Land Registry & Estates
Land and Conveyancing Law Reform Act 2009
PART 2
Ownership of Land
Ownership and abolition of feudal tenure.
9.— (1) From the commencement of this Part, ownership of land comprises the estates and interests specified in this Part.
(2) In so far as it survives, feudal tenure is abolished.
(3) Subsection (2) does not affect—
(a) the position of the State under—
(i) the State Property Act 1954,
(ii) section 73 of the Act of 1965,
(b) the concept of an estate under section 10,
(c) any fee farm grant made in derogation of the Statute Quia Emptores 1290,
(d) any surviving customary right or franchise.
[SQE 1290]
(4) A fee simple remains freely alienable.
Estates and interests in land.
10.— (1) The concept of an estate in land is retained and, subject to this Act, continues with the interests specified in this Part to denote the nature and extent of land ownership.
(2) Such an estate retains its pre-existing characteristics, but without any tenurial incidents.
(3) All references in any enactment or any instrument (whether made or executed before or after the commencement of this Part) to tenure or estates or interests in land, or to the holder of any such estate or interest, shall be read accordingly.
Restrictions on legal estates and interests.
11.— (1) The only legal estates in land which may be created or disposed of are the freehold and leasehold estates specified by this section.
(2) For the purposes of subsection (1), a “freehold estate” means a fee simple in possession and includes—
(a) a determinable fee,
(b) a fee simple subject to a right of entry or of re-entry,
(c) a fee simple subject only to—
(i) a power of revocation,
(ii) an annuity or other payment of capital or income for the advancement, maintenance or other benefit of any person, or
(iii) a right of residence which is not an exclusive right over the whole land.
(3) For the purposes of subsection (1), a “leasehold estate” means, subject to sections 12 and 14, the estate which arises when a tenancy is created for any period of time or any recurring period and irrespective of whether or not the estate—
(a) takes effect in immediate possession or in future, or
(b) is subject to another legal estate or interest, or
(c) is for a term which is uncertain or liable to termination by notice, re-entry or operation of law or by virtue of a provision for cessor on redemption or for any other reason.
(4) The only legal interests in land which may be created or disposed of are—
(a) an easement,
(b) a freehold covenant,
(c) an incumbrance,
(d) a rent payable under a tenancy,
(e) a possibility of reverter,
(f) a profit à prendre, including a mining right,
(g) a public or customary right,
(h) a rentcharge,
(i) a right of entry or of re-entry attached to a legal estate,
(j) a wayleave or other right to lay cables, pipes, wires or other conduits,
(k) any other legal interest created by any statutory provision.
(5) A legal estate or legal interest under this section has, subject to this Act, the same attributes as the corresponding legal estates and interests existing at the commencement of this Part and may exist concurrently with, or subject to, any other legal estate or interest in the same land.
(6) Subject to this Act, estates and interests other than those referred to in subsections (1) to (4) take effect as equitable interests only, but this does not prevent the creation of the estates and interests referred to in those subsections as equitable interests.
(7) Nothing in this Act affects judicial recognition of equitable interests.
(8) Subject to this Act, a power of attorney, power of appointment or other power to dispose of a legal estate or interest in land operates with the same force and effect as such powers had before the commencement of this Part.
(9) All estates and interests in land, whether legal or equitable, may be disposed of.
Prohibition of fee farm grants.
12.— (1) The creation of a fee farm grant at law or in equity is prohibited.
(2) Any instrument executed after the commencement of this Part purporting to—
(a) create a fee farm grant, or
(b) grant a lease for life or lives renewable for ever or for any period which is perpetually renewable,
vests in the purported grantee or lessee a legal fee simple or, as the case may be, an equitable fee simple and any contract for such a grant entered into after such commencement operates as a contract for such a vesting.
(3) A fee simple which vests under subsection (2) is freed and discharged from any covenant or other provision relating to rent, but all other covenants or provisions continue in force so far as consistent with the nature of a fee simple.
(4) Subsection (2) does not apply to any contract or instrument giving effect to a contract entered into before the commencement of this Part.
(5) Notwithstanding section 11(2), any fee simple held under a fee farm grant existing at law at the commencement of this Part continues as a legal estate and may be disposed of.
(6) Notwithstanding section 11(4), any fee farm rent existing at law at the commencement of this Part continues as a legal interest and may be disposed of.
Future Interests
Operation of future interests in land.
15.— (1) Subject to subsection (2), all future interests in land, whether vested or contingent, exist in equity only.
