](#land-law-script) [A. Schemes 1](#schemes) [1. Overview of the Structure 1](#overview-of-the-structure) [a) Schemes 1](#schemes-1) [b) Estates in Land 1](#estates-in-land) [aa) Freehold Estate 1](#freehold-estate) [bb) Leasehold Estate 1](#leasehold-esta...

Inhaltsverzeichnis [Land Law Script 1](#land-law-script) [A. Schemes 1](#schemes) [1. Overview of the Structure 1](#overview-of-the-structure) [a) Schemes 1](#schemes-1) [b) Estates in Land 1](#estates-in-land) [aa) Freehold Estate 1](#freehold-estate) [bb) Leasehold Estate 1](#leasehold-estate) [cc) Hybrid Estates 1](#hybrid-estates) [c) Acquisition 1](#_Toc184127159) [2. How to deal with problem questions 1](#how-to-deal-with-problem-questions) [**a) Set out the problems** 1](#set-out-the-problems) [**b) Set out the law** 1](#set-out-the-law) [**c) Apply the law to the facts** 1](#apply-the-law-to-the-facts) [**d) Draw a conclusion** 1](#draw-a-conclusion) [B. Estates in Land 1](#estates-in-land-1) [1. Freehold Estate 1](#freehold-estate-1) [a) The Freehold Estate 1](#the-freehold-estate) [b) The Incidents of Ownership 2](#the-incidents-of-ownership) [c) The Restrictions 2](#the-restrictions) [2. Hybrid Estates 4](#hybrid-estates-1) [a) The Prospective Effect of the LCLRA 2009 4](#the-prospective-effect-of-the-lclra-2009) [b) How Hybrid Estates are treated Pre- and Post LCLRA 2009 4](#how-hybrid-estates-are-treated-pre--and-post-lclra-2009) [c) Leases for Lives Perpetually Renewable 4](#leases-for-lives-perpetually-renewable) [d) Leases for Lives Combined with a Term of Years 4](#leases-for-lives-combined-with-a-term-of-years) [e) Grants Subject to a Rentcharge 4](#grants-subject-to-a-rentcharge) [f) Conversion Fee Farm Grants 4](#conversion-fee-farm-grants) [g) Feudal Fee Farm Grants 5](#feudal-fee-farm-grants) [3. Leasehold Estate 5](#leasehold-estate-1) [a) General Things 5](#general-things) [b) Forms of Tenancies 6](#_Toc184127180) [c) Formal requirements 6](#formal-requirements) [d) Distinguishing Leasehold Estate and License to Reside 6](#distinguishing-leasehold-estate-and-license-to-reside) [e) Assignment and Sublet 7](#assignment-and-sublet) [f) Covenants 8](#covenants) [aa) Tenant Covenants 8](#tenant-covenants) [bb) Landlord covenants 9](#landlord-covenants) [g) Termination 9](#termination) [aa) Notice to Quit 9](#notice-to-quit) [bb) Forfeiture 10](#forfeiture) [C. Rights in Land 11](#rights-in-land-1) [1. Mortgages 11](#mortgages-1) [2. Easements 11](#easements-1) [3. Implication of Easements 11](#_Toc184127193) [D. Acquisition of Estates and Interests 11](#acquisition-of-estates-and-interests) [1. Formal 11](#rationales-for-the-formalities) [2. Informal 11](#informal) [3. Adverse Possession 11](#_Toc184127197) [E. Feudal Roots of the Irish Land Law System 11](#feudal-roots-of-the-irish-land-law-system-1) [F. Effect of Equity 11](#effect-of-equity) [1. Doctrine of Notice 11](#doctrine-of-notice) [2. Doctrine of Overreaching 11](#doctrine-of-overreaching) [3. Doctrine of Failure of Formalities 11](#doctrine-of-failure-of-formalities) [G. Legislature for the Exam 11](#legislature-for-the-exam) Land Law Script =============== Schemes ------- #### Overview of the Structure ##### Schemes ##### Estates in Land ###### Freehold Estate ###### Leasehold Estate ###### Hybrid Estates ##### Rights in Land ###### Mortgages ###### Easements ###### Implication of Easements ##### Acquisition of Estates and Interests in Land ##### Feudal Roots of the Irish Land Law System ##### Effects of Equity #### How to deal with problem questions ##### Set out the problems ##### Set out the law ##### Apply the law to the facts ##### Draw a conclusion Estates in Land --------------- #### Freehold Estate - The Freehold Estate - The Incidents of Ownership - The Restrictions ##### The Freehold Estate A **freehold estate** refers to a form of land ownership where the owner holds the land in perpetuity, meaning there is no fixed duration for their ownership. The owner has the right to use, occupy, and dispose of the property as they wish, subject to laws and any covenants or restrictions on the title. It is also referred to as the fee simple, and this estate is at the top of the food chain in powers in land, close to absolute ownership. The freehold estate is in contrast to the enforceability of contract law only "in persona" because they are only personal rights, whereas property rights like the freehold estate are enforceable in rem, so they are enforceable against anyone, they affect the world at large. ##### The Incidents of Ownership There is, however, no true ownership as a whole, there is only estates in land, which means there is a fragmentation of the rights in land, (Incidents of Ownership), the "ownership" like in civil law countries is made by them all coming together in one person. Therefore, these incidents collectively define the scope and extent of an owner\'s control over the property. Pieces can therefore be scattered along more than one person (giving away parts of the bundle of sticks/rights), so there is a more efficient use of the land. The incidents are the following: 1. **Possession**\ The right to occupy and control the property. 2. **Use and Enjoyment**\ The right to utilize the property for lawful purposes. 3. **Exclusion**\ The right to exclude others from entering or using the property without permission. 4. **Alienation/Disposition**\ The right to sell, transfer, lease, or otherwise convey the property to another party. 5. **Alteration**\ The right to alter, develop, or modify the property within legal and planning regulations. 