Property Law

Nature of land law and its historical background

Main topics of understanding

 Ownership and Possession
 Real and Personal property
 Tenure and Estates
Feudalism and Tenure
Beginning of feudalism and concept
 Henry II – 12th century – feudal system in Ireland
 All land ultimately belonged to him
 Landlords derived ownership directly or indirectly from the crown
 No concept of absolute ownership or allodial tenure
 King---- supporting Landlords granted large areas of land------subject to terms and
conditions (tenure) and allotted period of time (estate)
 Landlords _ ‘tenants in chief (in capte)’ ------ sub-grants to their supporters ‘mesne
tenants’ ------ passed on and on--- last grant of land to ‘demesne tenants’
 Feudal pyramid of interests
 Although land was granted to person below the, all land ultimately belonged to king
 Feudal system not fully imposed until 17th century
Services and Incidents
Under Tenure -----Terms and conditions of feudal pyramid known as services – things which
had to be performed by the tenants and incidents – things which attached to the type of
tenure the tenant held.
Forms of alienation
1. Subinfeudation – transfer of property from king to in chief and so on in the feudal
pyramid
2. Substitution – surrender of rights by an tenant and his substitution with a third party
with same services and incidents
3. Mortmain – transfer of property to perpetual body like a church. Removed land from
market and excess power to church

Development of Law and Decline of feudalism

1. Magna Carta – 1217: Abolished alienating the land to the extent that the part
tenants retained wouldn’t be able to provide the services to the feudal lord,
and abolished mortmain.
2. Quia Emptores – 1290 a.k.a Statute of Westminister III
a. Subinfeudation abolished (played an important role in decline of
feudalism as land could not be broken, feudal pyramid just got smaller
in time)
b. Free tenants allowed to alienate the land without lords consent (first
time practice, still continued today)
c. If alienated, services need to be apportioned between various parts
d. Affirmation to prohibit mortmain.
Que Emptores not applicable to crown and was carried out during the time of
plantations in Ireland. Included clause ‘non obstante’ which removed the applicability
of QE with tenants in chief who subinfeudated the land. Feudal pyramid decline in
English and rise in Ireland.
3. Tenures abolition Act , 1662: Abolished tenure (services and incidents
attached to the grant). Remaining tenures converted to free and common
socage. Ex: aids, wardship, fine for alienation abolished. Services of rents
 remained. What remained was free tenure and common socage – known as
Freehold tenure.
4. Succession Act – 1965: Section 11(3) abolished the incident of escheat to the
state or a mesne lord. In many ways, Irish state an ultimate landowner like
crown. If died intestate, land vested with the state as ‘ultimate intestate
successor’.
5. Land and Conveyancing Law reform Act, 2009: death of feudal system
a. Section 9 (2) abolished any emaining feudal system
b. Does not abolished doctrine of estates; basis of landholding in feudal
system
c. Concept of life estate, fee simple and fee tail are all remnants of
subinfeudation under feudal system
d. Concept of not owning land per se but the benficial interest and the
length of time to enjoy such time still exists – developed from feudal
system
e. Act repealed Tenure abolition 1662 and Que emptores 1290 but still
retains fee simple and freely alienable land under QE still practiced
f. Fee farm grants prohibited to be created after December 2009, it is
still possible – influence of subinfeudation and non obstante QE.

Law on Finding

Items attached to land

 They are part of the land and are held by the landowner
 Leigh v. Taylor – Very expensive two tapestries affixed to pieces of wood on the
wall. Tenant for life died, the person who inherited the house argued that since
affixed it was part of land and the estate argued that it was a removable object and
belonged to deceased’s estate. Court ruled that – not attached to land , two reasons
– a) object easily removable and ‘removed without anything but a trifling disturbance
if the material of the wall’. Court drew comparison with fresco that is attached to the
wall and cannot be removed whereas tapestries were removable objects. b) intention
to the person who attached the object not to form part of the house.
 Modern case - Botham v. TSB Bank – kitchen cabinets were fixtures not white goods
such as fridge. Must consider the cost or damage to remove it.
 Hulme v. Brigham and Another – receiver to enter property and take possession.
Reciever contened that 6 printing machines were fixtures and became part of the
freehold. Court decided that the machines stood on their own weight and not affixed
to floor or any part of building. The driving apparatus of the property were attached at
certain points but this would be a simple matter to detach and will not cause any
dmage to property. The objects did not lose their chattel nature and were not
fixtures.