(2) Subsection (1) does not apply to—
(a) a possibility of reverter, or
(b) a right of entry or of re-entry attached to a legal estate.
Abolition of various rules.
16.— Subject to section 17, the following rules are abolished:
(a) the rules known as the common law contingent remainder rules;
(b) the rule known as the Rule in Purefoy v. Rogers;
(c) the rule known as the Rule in Whitby v. Mitchell (also known as the old rule against perpetuities and the rule against double possibilities);
(d) the rule against perpetuities;
(e) the rule against accumulations.
Scope of section 16.
17.—Section 16 applies to any interest in property whenever created but does not apply if, before the commencement of this Part, in reliance on such an interest being invalid by virtue of the application of any of the rules abolished by that section—
(a) the property has been distributed or otherwise dealt with, or
(b) any person has done or omitted to do any thing which renders the position of that or any other person materially altered to that person’s detriment after the commencement of this Part.
PART 4
Trusts of Land
Trusts of land.
18.— (1) Subject to this Part, where land is—
[[SLA 1882, ss. 2, 59, 60]
(a) for the time being limited by an instrument, whenever executed, to persons by way of succession without the interposition of a trust (in this Part referred to as a “strict settlement”), or
(b) held, either with or without other property, on a trust whenever it arises and of whatever kind, or
(c) vested, whether before or after the commencement of this Part, in a minor,
there is a trust of land for the purposes of this Part.
(2) For the purposes of—
(a) subsection (1)(a), a strict settlement exists where an estate or interest in reversion or remainder is not disposed of and reverts to the settlor or the testator’s successors in title, but does not exist where a person owns a fee simple in possession,
(b) subsection (1)(b), a trust includes an express, implied, resulting, constructive and bare trust and a trust for sale.
(3) Subject to this Part, a trust of land is governed by the general law of trusts.
(4) Conversion of a life estate into an equitable interest only does not affect a life owner’s liability for waste.
[LEA 1695]
(5) Where, by reason of absence from the State or otherwise, it remains uncertain for a period of at least 7 years as to whether a person upon whose life an estate or interest depends is alive, it shall continue to be presumed that the person is dead.
(6) If such presumption is applied to a person but subsequently rebutted by proof to the contrary, that person may bring an action for damages or another remedy for any loss suffered.
(7) In dealing with an action under subsection (6), the court may make such order as appears to it to be just and equitable in the circumstances of the case.
(8) Any party to a conveyance shall, unless the contrary is proved, be presumed to have attained full age at the date of the conveyance.
(9) This Part does not apply to land held directly for a charitable purpose and not by way of a remainder.
Trustees of land.
19.— (1) The following persons are the trustees of a trust of land—
[SLA 1882, ss. 38, 39]
(a) in the case of a strict settlement, where it—
(i) exists at the commencement of this Part, the tenant for life within the meaning of the Settled Land Act 1882 together with any trustees of the settlement for the purposes of that Act,
(ii) is purported to be created after the commencement of this Part, the persons who would fall within paragraph (b) if the instrument creating it were deemed to be an instrument creating a trust of land,
(b) in the case of a trust of land created expressly—
(i) any trustee nominated by the trust instrument, but, if there is no such person, then,
(ii) any person on whom the trust instrument confers a present or future power of sale of the land, or power of consent to or approval of the exercise of such a power of sale, but, if there is no such person, then,
(iii) any person who, under either the trust instrument or the general law of trusts, has power to appoint a trustee of the land, but, if there is no such person, then,
(iv) the settlor or, in the case of a trust created by will, the testator’s personal representative or representatives,
(c) in the case of land vested in a minor before the commencement of this Part or purporting so to vest after such commencement, the persons who would fall within paragraph (b) if the instrument vesting the land were deemed to be an instrument creating a trust of land,
(d) in the case of land the subject of an implied, resulting, constructive or bare trust, the person in whom the legal title to the land is vested.
(2) For the purposes of—
(a) subsection (1)(a)(ii) and (1)(c), the references in subsection (1)(b) to “trustee” and “trustee of the land” include a trustee of the settlement,
(b) subsection (1)(b)(iii) a power to appoint a trustee includes a power to appoint where no previous appointment has been made.
(3) Nothing in this section affects the right of any person to obtain an order of the court appointing a trustee of land or vesting land in a person as trustee.
Powers of trustees of land.
20.— (1) Subject to—
(a) the duties of a trustee, and
(b) any restrictions imposed by any statutory provision (including this Act) or the general law of trusts or by any instrument or court order relating to the land,
a trustee of land has the full power of an owner to convey or otherwise deal with it.