6. **Income Generation**\ The right to derive income from the property, such as through leasing or agricultural use. 7. **Perpetuity (in Freehold)**\ The right to hold the property indefinitely, with no fixed expiration date. **Freedom of alienation** is a foundational principle of Irish land law and is key to the efficient transfer of property. It ensures that land can move freely between owners, allowing it to reach its highest and best economic use. This principle supports market dynamism by enabling landowners to sell, lease, or transfer their property without unnecessary barriers, which is vital for economic development and investment. Moreover, freedom of alienation allows for greater flexibility and innovation in land use. It encourages development and adaptability, as landowners can respond to changing economic conditions, such as selling to developers for urban growth or transferring land for agricultural or industrial expansion. This adaptability strengthens the property market and contributes to overall economic growth in Ireland ##### The Restrictions The freehold estate can be delivered under conditions which creates variations of the right, especially in the form of determinable fees, or conditional fees **Determinable fees** and **conditional fees** are forms of freehold estates with restrictions attached, dictating how long ownership lasts or under what conditions it may end. 1. **Determinable Fee** - Ownership automatically ends if a specific event or condition occurs. - The estate is typically worded with terms like \"until,\" \"so long as,\" or \"while.\" - If the condition is breached, the property reverts to the grantor or their successors without further action. 2. **Conditional Fee** - Ownership does not automatically end but can be terminated if a condition is breached. - The estate often includes terms like \"on condition that\" or \"provided that.\" - If the condition is violated, the grantor (or their successors) must take legal steps to enforce the reversion. Courts do not like conditional or determinable fees, they are frequently challenged in the courts and judges often invalidate them, because it makes it harder to sell land efficiently If it is challenged successfully, the condition is void and therefore the freehold estate is transferred without any restrictions Successfully challenged were the following clauses:. - Limitation of Alienability - Lack of Certainty - Restriction that the land cannot be sold to a member to a certain family - Limitation that the holder of the freehold estate must have a certain religion and undergo a certain education #### Leasehold Estate - General Things - Formal requirements - Distinguishing Lease and License to Reside - Assignment and Sublet - Covenants - Termination ##### General Things A **leasehold estate** in Ireland is a property tenure where a tenant holds the right to use and occupy land or buildings for a fixed term under a lease agreement, in exchange for rent. The tenant does not own the property but has rights defined by the lease. The holder of freehold estate can therefore create a less powerful estate, these estates can coexist and will be held by different people. The creation of the estate is defined in s.11 (3) LCLRA 2009: Arises when a tenancy (one party holds land from another in consideration of any rent with a contract) is created by contract, regardless of what period, and without any need to take immediate possession. There is lots of statutory intervention, especially by the Residential Tenancy Act 2004, this area of law is especially right now a very important dimension of house policy, a key public concern, because while there is a housing crisis, there is an imbalance in bargaining power between the holders of freehold and leasehold estate, this is further accelerated, because the holder of leasehold estate has an existential problem, for all of that there is a tendency to strengthen the rights of the tenant in the leasehold estate. Therefore, secure occupation of housing is strongly protected in Irish land law. Tenant protections, such as those under the *Residential Tenancies Acts*, aim to ensure stability and fairness for tenants, reflecting housing as a basic need. These laws provide security of tenure, clear rules on rent increases, and dispute resolution mechanisms, contributing to a balanced rental market and protecting vulnerable tenants. However, from a lessor's perspective, these protections can sometimes appear overly restrictive. For example, strict notice periods, limits on evictions, and rent control measures may reduce flexibility for landlords, potentially discouraging investment in the rental market. While these measures protect tenants, they can create challenges for lessors in managing their properties or responding to market conditions. ##### Formal requirements - For a long-term lease, longer than one year must be in writing - Shorter ones can be created orally, more informal way (s.4 Deasy's Act) - Any assignment must be in writing (s.9 Deasy's Act) ##### Distinguishing Leasehold Estate and License to Reside Lease creates a leasehold estate, tenant becomes the holder of that, legislation is layered upon the contractual relation and sets minimum obligations, standards, enforceable against the world at whole, exclusive possession which limits the power of the fee simple License, person right, enforceable only against the licensor, permission of the landlord which doesn't limit the fee simple, no legislation is applicable and there is only a right to remain on the premises depends on the will of the granting person, which makes it easier to be terminated Doesn't matter, which label is put on the contract, the court decides upon the facts holistically, the substance of the agreement with the circumstances of the case is checked whether it matches the properties of a lease or a license, this is an intervention into the parties contractual (autonomy) freedom because it was developed in the circumstances of housing and the prevailing dysfunctionality of the power of the parties involved, relevant for the distinction is the **level of possession and control over the property** **For the Lease:** **In Irish Shell Ltd v. John Costello Ltd** \[1981\], Irish Shell owned a petrol station leased to Costello under agreements labeled as \"licenses.