Found in or under the land

Above land
 Anything found above land – best title - the owner of the find - second title to
the finder unless occupier manifests obvious intention to exercise control.
 Parker v. British Airways Board – passenger in airport lounge which the defendants
were leasing – found gold bracelet on the floor- gave it to employee to return to
original owner – gave number and name if not found. BA sold and retain the
proceeds.
Plaintiff taking the bracelet into his care and control – acquire rights of possession
except against original owner. Only way for defendants to displace rights if they show
 an obvious intention to exercise some element of control over both the lounge and all
its things. Then it would be considered in defendants possession before plaintiff
found it.
 Armory v Delamirie – Chimney sweep found valuable jewel during course of his work
and gave it to goldsmith for valuation who quoted very low and decided not to.
Goldsmith refused to return. Court found that chimney sweep has best title except
against true owner.
 Hanna v. Peel – Soldier stationed found brooch unaware by the owner, soldier
entitled as finder.
 Tamworth Industries v. A-G – if finder was given absolute title, then less incentive to
find true owner. Only exception to this rule is where the owner has abandoned or
right to recover has lost. Finder has better title than occupier. Money found beneath
floorbeads and take-away food cartons in a dilapted building. This building indicated
absence of manifested intention to exercise control.
 In Chairman, National Crime Authority v. Flack, court ruled in favour of the occupier
to have better title. Police seized bag of money believing it to belong to her son,
although she was unaware of its presence or content. Flack manifested obvious
intention to exercise control over the house.

In / Below land
 Anything found below the land – best title is the owner of the find - second
title to the owner of property/occupier
 Elwis v. Brigg – Pre-historic boat found below six feet – not treasure trove – owner of
property best title over finder as it is below the land.
 Waverly Borough Council v. Fletcher – Public park, defendant lawfully entered
property and used metal detector, found medieval brooch after digging nice inches
deep into the ground. Not found to be treasure trove, then any object found in or
below the land is distint to finding things above the land, occupier has second best
title except against true owner rather than the finder.

Treasure Trove / Natural Resources

 General rule , Treasure trove belonged to the State which included money, coin,
gold, silver whose owner is unknown and was hidden.
 Webb v. Ireland – Permission to view derrynaflan church, plaintiff used metal
detector and found valuable chalice. State argued that it was treasure trove and
plaintiff has no right of ownership. Court held that treasure trove was a royal
prerogative. However under 1937 constitution, SC found that state have ownership of
all antiques not just gold and silver but of national importance. Finder entitled to
some reward.
 Trespass to be considered, any act for which no permission, then trespass. Above
case, plaintiff did not have permission to dig lands so trespass. Although Trespass
must be deterred, court rules that consideration must be given to the degree of
trespass and determined that in this case, Webb was entitled to reward.
 Article 10 of the Constitution, All natural resources, including air or forms potential
energy belongs to the state. All treasure trove exends to the soverign rights of the
people in Ireland.
 Any item of Archaeological significance will come under Section 2(1) of National
Monuments Act amended in 1994 - To include treasure trove after the decision of
Webb.
Doctrine of estates