(2) The power of a trustee under subsection (1) includes the power to—
(a) permit a beneficiary to occupy or otherwise use the land on such terms as the trustee thinks fit,
(b) sell the land and to re-invest the proceeds, in whole or in part, in the purchase of land, whether or not situated in the State, for such occupation or use.
Overreaching for protection of purchasers.
21.— (1) Subject to subsection (3), a conveyance to a purchaser of a legal estate or legal interest in land by the person or persons specified in subsection (2) overreaches any equitable interest in the land so that it ceases to affect that estate or interest, whether or not the purchaser has notice of the equitable interest.
(2) For the purposes of subsection (1), the “person or persons specified”—
(a) shall be at least two trustees or a trust corporation where the trust land comprises—
(i) a strict settlement, or
(ii) a trust, including a trust for sale, of land held for persons by way of succession, or
(iii) land vested in or held on trust for a minor,
(b) may be a single trustee or owner of the legal estate or interest in the case of any other trust of land.
(3) Subsection (1) does not apply to—
(a) any conveyance made for fraudulent purposes of which the purchaser has actual knowledge at the date of the conveyance or to which the purchaser is a party, or
(b) any equitable interest—
(i) to which the conveyance is expressly made subject, or
(ii) protected by deposit of documents of title relating to the legal estate or legal interest, or
(iii) in the case of a trust coming within subsection (2)(b), protected by registration prior to the date of the conveyance or taking effect as a burden coming within section 72(1)(j) of the Act of 1964 (or, in the case of unregistered land, which would take effect as such a burden if the land were registered land).
(4) In subsection (3)(b)(iii), “registration” means registration in the Registry of Deeds or Land Registry, as appropriate.
(5) Where an equitable interest is overreached under this section it attaches to the proceeds arising from the conveyance and effect shall be given to it accordingly.
(6) Nothing in this section affects the operation of the Act of 1976.
Resolution of disputes.
22.— (1) Any person having an interest in a trust of land, or a person acting on behalf of such a person, may apply to the court in a summary manner for an order to resolve a dispute between the—
(a) trustees themselves, or
(b) beneficiaries themselves, or
(c) trustees and beneficiaries, or
(d) trustees or beneficiaries and other persons interested,
in relation to any matter concerning the—
(i) performance of their functions by the trustees, or
(ii) nature or extent of any beneficial or other interest in the land, or
(iii) other operation of the trust.
(2) Subject to subsection (3), in determining an application under subsection (1) the court may make whatever order and direct whatever inquiries it thinks fit in the circumstances of the case.
(3) In considering an application under subsection (1)(i) and (iii) the court shall have regard to the interests of the beneficiaries as a whole and, subject to these, to—
(a) the purposes which the trust of land is intended to achieve,
(b) the interests of any minor or other beneficiary subject to any incapacity,
(c) the interests of any secured creditor of any beneficiary,
(d) any other matter which the court considers relevant.
(4) In subsection (1), “person having an interest” includes a mortgagee or other secured creditor, a judgment mortgagee or a trustee.
(5) Nothing in this section affects the jurisdiction of the court under section 36 of the Act of 1995.
PART 5
Variation of Trusts
Interpretation of Part 5.
23.— In this Part—
“appropriate person”, in relation to a relevant trust, means—
(a) a trustee of, or a beneficiary under, the trust, or
(b) any other person that the court, to which the application concerned under section 24 is made, considers appropriate;
“arrangement”, in relation to a relevant trust, means an arrangement—
(a) varying, revoking or resettling the trust, or
(b) varying, enlarging, adding to or restricting the powers of the trustees under the trust to manage or administer the property the subject of the trust;
“relevant person”, in relation to a relevant trust, means—
(a) a person who has a vested or contingent interest under the trust but who is incapable of assenting to an arrangement by reason of lack of capacity (whether by reason of minority or absence of mental capacity),
(b) an unborn person,
(c) a person whose identity, existence or whereabouts cannot be established by taking reasonable measures, or
(d) a person who has a contingent interest under the trust but who does not fall within paragraph (a);
“relevant trust”—
(a) subject to paragraph (b), means a trust arising, whether before, on or after the commencement of this section, under a will, settlement or other disposition,
(b) does not include—
(i) a trust created for a charitable purpose within the meaning of the Charities Acts 1961 and 1973 and the Charities Act 2009,
(ii) an occupational pension scheme within the meaning of the Pensions Act 1990 established under a trust,
(iii) a trust created by a British statute,
(iv) a trust created by a Saorstát Éireann statute, or
(v) a trust created by an Act of the Oireachtas, whether passed before, on or after the commencement of this section.