\" Costello had exclusive possession, operated the business, and paid monthly fees. After the agreement expired, Costello continued occupation. Irish Shell sought possession, claiming it was a license, while Costello argued it was a lease. Landlord only visited once a month, periodic payments for the equipment use were be made, which was rent under another name, this created a lease ##### Assignment and Sublet Subletting is possible, creating a sublease, now there are two leasehold estates, owned by the sublessor and the sublessee, two relationships created between the sublessor and the landlord and the sublessee and the sublessor, the sublease is depending on the headlease which makes the sublessee vulnerable, a termination of the headlease influences the sublease as well Assignment of interest in the leasehold estate to 3^rd^ party is possible, assignor steps out, assignee comes in, relationship is between assignee and landlord, needs the acceptance of the landlord, rules are to be found in s.16 Residential Tenancies Act 2004, when dealing with an assignment, for the landlord there is a withholding of consent only if reasonable Reasonableness is given when the landlord isn't adversely affected, which is the case, when 1. The tenant is liquid 2. The premises cannot be used in an effective way for the current tenant 3. When there's no interference with the good management of the property by the landlord ##### Covenants Covenants in Irish leasehold law refer to the legally binding promises or obligations agreed upon by the landlord (lessor) and tenant (lessee) in a lease. These can be **express** (explicitly stated in the lease) or **implied** (arising from law). The implied ones do not need to be written down, they apply any way, and cannot be contracted out (s.18 RTA 2004), but one can go beyond in protection. This is enforceable trough an administrative body, the residential tenancies board, one doesn't have to go to court for that. Starting position for dealing with such terms is freedom of contract, but this is here limited by statutory intervention: - Landlord and Tenant Act 1980 - Residential Tenancies Act 2004 ###### Tenant Covenants Usual covenants are regarding: - Payment of Rent, timely payment of rent as agreed in the lease - Repairs and Maintenance, keeping the property in good condition, subject to the lease terms. - Payment of Charges and Rates - Assignment and Subletting, not assigning or subletting without the landlord\'s consent. - Not to alter the property, avoid making alterations without the landlord\'s consent. - Use of the Premises, using the property only for the purposes specified in the lease. There is especially here implied covenants: - s\. 42 Deasy's Act, pay rent when due, keeping in good repair, give up peaceable possession upon termination - s.16 Residential Tenancies Act 2004, avoid causing damage other than wear and tear, repairing damage done, access to repairs, routine inspections, no anti-social behavior ###### Landlord covenants Usual landlord covenants include: 1. **Quiet Enjoyment:** Allowing the tenant to use the property without interference. 2. **Repair of Structure:** Maintaining the structural integrity of the property if specified in the lease. 3. **Insurance:** Insuring the property against risks like fire or damage. 4. **Consent to Assign/Sublet:** Not unreasonably withholding consent for tenant assignments or subletting. 5. **Maintenance of Common Areas:** Keeping common areas in good condition if applicable. There is also here implied covenants: - s.41 Deasy's act, quiet enjoyment, no interruption in any way, because it would interfere with the exclusive possessions, transfer of right of possession as core to the granting of a lease - s.12 Residential Tenancies Act 2004, good structure, and repair, if necessary, function of utilities, no dampness ##### Termination The Lease can end - on its own when there is a fixed term tenancy - end through Surrender, Merger or Frustration - be ended by the parties through Notice to Quit or Forfeiture ###### Notice to Quit **Section 62 RTA 2004** governs notices of termination for residential leases. A **Notice to Quit** is used for periodic leases, where the notice period depends on the lease length, starting with a minimum of 28 days, which is a one sided notice of the landlord to the tenant or vice versa. For **Part IV tenancies**, termination is permitted only on specific grounds after six months and up to the sixth year, with these terminations closely monitored. Since 2021, for **indefinite tenancies**, termination beyond six months is allowed only on specified grounds indefinitely, requiring clear evidence such as enforceable contracts for property sales (as highlighted in *Hennessy v. PRTB*). Formal requirement of giving a reason for the termination in the notice, even when not protected period (Dunivya v PRTB) ###### Forfeiture Forfeiture refers to