Freehold
estate

Fee simple Life estate Fee tail

Absolute Modified
fee simple fee simple

Fee simple
Determinable
subject to
fee
condition

Condition Condition
precedent subsequent

 Estate of two kinds: freehold estate and leasehold estate

Fee simple
 Concise definition – ‘A freely alienable estate with the potential to last forever’.
 This is the largest estate in law; in other words, it lasts for the longest period of time
and bring with it the most extensive control rights. This is the closest to absolute
ownership.
 Two distinctive characteristics:
1. Freely alienable without bounds of general law
2. It has the potential to last forever
 Byrne v. Byrne : Any attempt to impose some form of restriction on the alienability of
fee simple is void.
 First introduced the principle of alienability under Que Emptores 1290 and
subsequently repealed by LCLR Act 2009. Section 9(4) – Fee simple remains freely
alienable
 Section 11(2) of the LCLR Act 2009 – fee simple in possession is the only freehold
estate in law that may be created or disposed of and states that Fee simple in
possession includes:
o A determinable fee
o A fee simple subject to a right of entry or of re-entry
o Fee simple subject only to –
 Power of revocation
 Annuity or other payment
 Right of residence which is not an exclusive right over the whole land
 Fee simple is of two types:
o Absolute fee simple – free of all restrictions or burdens unless they are
otherwise imposed by legislation
 o Modified fee simple
 A determinable fee
 A fee simple subject to right of entry or re-entry

A determinable fee
 This is one where the original grantor of land sets out a specific determining event,
and on the occurrence of that event the fee simple will come to an end and revert
back to the grantor. Determinable fee will have a state of affair that exists up until the
specific determining event. This event may or may not happen.
 If the determining event is certain to occur, then the estate is not a determinable fee.
 In a determinable fee, the interest of the grantor is referred to as ‘possibility of
reverter’.
 On the occurrence of the event, the fee simple absolute will revert to the grantor and
they can take immediate possession.
 Use of words such as – ‘for as long as’, ‘while’ and ‘until’

Fee simple subject to condition of entry or re-entry

 Condition precedent: A condition set down by the grantor that must be satisfied by
the grantee before the fee simple is received. The grantor will hold the fee simple
until that condition is fulfilled.
 Condition subsequent: Where the fee simple is granted immediately to the grantee,
but if the specifying condition is not met, it will result in the forfeiture of property. The
condition is placed after the grant has taken place. Unless that condition is fulfilled,
the grantor will hold the ‘right of re-entry’ and the interest can revert back to the
grantor. This is does not automatically revert to grantor but just the right of re-entry,
unless they exercise this right to get the fee simple absolute.
 Use of words such as – ‘provided that’, ‘but if’, ‘on condition that’.

Difference between condition precedent and subsequent – Re Waring’s Will Trust and
In Re Porter

Validity of conditions
Following three reasons for conditions to be found void:
 Void for uncertainty –
o It is imperative that the condition or determining even would be expressed
with sufficient certainly to allow the court to assess whether or not it had
actually been fulfilled by the transferee. If the condition is not sufficiently
certain it will be deemed invalid.
o Words in the grant are too vague or have multiple meanings.
o Re Waring’s Will Trust – Hutton J, “The standard is unknown and incapable
of ascertainment”.
o Re Coughlan (1963) – this is the Irish locus classicus of the certainty
requirement. Coughlan left his farm and dwelling on trust for his nephew.
Nephew received a fee simple subject to a condition subsequent. Although
the nephew went to live on the farm within the year, he did not get married
and when the trustees attempted to re-enter and terminate the fee simple, the
nephew claimed that the residence requirement was invalid for uncertainty
because it did not clearly show how long he was to reside there for. The HC
found that the residence and marriage requirements could be seen as two
separate conditions and as he had not married and the marriage requirement
is valid the trustees were entitled to terminate the fee simple.
 On appeal, the SC agreed that the marriage requirement was valid
and the residence requirement was invalid but refused to see these as
two separate conditions. They were not severable. Because the
 resident requirement failed, the marriage requirement which could not
be severed from it would also fail and the entire condition subsequent
was to be struck out.
 This decision endorsed the principles that 1. Insufficiently certain
conditions can be struck out and 2. Whether a composite condition is
severable depends upon the intentions of the transferor, bearing in
mind the law’s preference for a construction that does not involve
termination of a FS.