Jurisdiction of court to vary, etc., trusts.
24.— (1) An appropriate person may make, in respect of a relevant trust, an application to the court for an order to approve an arrangement specified in the application for the benefit of a relevant person specified in the application if the arrangement has been assented to in writing by each other person (if any) who—
(a) is not a relevant person,
(b) is beneficially interested in the trust, and
(c) is capable of assenting to the arrangement.
(2) The court shall not hear an application made to it under subsection (1) in respect of a relevant trust unless it is satisfied that the applicant has given notice in writing of the application—
(a) to the Revenue Commissioners, and
(b) to such persons as may be prescribed by rules of court,
at least 2 weeks before the hearing of the application.
(3) The court may hear an application made to it under subsection (1) otherwise than in public if it considers that it is appropriate to do so.
(4) The court shall determine an application made to it under subsection (1) in respect of a relevant trust—
(a) subject to paragraph (b), by making an order approving the arrangement specified in the application if it is satisfied that the carrying out of the arrangement would be for the benefit of—
(i) the relevant person specified in the application, and
(ii) any other relevant person,
(b) by refusing to make such an order in any case where—
(i) the court is not satisfied as referred to in paragraph (a), or
(ii) the Revenue Commissioners have satisfied the court that the application is substantially motivated by a desire to avoid, or reduce the incidence of, tax.
(5) In determining under subsection (4) whether an arrangement would be for the benefit of a relevant person, the court may have regard to any benefit or detriment, financial or otherwise, that may accrue to that person directly or indirectly in consequence of the arrangement.
(6) Nothing in this section shall be construed as derogating from or affecting the operation of—
(a) the Charities Acts 1961 and 1973 and the Charities Act 2009,
(b) any power of a court, whether under an enactment or rule of law, to—
(i) vary, revoke or resettle a trust (including a relevant trust), or
(ii) vary, enlarge, add to or restrict the powers of the trustees under a trust (including a relevant trust) to manage or administer the property the subject of the trust,
or
(c) any rule of law relating to the termination or revocation of a trust (including a relevant trust).
Registration of Title Act 1964
Notice of trusts.
92.—(1) Subject to the provisions of this Act, notice of a trust shall not be entered in the register.
(2) None of the following persons shall, by reason merely of the receipt by F117[the Authority] of an instrument relating to land for the purpose of a registration, be affected with notice of any trust contained in or arising out of matters contained in such instrument:
(a) F117[the Authority];
(b) a registered transferee for valuable consideration of the land;
(c) a registered owner of a charge created for valuable consideration on the land;
(d) a person claiming an interest created for valuable consideration in a registered burden on the land.
(3) In this section “trust” includes express, implied and constructive trusts.
Annotations:
Amendments:
F117
Substituted (4.11.2006) by Registration of Deeds and Title Act 2006 (12/2006), s. 4(2), S.I. No. 511 of 2006.
Discovery of instruments and facts affecting title.
93.—(1) Where—
(a) an application is made for the registration of the owner of any land in respect of which an examination of title is required, or
(b) F118[the Authority] has occasion, in the course of F119[its] duties, to investigate the title to registered land or to a burden on registered land,
an affidavit shall be produced to the effect that, to the best of the deponent’s knowledge and belief, all deeds, wills, instruments of title and incumbrances affecting the title, and all facts material to the title, have been disclosed to F118[the Authority].
(2) F118[The Authority] may require any person making an affidavit in pursuance of this section to state in the affidavit what means he has had of becoming acquainted with the several matters referred to in the section; and if F118[the Authority] is of opinion that any further evidence is necessary or desirable, F119[it] may refuse to effect the registration, or to make or cancel any entry in the register, until such further evidence is produced.
Annotations:
Amendments:
F118
Substituted (4.11.2006) by Registration of Deeds and Title Act 2006 (12/2006), s. 4(2), S.I. No. 511 of 2006.
F119
Substituted (4.11.2006) by Registration of Deeds and Title Act 2006 (12/2006), s. 4(3), S.I. No. 511 of 2006.
Production of deeds.