the landlord\'s legal right to terminate a lease before its expiration due to a tenant\'s breach of covenants, such as non-payment of rent or unauthorized use. The process typically requires serving a notice of breach and allowing the tenant an opportunity to remedy it before enforcement. The rules are different in the commercial and in the residential tenancies context: **Commercial** S.14 (1) Conveyancing Act 1881, if there is breach of covenant, the lessor must give a notice, referring to the breach and provide a remedy at first, if possible, he has to give reasonable time for that, giving the tenant the possibility to fix the wrong, after this time there is an entitlement on his side to forfeiture the tenancy and a right of re-entry to the premises or a right to recovering the possession by court preceding (force of law) if the landlord would have to use force to get rid of the tenants possession **Residential Tenancy** Under **Section 67 RTA 2004**, a breach of covenant allows landlords to serve termination notices under Section 62. ​ #### Hybrid Estates ##### The Prospective Effect of the LCLRA 2009 The **prospective effect** of the **Land and Conveyancing Law Reform Act 2009** means that it applies **mostly** only to actions, transactions, or events occurring after its commencement. It does not affect rights, obligations, or interests established before the Act, except **where explicitly stated.** This ensures a forward-looking application to modernize property law without disrupting existing arrangements. ##### How Hybrid Estates are treated Pre- and Post LCLRA 2009 **Before** the 2009 Act**,** leases for lives perpetually renewable allowed indefinite renewals, leases for lives combined mixed fixed terms with life estates, and feudal fee farm grants operated like perpetual leases with rent. **After** the Act, no new arrangements of these types can be created. Existing perpetual leases were converted to fee simple ownership, and the feudal system was abolished, simplifying property law. ##### Leases for Lives Perpetually Renewable **Leases for lives perpetually renewable** are agreements granting land for the lifetime of named individuals, with the right to renew the lease indefinitely upon their death. These leases effectively allowed perpetual tenancy, subject to payment of rent and adherence to conditions. ##### Leases for Lives Combined with a Term of Years **Leases for lives combined** **with a term of years** are leases that grant land for a set term of years (e.g., 99 years) or the lifetime of named individuals, whichever lasts longer. This arrangement combines a fixed-term lease with a life tenancy, ensuring tenure for the longer of the two periods. ##### Grants Subject to a Rentcharge **Grants subject to a rentcharge** are land transfers where the grantee (new owner) holds the land in fee simple but must pay a fixed annual sum (rentcharge) to the grantor or their successors. This rentcharge is an ongoing financial obligation tied to the land, not the owner. ##### Conversion Fee Farm Grants **Conversion fee farm grants** are legal mechanisms where leasehold interests are converted into fee farm grants, granting the tenant perpetual ownership of the land while maintaining an obligation to pay rent to the original landlord. ##### Feudal Fee Farm Grants **Feudal fee farm grants** are long-term land grants where the grantee holds the land in perpetuity (similar to freehold) but pays a fixed annual rent to the grantor. They resemble modern leases but lack a defined end date and often retain feudal obligations. The feudal fee farm grants in Irish land law arose as a mechanism under the feudal system, where land ownership was divided between a superior lord (grantor) and a tenant (grantee). The tenant was granted the land in perpetuity, subject to the payment of a fixed annual rent. This arrangement mirrored feudal obligations and allowed the grantor to retain an income stream while transferring near-permanent possession to the tenant. These grants became popular for securing long-term tenure, particularly in agricultural settings, blending elements of freehold and leasehold estates. Rights in Land -------------- #### Mortgages - General Things - Types of Mortgages - Protection for the Mortgagor - Protection for the Mortgagee ##### General Things Mortgages are interest in land, which are recognized as property rights, and are held in respect of the estates, which is why they are called burdens that are attached to the estate, held by somebody who's not the owner, which makes it a third-party interest. Mortgagor is the borrower, because he grants the interest, the property right in the land to the lender, the mortgagee. Mortgage helps unlock the economic value of land, because it's usually captured inside the land, not able to be utilized, lender gives sum of money as loan, trading against the value of the property as an interest in land as security. The more the value of an estate grows over time, the more security it holds, and the more money can a person lend of the bank, extracting the value of the land. Mortgagor therefore bears the risk of fluctuations of the property's value while he is in possession (which changes as soon as the bank takes possession) Important for buying houses, because with just one's salary most people couldn't afford loans for their homes, because they wouldn't have enough security, and for small businesses to get more loans to make investments. This are of law struggles with balancing interests of the lender and the home owner, home not just as an economic value but as a different right, people