 Void for the inability of alienation:

o Any conditions that result in the fee simple no longer being alienable or
restricting alienation is void.
o Basic characteristic of the Fee simple is that it is freely alienable. Conditions
and determining events will be struck down if they restrict alienability.
o Byrne v Byrne – testator put a condition that that, “in the event of my
nephew….attempting to sell the said farm….or in any way parting with the
posessionof them I revoke the bequest of the said farms to him and in that
event I leave them to the next heir on the same conditions”. This was held
void by Budd J.
o Re McDonnell’s Will – condition that ‘the fee simple not to be sold or
assigned to any person who is not a member. Or descendent of a member of
my family. It was held void as fee simple is not freely alienable
 Void for being contrary to public policy
o Conditions or determining events will be deemed void if they are against
public policy for reasons such as they are illegal, immoral or a violation of
constitutional rights.
 Marriage:
 Courts have tendency to save the gift. Condition on fee simple
until the person remained unmarried was not void – Re
Robson
 Conditions that absolutely prohibit marriage are invalid on
Public Policy grounds, although conditions compelling
marriage are acceptable. In Kiely v Monck (1795) - Condition
that one could only marry someone who enjoyed an exorbitant
income standard was struck down as it excluded all but the
most exceptional people.
 Religion
 requiring someone to practice a certain religion or to marry
someone who professes a certain faith are particularly difficult.
In Re Burke’s Estate (1951) – a condition requiring someone
to practice Catholicism was struck down. There would also be
difficult with such a condition from the perspective of the
freedom of religious conscience under Article 44 of the
Constitution.
 Children – law sees children as vulnerable individuals, conditions or
determining events that require children to live apart from their parents
are invalid. Re Boulter (1922) – condition to be raised in England and
to be abroad for a maximum of 6 weeks per annum where their
mother was German and their father was forced by economic
necessity to work abroad was struck down. Re Johnson: Morgan v
McCaughey (1986) – required a 15 year old boy to live apart from his
parents – deemed invalid.
 Discriminatory Conditions – if designed to have, or actually do have
the effect of perpetuating any kind of bad feeling between categories
 of people – susceptible of being struck down on the grounds of public
policy.
 The general principle against these kind of conditions has been
bolstered by Section 6 of the Equal Status Act 2000 which deals
with the alienation of property.
 Section 6 prohibits discrimination on the basis of gender,
marital status, family status, sexual orientation, religion, age,
disability, race and membership of the Travelling Community.
 Exceptions of any disposal of an estate or interest in premises
by will or gift.
 Fiona De Londras notes that the “exceptions are so far
reaching as to appear to have removed the applicability of the
general principle of non-discrimination from the conditional and
determinable disposition of fees simple”.
Life estate
 Granted to someone for the duration of the named person’s lifetime.
 The person whose life dictates the estate is known as the cestui que vie. While the
life estate holder (life tenant) is normally also the cestui que view, this is not required.
In cases where the life tenant and the cestui que vie are different persons, the life
tenant is said to hold a life estate cestui par autre vie.
 A life tenant is entitled to alienate his life estate but the transferee receives a life
estate par autre vie – the cestui qui vie does not change.
 Where a life tenant of a life estate par autre vie predeceases the cestui que vie the
remaining rights can be transferred by means of a will or under the rules of intestacy.
 In every case of a life estate there will be someone with a future interest over the
property i.e. someone who is entitled to take possession of the property in the future
(i.e. when the cestui que vie dies). This person will generally be either a
remainderman or a reversioner.
 A remainderman will be a third party i.e. neither the grantor nor his successors nor
the life tenant who has been expressly granted the future rights over the property.
The interest held by the remainderman is known as the remainder.
 A reversioner is the grantor (or his successors in title) who simply has not given away
his future rights – he has only given away rights for the lifetime of the cestui que vie.
The interest held by the reversioner is known as the reversion.
 LCLR Act 2009 Act provides that a life estate exists only in equity. Therefore,
anytime a life estate is created, it will take effect on equity as opposed to in law and
will create a trust of land. Hence, the life tenant is subject to the conditions of law in
that Act with regards to alienation.
Doctrine of waste
 Because the life tenant only has rights for a lifetime, there may be a tendency on
his part to exploit the land or to fail to mention it in the way that someone with
more substantial rights would.
 Waste is action that has an impact on the land. The future interest holders can
take an action for injunction or damages in lieu thereof if they discover the life
tenant engaged in prohibitive waste. There are four varieties.
 Voluntary/Affirmative Waste – comprises positive acts that have an impact on
the land (i.e. cutting down trees). All life tenants are automatically liable which
allows for exploitation of natural resources only where 1. It is required for the
maintenance of the land 2. It is expressly permitted in the grant 3. The land is
suited only to that purpose.
 Permissive Waste – Permissive waste is the failure to do what is necessary for
the maintenance of the land. The grantor must make the life tenant expressly
liable for permissive waste.
  Ameliorating Waste – acts that have a positive effect on the land. The courts will
generally not restrain such actions nowadays.
 Equitable Waste – ‘that which a prudent man would not do in the management
of his own property’. the wanton destruction of land for which all life tenants
(including those made unimpeachable at waste) are liable.

Fee tail
 This is a type of estate that lasts for the duration of a bloodline and was originally
designed to keep land within a family.
 Section 13 of the LCLR Act 2009 – has modernised this area and any attempt to
create a fee tail in the future will result in the creation of a fee simple. Furthermore,
any fee tails in existence will be converted to a fee simple automatically.
 It should be noted that there are two important exceptions to the automatic
conversion (Section 13(4)) known as ‘Barring the entail’:
o Protectorship –
 This requires the consent of the Protector, as long as protectorship
exists. The protector is normally the person who is in possession of
the land under a prior freehold estate, alternatively the grantor of the
fee tail can nominate a protector in the deed which created the fee tail.
o Fee tail after the possibility of issue extinct –
 This states that there is no automatic conversion where a fee tail is
held by a tenant in tail after the possibility of issue extinct. In other
words, the last person in the line of descent.
 If there is no heir possible, there is no automatic conversion to a fee
simple and the person entitled to the reversion or remainder following
the fee tail must succeed to the land.

Fee farm grant

 This is a fee simple under which the grantee has to pay rents to the grantor. The
grantees successors in title must also pay rents to the grantors or their successors in
title.
 The basis is the feudal system and subinfeudation
 Renewable Leasehold Conversion Act 1849 – right to convert any perpetual
leases renewable for life to fee farm grants subject to payment of economic rent.
 Landlord and Tenant (amendment) Act 1980 - any perpetual leases renewable for
life not converted into fee farm grants will be converted to fee simple
 Section 12 of LCLR Act 2009 prohibits creation of farm fee grants from 1 December
2009
 If an agreement attempts to create a fee farm grant, it will be conveyed as a fee
simple and will not have any rents or covenants attached to it.

Influence of Equity
 Statute of Uses, 1634 and the concept of Trust
 Supreme Court of Judicature Act 1877
 Concepts of equitable interests and estates
o Trust
o Mortgages
o Restrictive covenants
 Bonafide purchases without notice – equity’s darling

Doctrine of Notice
Section 86(1) of the LCLRA 2009 states different types of notice
 Actual notice
  Constructive notice
 Imputed notice

Section 21(1) of the LCLRA 2009 – Overreaching – restricts the doctrine of notice subject
to limitations contained in section 21.