actually live in their homes, they need it for their security and wellbeing therefore it should be hard to get them out of there, but if there is over-regulation, this disincentivizes banks from granting mortgages. ##### Types of Mortgages Difference in three aspects: - mortgages in registered (public record of title, who holds it, are there burdens attached, is conclusive (n.c.)) and unregistered land (need to look at title deeds) - between legal and equitable mortgages (informal ways of creation) - and pre and post 2009 Act mortgages. **Pre 2009 Act** Legal mortgages of unregistered land could be created especially by conveyance of fee simple proviso redemption, giving title to the lender with guarantee of getting back the title in the property when debt is repaid. This didn't reflect the reality of who used the land, and they didn't allow that multiple smaller mortgages were taken because the property has been transferred in full. **Post 2009 Act** There is now only a legal charge, no mortgage by conveyance anymore, lender just gets only legal charge but no title, he gets a certain charge certificate, this applies to all land by 2009 Act (s.89 subs. 1), no other ways of Pre 2009 Act are effective anymore, cannot create legal effect. **For the equitable mortgages** there is especially - Mortgage through failure in formality, even if no deed has been executed there is a mortgage - Mortgage through deposit of title deeds, if hand over title deed or charge as security for money, assumption of mortgage, because without title deeds you cannot transfer title therefore you have evidence of intention of mortgaging, evidence for intention ##### Protection for the Mortgagor For the protection of Mortgagors there is - Statutory Law - Codes of conduct (soft law) - Common Law and Equity ###### Statutory Law **Unfair terms,** comes from contract law, Consumer Contract Regulations Act, implementing EU regulations, when not individually negotiated terms, they can be controlled and can be found to be void, especially when they are not clear or not easy to be understood High bar set for the finding of unfair terms, rarely successful to challenge a term, heavily litigated area In the Aziz case, it was found that mortgage contracts qualify as consumer contracts in residential situations, the court has to assess of its own motion, by operation of law, whether there is a consumer contract and so it falls within the scope of the Act ###### Code of Conduct **Code of Conduct on Mortgage Arrears 2013**, result of the housing crisis, when borrowing lots was easy even without much security or stress tests, protects primary residency borrowers There is a duty of the mortgagee for clear communication and flexibility, which means notice when mortgagors are in arrears, of the consequences, alternative repayment options, a moratorium for repossession proceeding, needs to wait 8 months from the point of getting into arrears, so alternative solutions may be found in the meantime Lender can be fined by central banks if he behaved against the code, and since the Supreme Court made clear in Dunne case, that when moratorium period is violated, the purpose of the code is defeated and courts should not give pass to repossession order, is has also legal (hard law) effect. **Consumer Protection Code 2012,** legal status is only that of a code of conduct, no legislative protection, warnings and information duties, fair assessment of suitability (likelihood of repayment) particularly when old age ###### Common Law and Equity **Common Law Precedents** - **Freedom of Alienation and Perpetuity,** here must be no interference with the right of the mortgagor of freely transferring his land without downsides, there can be no right to buying the property without the consent of the Mortgagor - **Mortgagees duties on the sale** **Equity of Redemption** - the right to a mortgagor's valuable interest in the mortgaged property - protection before the courts against agreements that interfere with the right to redeem the mortgage - right to make a claim on a payment of the surplus that arises from an order of sale of the property ##### Protection for the Mortgagee - Right of Possession of Documents of Title - Right of Installing Insurance - Right of Personal Action for Debt - Right of Repossession - Right of Appointing a Receiver ###### Right of Possession of Documents of Title S.90 (2) 2009 Act, there is right of possession of documents of title, minimizes the risk because the mortgagor cannot transfer Leads to duty of care to take reasonable steps to take care of them, give it to the mortgagor upon request ###### Right of Installing Insurance Right of installing insurance, or if there is a term in the contract of the mortgage a right to demand insurance, physical property is security for lender, value of property equals the security, interest of lender that the property stays intact, s.110 (1) 2009 Act ###### Right of Personal Action for Debt Right of personal action for debt, 2009 Act s.104 (2) (b), usually property is sold, proceeds of the sale are used to satisfy the debt, if they aren't sufficient, the bank can sue the borrower for the rest personally ###### Right of Repossession Right of recovering possession of the mortgaged property (repossession), because the property is usually in bad condition when people lived in it, bank has to improve to get a saleable condition and conduct the sale to get the most out of it to repay the debt Arises as soon as the ink dries, as soon as title is transferred There is a duty to exercise in good faith, for purpose of realizing