Co-ownership
Two types of co-ownership

1. Joint tenancy
 The right of survivorship
 Four unities should be present:
o Unity of possession
o Unity of interest
o Unity of title
o Unity of time

2. Tenancy in Common

Creation of Joint tenancy and Tenancy in common

In Common Law
 Presumption of Joint tenancy unless rebutted

In Equity
 In favour of Tenancy in common

Rights of Co-owners
Right of possession
Right to alienate
Right to receive rent profits

Severance of Joint tenancy

Severance in Law
 Acquisition of another interest
 Alienation

Commorientes

Severance in Equity
 Mutual agreement
 One joint tenant acting upon their own share
 Course of dealing

Effect of LCLRA 2009

 Section 30 – prior consent
 Section 31 – if consent withheld unreasonably

Termination of Joint tenancies and Tenancies in common

 Union in a sole tenant
 Partition and sale
Pre LCLRA
 Clarke v. Bodkin

Post LCLRA
Section 31

Adverse Possession
 Doctrine of adverse possession – squatter – de facto right through long use
 Statute of Limitations 1957 –
o Section 13(2) – 12 years – 30 years and 60 years
 Rationale for the doctrine - Dundee Harbour Trustees v. Dougall – ‘the quieting
men’s titles’
 Grand Chamber of the European Court on Human Rights – correct balance existed
between – peaceful enjoyment of possessions and demands of pubic interest
 Adverse possession without knowledge of landowner or squatter – Murphy v, Murphy
 Postponement of limitation period:
o Disability
o Fraud – Section 71(1)
o Mistake – Section 72(1)

Elements for the doctrine of adverse possession

1. Possession
 Section 18(1)
 Meaning of possession: Irish High court - Dunne v. Iarnrod Eireann
 Doyle v. O’Neill – appropriate degree of physical control
 English case- Thorpe v. Frank – establishing factual possession

2. Adverse
 Possession must be adverse to the landowner
 Battelle v. Pinemeadow Ltd

3. Animus possidendi or discontinuance

 Animus possidendi – possession of land in exclusion of all others
 Keelgrove Propperties Ltd v. Shelbourne Development Ltd – permission of the
true owner was asked
 Retention for future use – conflicting decisions
o Leigh v. Jack – not inconsistent or not interfered with the future intended
use
o English case of J A Pye(Oxford) Ltd v. Graham – negated the above
decision – cannot infer intention of future use as the basis
o Irish case – Cork Corporation v. Lynch
o Seamus Durack Manufacturing Ltd. v. Considine – Barron J – intention of
defendant/squatter is relevant
o Dundalk UDC v. Conway , Dunne v. Iarnrod Eireann
o Conflicting use
 Position of Law Reform Commission

4. Successive adverse possessors

 Section 18 sets out limitation period
 Dispossessed landowner regaining interest – Clark J in Dunne case – degrees of
possession
 Landowner retake possession possible or not examples
 Section 58 acknowledgment of ownership must be in writing
Effect on title and parliamentary conveyance
 Doctrine of Jus tertii – third party has superior right to dispossess squatter
 Parliamentary conveyance to squatter – Real Property Limitation Act 1833
 Adverse possession of leasehold – section 15 of the Statute of Limitations Act
1957
o English case – Tichborne v. Weir – not possible – easily displaced incase of
forfeiture
o Irish case – Perry v. Woodfarm Homes Ltd – squatter protected if no forfeiture
until lease expires
o Registered land under Section 49(4) of Registration of Title Act 1964 –
registration of adverse possession after 12 years

License and Proprietary Estoppel

 Permission to exercise right over land or to enter land
 Types of licenses:
o Bare licenses
 Weak rights – permission to be on land – public places, park, shops
etc.
 Packing up period – reasonable length of time
 Quasi-public space
o License coupled with interest
 Proprietary interest – profit a prendre
 Woods v. Donnelly
Contractual licenses
 Revoking licenses
 Hurst v. Picture Theatres Ltd. – implied term in the contract while watching movie,
unless expressly mentioned to the contrary
 Winter Garden Theatres Ltd. v. Millennium Production Ltd.- same principles also
found in Irish case of Whipp v. Mackey
 Burden on third parties : no confirmed position but three positions
o 1) Contractual licenses do not bind third parties
 Clore v. Theatrical Properties Ltd
 King v. David Allen and Sons Ltd

o 2) Contractual licenses may vest an equitable interest in the licensee which a

successor in title is bound by if the third party is on notice of them
 Errignton v. Errington and Woods – argued against King and Clore
case

o 3) Contractual licenses are never binding on third parties, even if they do

have notice of the licence, but a constructive trust may be created which the
third party is bound by
 Ashburn Anstalt v. Arnold – rejected Errington case in obiter
 Binions v. Evans – one of first cases which considered constructive
trust

Estoppel license / Proprietary Estoppel

 Court will grant license holder an interest in land which they believe they have or
more specifically, they have been induced to believe they have and rely on this belief
to their detriment.
 Generally, three characteristics:
a. Representation
b. Reliance
 c. Detriment

 Categories of Proprietary estoppel:

a. Imperfect gift:
 Dillwyn v. Llewelyn - estoppels was not mentioned but the formula is
used.
 Thomas v. Thomas – husband deserted wife and improvements on
property

b. Improvement interests:
 Ramsden v. Dyson – Lord Kingsdown explanation

c. Licenses:
 Shield not a sword but now courts more flexible

 Development of Proprietary estoppel:

o Cullen v. Cullen – terminally ill father – wife passed on mobile home to son –
Kenny J – precedent of Central London Property Trust v. High Trees House
Ltd.
o Pascoe v. Turner – widower defendant invited to house and provided
assurance – plaintiff had affair – court relied on Inwards v. Baker – equity will
intervene – substantial expenditure on the property. Court followed the test in
Crabb v. Arun District Council
o Haughan v. Rutledge - Blaney J – Snells ‘Principles of Equity’ – for estoppel
– a) detriment – b) expectation or belief – c) encouragement – d) there must
be no bar to the equity -- also quoted Ramsden v. Dyson

 Rights of residence: law not very clear

o Unregistered land:
 Exclusive right
 Land and Conveyancing Act 2009 – will be held on trust
 General right
 Mostly, give rise to charge to be satisfied in monetary terms.
 National bank v. Keegan

o Registered land:
 Section 81 of Registration of Title Act 1964 – no alienation of
property unless the right was an exclusive right of the whole of the
land – considered burdens over registered land
 Johnston v. Horrace – Lavan J – consideration when valuation –
injunction granted as defendant has no proper provision – based on
the case
 Bracken v. Bryne – Clarke J insights

Mortgages
o LCLRA 2009 provides some changes that effect mortgages after 1 December 2009.
Important to remember effect before and after the Act.

Unregistered land
o Pre LCLRA – still valid
 o Mortgage creation of freehold land:
 Conveying the fee simple
 By demise

o Mortgage creation of leasehold land:

 Sub-demise
 Assignment

o Post LCLRA
o All of the above ways are abolished by the Act
o For unregistered land, mortgages only by way of charge by deed – Section
89(1) of the LCLRA, 2009

o Equitable Mortgage:
o Section 89(6) of the LCLRA – does not affect any equitable mortgages
created
o Three main ways
 Deposition of title deeds
 BOI v. Hanrahan
 Agreement for a legal mortgage
 Transfer of the interest
Registered land
o Pre LCLRA
o Governed by Registration of Deeds and Title Act 1964 and Registration of
Title Act 2006.
o Mortgages created only by way of a charge by deed or will.
o Charge a burden on mortgagers folio.
o Section 62 of Registration of Title Act 1964 mandates that charges must be
registered

o Post LCLRA
o Charge by deed or will still applies.
o Before December 1 2009, charge may be in a form ‘as may appear to the
registrar to be sufficient’. After that, it must be in prescribed form. Wills are an
exception from form.

o Equitable Mortgage:
o Not common registered land
o Equitable mortgages had to be registered as lien in the land before 31
December 2009.