security, as soon as lender is in possession, he is responsible for taking care of the property and for making a good price in a sale There is a notice of repossession needed And the need for independent determination of the necessity of the repossession, suggested that it should be judicial by court order, 2009 Act, s.97, mortgagee applies to court for an order of repossession, only way a lender can get possession is through such court proceeding, court has discretion "court may, if it thinks it fits" Postponement s. 101 2009 Act, if court thinks that borrower can fix his wrongs towards the lender in a reasonable period of time, he can make an order that the proceeding can be postponed, suspended, or be conditioned There is no duty for a sale, however, it is unattractive for banks to keep onto property because they have to take care of it, are responsible towards the borrower, but theoretically they can keep it indefinitely. ###### Right of Appointing a Receiver Mortgagee appoints the receiver, which is like a middleman, the Receiver is deemed to act as an agent for the mortgagor, maintain the property in the current state, get the most income out of it, wants also to help the mortgagee to pay down the debt. A broader duty of care was recognized in form of due diligence to manage the property in an optimal way, which is acknowledged as being the same duties of the receiver as the mortgagee has when exercising his power of sale. #### Easements - General Things - Forms of Easements - Ingredients ##### General Things Legal interest, property right that one holds without being the owner of the property (third parties interests) like mortgages Right to enjoy limited use of the another's land, there's no entitlement to possess land, rather some amount of power, therefore a right that attaches to one land and benefits/serves another, because it helps as an extension to make the other land more usable ##### Forms of Easements Most common forms are: - Right of Way - Right of Storage Easements can be positive and negative - Positive, allows the holder to do smth (walking on land when Right of Way) - Negative, forbids the grantor of the easement to do smth (building a wall when Right in Relation to Light, Right to a View) Land Law is interventionist here, has a narrow approach to what an easement can be, therefore limiting contractual freedom, because you don't want to overburden land so it becomes so restricted that you cannot use it effectively anymore and it gets very unclear/ uncertain which rights exist/complicates the matter, courts try to avoid situations where an owner is frozen in using his land effectively Reluctant regarding new kinds of easements, Categories of easements are not closed, there can be new ones that emerge and have to be recognized, but Land Law is reluctant, especially when negative easements are concerned ##### Ingredients - Dominant and servient Tenement - Owned and occupied by different People - Capable of forming subject-matter of a Grant - No Ouster Principle - Creation or Acquisition - No Extinguishment ###### Dominant and servient tenement There is a dominant (benefitted, accommodated) tenement and a servient (burdened) tenement Accommodation/benefit has to be to the land, it's not a contractual right but a property right, therefore regarding the land, anyone can use a right of way regarding a land for example if he wants to use the land ###### These are owned or occupied by different people ###### Capable of forming subject-matter of a grant Terms of the grant regarding the easement need to be clear, power of the dominant party must be precisely defined There cannot be positive acts/obligations granted, no payment of money, no creation of provision of hot water ###### No Ouster Principle If a right as claimed is so powerful as to become a possessory right, then it cannot be an easement, rather one tries to get the title by adverse possession = overlap between Easements and Adverse Possession Copeland, vehicle repair business, parked repaired vehicles of that on a strip of land of another, too much of an adverse possession claim, because the owner wouldn't have any reasonable use left anymore ###### Creation or Acquisition - Express - Implicated Easements **Express** Agreement through deed Distinguishment between grant and reservation of an easement, grant is the usual situation that a stranger (not the person of selling the property but another property owner) is responsible for the easement, reservation means that an owner of land, who sells a piece of this land, is responsible for the easement, matters, because there are different rules for inferring an easement (implied easement with reservation) **Implicated Easements** Law can imply the creation of an easement, unintentionally, creation by operation of law or equity - These rules often overlap, can occur simultaneously - Criticized because of such resulting over complexity, there could be streamlining to make it clearer and more efficient **Easement of Necessity,** Pallaceanne Management v AIB, landlocked property (no other access to land but by way over another's property), law implies/infers the existence of a right of way to that land, limited, as long there is no other access, just inconvenient access isn't enough (Frank Towey Ltd.) even if it's by water, just granted as long as necessary, must not be usable at all **Easement of Common Intention,** when there's a purpose for the use of the conveyed land which is only possible/effective when there is an easement (implied by the parties), Wong, purpose of property as in the lease contract as a Chinese