Enforcing Mortgages
o Mortgages created before 1 December 2009 – Conveyancing Act 1881-1911
o Mortgages after - Part 10 of LCLRA 2009

o Section 96(1) (c) of LCLRA 2009 – power and rights of mortgagee:

a) protecting the mortgaged security; or
b) for the realisation of the security

1. Possession
o Pre 2009 Act:
o Unregistered land:
  entitled to possession and no court order needed
 family property – possession only by enforcing the security
 Family Home Protection Act 1976 – Section 7 – non-owning
spouse willing to make repayment – court will adjourn
proceedings. Same applies to Civil Partnership and
Obligations of Cohabitants Act 2010 – Section 32.
o Equitable mortgage:
 No entitlement without court order
o Registered land:
 Order 52 rule 3 of the Rules of the Superior Courts , 1986 and
 Section 62(7) of the Registration of Title Act 1964
 Application to court is mandatory

o Post 2009 Act

o Section 97 of the LCLRA – no possession unless court court except
where mortgages consents to possession in writing.
o Section 101(1) provides some protection to mortgagor who are
struggling to repay

o Start Mortgages Ltd. v. Gunn and Gunn

o Decision of Dunne J – unintended lacuna created by new act and
repeal of old act – right had to accrue before 1 December 2009 for
enforcing the old law
o Uncertainty created – matter was ultimately resolved with LCLRA
2013

o Consumer protection legislations

o The Consumer Credit Act 1995:
 Transparency in agreements
 Section 126 – mortgage protection insurance

o The Consumer Protection Code 2012:CBI issued guidelines on banks

 Code deals with arrears handling
 Zurich Bank v. McCannon – non-compliance with code may
lead to CBI imposing sanctions but will not render mortgage
void
 Irish Life and Permanent Plc v. Financial Services
Ombudsman – courts are vigilant and non-compliance with
code is taken into account when pursuing remedies

o Code of Conduct on Mortgage Arrears: CBI issued guidelines on

lenders
 Stepstone Mortgage Funding Ltd. v. Fitzell – refused
possession as it failed to comply with code

2. Power of sale
o Possession is usually the first step
o Pre 2009 Act
o Express power of sale
o Statutory power of sale
 Section 19 of the Conveyancing Act 1881 except equitable
mortgage ( court order only)
 Power of sale arising: once the monies become due
  Power of sale exercisable: Section 20 of the Conveyancing Act
1881
 Notice of arrears and default for 3 months after notice; or
 Interest payable in arrears for 2 months after being due; or
 Breach of provision. Letter must be sent giving 28 days
warning

o Post 2009 Act:

o Section 96(1) (b) of the LCLRA 2009 – power of sale arises as soon as
mortgage is created
o Section 100 of the LCLRA 2009 – power of sale is exercisable
 Notice of arrears and default for 3 months after notice; or
 Interest payable in arrears for 2 months after being due; or
 Breach of provision. Letter must be sent giving 28 days warning
And 28 days-notice to the warning of possibility of sale and court
order has been granted.
o Re Edenfall Holding: value below the accepted value but no other alternative

3. Appoint a receiver
o Subject of mortgage owned by a business
o Power to appoint receiver arises
o Monies become due under Section 19(1) of the Conveyancing Act 1881
o Creation of mortgage under Section 96(1)(b) of the LCLRA 2009
o Exercisable only when condition under Section 100 of the LCLRA

4. Foreclosure
o Abolished by 96(2) of the LCLRA 2009
o Procedure where mortgagors equity of redemption is extinguished and the
vesting absolute ownership in mortgagee

5. Doctrine of consolidation
o Joining mortgages of one mortgagee if value of one depreciates but the other can
cover.
o Not possible under housing loan mortgages – section 92 of LCLRA 2009

6. Doctrine of Marshalling
o Webb v. Smith –
o Re Lynch’s Estate – also applies to judgement mortgages

Rights of Mortgagor
o Rule against clogs on equity of redemption
o Irredeemability
o Postponing the date of redemption
o Knightsbridge Estate Trusts Ltd. v. Byrne
o Penalties
o Chapple v. Mahon
o Collateral advantages
o Biggs v. Hoddinott
o Irish Shell & BP v. Ryan

Priorities
 o If unregistered land – governed by statutory rules in the Registration of Deeds Act
1707 or equitable principles of priority
o If registered land – priority to registered interest – if both, then whichever was
registered first

Judgement Mortgages
Refer notes