restaurant, needed permission (easement) for construction of a large air condition to match health standards, definite purpose which demanded the easement, O'Flaherty's, business premises had direct access to Nassau Street which the business relied upon, closed access when reconstruction of the building, not inaccessible but not anymore from Nassau, not anymore compliant with the agreement **Easement of Non- Derogation from Grant,** when land is granted, vendor can't give with one hand and take with the other afterwards, Harmer, lease for warehouse, legal requirement for license with the condition that no buildings constructed around the warehouse included in the agreement, landlord constructed a building on his remaining land which threatened to jeopardize the license **The Rule in Wheeldon v Burroughs,** when land is split and therefore a part sold so someone else, when there was a usual way to the street over the land (continuous and apparent "quasi" easements), buyer will receive all the easements that are necessary to the reasonable enjoyment even when not mentioned in the contract **Reform in 2009 Act,** statutory implication, S. 40 (2) 2009 Act, where owner disposes in part, all easements granted that are necessary for the reasonable enjoyment (which were forgotten to write down) **s.71 (1) 2009 Act, words saving matter,** assumption when a transfer of land, any rights that benefit that piece of land are transferred with it (with all easements) **Easement of Prescription**, practice, long use over time can crystallize into a legal easement, presumption that servient owner has acquiescence in this (not consent, but tolerance/turning a blind eye), this method is based on a fictious grant (Fiction of Lost Grant): - 20 years uninterrupted use, then presumption that transfer by deed happened but now the grant has been lost - Defeated, when servient owner was throughout this time incapable of making a grant by deed (minor, mentally incapable) ###### No extinguishment Difficult to establish through non-use/abandonment, needs good evidence because it's a property right, which is valuable, especially Right of Way Just non-use is not sufficient, need to demonstrate the will of abandonment, by producing evidence that make a strong picture of that the easement didn't in fact exist anymore (circumstances, people, writing etc.) Acquisition of Estates and Interests ------------------------------------ LCLRA 2009, s 62, 63, creation and conveyance of estate or interest in land must be done by a deed, which is a contract that has more requirements There are exceptions, s63 2009 Act, when operation of law happens and when other legal rules are making positive exceptions #### Rationales for the Formalities - Protection - Interest of the State - Provision of Evidence **Protection,** particular groups of people are protected, because there is a legal effect only if a form is applied, vulnerable parties addressed, writing down, having it written down clarifies, takes time, and helps seeking legal advice, this can help prevent disadvantages, if one doesn't know, one can suffer risks that their intentions are not respected by law **Interest of the state,** mechanism to ensure taxes are paid, stamp duty, cost of tax when land is transferred, payment to get a stamp of approval to create a legal effect, property taxes, piece of paper proves that property is owned **Provides evidence** for resolving disputes, one does not have to rely on old oral evidence, which can fade **Disadvantage of formality is** that it creates cost and hurdles in efforts and time, which makes the process slow and costly, which makes it inefficient. #### Informal - Doctrine of Anticipation - Doctrine of Prescription - Adverse Possession **Doctrine of Anticipation**, Walsh v Londsdale, creation of equitable rights by operation of law, if there is a written notice of the agreement, establishes that equity treats parties as if a legal interest has been granted when there is a binding agreement to do so. **Adverse Possession, a**fter 12 years, if somebody was in exclusive possession of land and person fulfils the legal elements the original title/estate in the land of the owner is being extinguished, person (squatter) gets granted the estate by operation of law. This so called \"parliamentary conveyance\" theory of adverse possession in Ireland refers to the concept that adverse possession results in a statutory transfer of ownership from the original owner to the possessor. **Rationales** - Maximizing use of land by getting rid of vacancies, adverse possession ensures land is utilized rather than left idle, promoting economic and social benefits, that provides also an incentive and fairness for others to make use of vacant land, because the labors fruits go to somebody who owns something in fact and makes it prosper - Incentive for owners to use or otherwise lose, which motivates people to get going on their land - Gets rid of ambiguity which is created by the difference between the people using and the people (formally) owning a property, therefore makes the estates more transparent to the public, this provides a mechanism to settle disputes and clarify ownership after a long period of uncontested possession, avoiding indefinite uncertainty about land titles. Squatter can go to administrative office, which does registration, S 49 Registration of Title Act 1964, one can be registered then, you cannot be forced, it's just a claim you can choose to make or not. There can be part adverse possession Threshold of any evidence of any action of possession of the landlord is so low, that there is practically very hard to have adverse possession occurring at all, protective of the title holder. **Legal elements include:** - Exclusive Possession of the Squatter - For 12 Years - With Animus Possidendi - Not even minimal acts of the owner ##### Exclusive Possession of the Squatter Somebody else takes (adverse) possession of a land, which has to be factual possession, that is displayed with good evidence **Doyle v O'Neill,** to defeat title, use has to be definite and positive, there cannot be any doubt in the owners mind about the possessor being in adverse possession, clear signal of factual possessions, so there's no doubt about the erosion of the title happening **Leigh v Jack**, adverse meaning, that you do not have a consent and that the possession is exclusive and that the use is inconsistent with the plans of the owner (Inconsistent Use Doctrine) While *Leigh v Jack* had significant influence in its time, modern adverse possession law in Ireland has largely moved away from this principle. Courts now focus more on the factual possession and exclusion of the owner, rather than the compatibility with the owner's intentions. This shift has reduced the relevance of *Leigh v Jack* in contemporary adverse possession cases, emphasizing objective criteria like possession and animus possidendi instead of subjective elements like intended use **Cork v Lynch,** plan for piece of land for road widening, use of crashed cars for a garage, parked finished cards, improvements carried out, fencing etc., not inconsistent with the plans for the land, because it can easily be undone ##### For 12 Years It must be exclusively possessed for 12 years, which starts with the first time of the possession. Reset of the Period when there is an acknowledgement of title in writing by the squatter in any way. ##### Animus Possidendi Intention to possess the land, as if one was the owner, therefore exclusively, no need-to-know adverse possession or to pursue to take over the land one day Factual possession constructs the intention. The courts deduct it from the facts of the case, which is why one has to take all the facts in question and make a whole interpretation/judgement of it. **Minogue v Clare,** ceasing rent payments, sub-let property and received rent and profits, court inferred intention ##### Not even minimal acts of possession by the owner Minimum acts of possession of the holder of the title are sufficient to stop the adverse possessions, showing of taking actions towards the land is enough, no need for physical possession **Mulhern v Brady**, a field, title holder lived 4 miles away, came 4-5 times a year to take a look, started planning permission, asked somebody to remove a cat from the land, sufficient action Feudal Roots of the Irish Land Law System ----------------------------------------- The feudal roots of the Irish land law system trace back to the Norman invasion of Ireland in the 12th century, which introduced the feudal system of landholding under English law. Under this system the following was the rule: 1. **Crown Ownership**: All land in Ireland was considered to belong to the Crown, and individuals held land through a system of tenure, with obligations owed to the Crown or a superior lord. This structure mirrored the feudal system in England. 2. **Subinfeudation**: This occurs when a tenant creates a subordinate tenure by granting part of their land to another person, making the new tenant their vassal while they remain responsible to their own superior lord. This creates a hierarchical chain of tenures, with multiple layers of obligations. 3. **Substitution**: This involves replacing one tenant with another, where the new tenant steps into the existing relationship with the superior lord. There is no creation of a subordinate tenure; the original tenant is simply replaced. Over time, the formal feudal system was gradually eroded by statutory reforms, particularly the abolition of feudal tenures under the Land and Conveyancing Law Reform Act 2009. Those reforms were necessary because there was no visibility of rights, therefore way less transparency than nowadays, this meant a hard enforceability of the obligations for the people holding the power over the land and therefore less taxes because of the fragmentation, also there wasn't any freedom of alienation, which was invented to make the transition more efficient. You can today still see the influences of this system in following aspects: **Ownership as Estates in Land**: Land ownership in Ireland is still structured in terms of \"estates,\" a concept inherited from feudal law. The most common is the **fee simple estate**, which resembles the closest thing to outright ownership but reflects the feudal notion of holding land subject to a superior entity (originally the Crown) **Leasehold tenures,** where land is held for a fixed term under a lease, mirror the hierarchical structure of the feudal system. These arrangements, common in residential and commercial property, reflect the subordinate relationships of tenant to landlord, a modern echo of feudal obligations. **Land Registration**, the concept of registering titles to land, central to the Irish property system today, has its roots in feudal practices of documenting tenures and obligations to the Crown or lords. Effect of Equity ---------------- #### Doctrine of Notice #### Doctrine of Overreaching #### Doctrine of Failure of Formalities - Freehold Estate - Easements - Mortgages Legislature for the Exam ------------------------ Relevant snippets from: LCLRA 2009 RTA 2004 Landlord and Tenant Act 1980