94.—Where—
(a) an application is made for the registration of an owner of land, or
(b) F120[the Authority] has occasion, in the course of F121[its] duties, to investigate the title to registered land or to a burden on registered land,
if any person has in his possession or custody any deeds, wills or instruments affecting the title, to the production of which the applicant or any trustee for him is entitled or the production of which F120[the Authority] considers, on any such occasion, to be necessary for the purpose of such investigation, F120[the Authority] may require that person to show cause, within a time limited, why he should not produce such deeds, wills, or instruments, or any of them; and, unless cause is shown to the satisfaction of F120[the Authority] within the time limited, F121[it] may order that the deeds, wills or instruments, or any of them shall be produced at the expense of the applicant, at such time and place, and in such manner, and on such terms as F121[it] thinks fit.
Annotations:
Amendments:
F120
Substituted (4.11.2006) by Registration of Deeds and Title Act 2006 (12/2006), s. 4(2), S.I. No. 511 of 2006.
F121
Substituted (4.11.2006) by Registration of Deeds and Title Act 2006 (12/2006), s. 4(3), S.I. No. 511 of 2006.
Deeds to be marked with notice of registration.
95.—Subject to general rules, F122[the Authority] may, if F123[it] thinks fit, before registering a person as owner of land, require him to produce such documents of title as will in the opinion of F122[the Authority], when stamped or otherwise marked, give notice to any purchaser or other person dealing with the land of the fact of the registration, or otherwise to satisfy F122[the Authority] that the fact of the registration cannot be concealed from a purchaser or other person dealing with the land, and may stamp or otherwise mark any documents so produced.
Annotations:
Amendments:
F122
Substituted (4.11.2006) by Registration of Deeds and Title Act 2006 (12/2006), s. 4(2), S.I. No. 511 of 2006.
F123
Substituted (4.11.2006) by Registration of Deeds and Title Act 2006 (12/2006), s. 4(3), S.I. No. 511 of 2006.
Cautions and Inhibitions
Caution against first registration of land.
96.—(1) Any person claiming such an interest in unregistered land as entitles him to object to a disposition thereof being made without his consent, or claiming to be an incumbrancer on unregistered land, may, if claiming otherwise than under an instrument registered in the Registry of Deeds, on producing an affidavit in the prescribed form of his interest, lodge a caution with F124[the Authority] to the effect that the cautioner is entitled to notice of any application that may be made for registration of an owner of the land.
(2) Thereupon, an owner of the land shall not be registered until notice has been served on the cautioner to appear and oppose, if he thinks fit, the registration, and the prescribed time has elapsed since the date of the service of the notice, or the cautioner has entered an appearance, whichever first happens.
(3) If any person lodges a caution under this section without reasonable cause, he shall be liable to make compensation, recoverable as a simple contract debt, to any person damaged thereby.
Annotations:
Amendments:
F124
Substituted (4.11.2006) by Registration of Deeds and Title Act 2006 (12/2006), s. 4(2), S.I. No. 511 of 2006.
Modifications (not altering text):
C33
Application of section restricted (1.03.1978) by Agricultural Credit Act 1978 (2/1978), ss. 43(2) and 46, S.I. No. 49 of 1978.
Lodgement of cautions by the Corporation.
43.—(1) Any person claiming to be entitled to an estate or interest in or incumbrance on or claim against any unregistered land which is a puisne claim against the land or would become a puisne claim if a priority charge were created on the land, may (whether the instrument, if any, under which the claim arises is or is not registered in the Registry of Deeds) lodge under section 96 of the Act of 1964 a caution against the registration against the land, on or after the first registration thereof, of any dealing with the land in favour of the Corporation to the prejudice of the claim.
(2) Where a caution is so lodged, subsection (2) of the said section 96 shall not apply to the caution but in lieu thereof the caution shall, on the first registration of the land, be entered on the folio relating to the land as a caution lodged under section 97 of the Act of 1964 and shall have effect accordingly.
…
Lodgement of cautions by the Corporation.
46.—Whenever the Corporation claims to be an incumbrancer on unregistered land by virtue of an instrument registered in the Registry of Deeds, the Corporation may, notwithstanding anything to the contrary in section 96 of the Act of 1964, lodge with the registering authority a caution under that section, and when the caution is so registered the registering authority may, on the first registration of the land, register the incumbrance created by the instrument as a burden affecting the land with such priority (if any) as is given to the incumbrance by this Act or otherwise by law.
Caution against registered dealings.
97.—(1) Any person entitled to any right in, to, or over registered land or a registered charge, may, on producing an affidavit in the prescribed form of his right, lodge a caution with F125[the Authority] to the effect that no dealing with the land or charge is to be had on the part of the registered owner until notice has been served on the cautioner.
(2) Thereupon F125[the Authority] shall not, without the consent of the cautioner, register any dealing with the land or charge, as the case may be, until F126[it] has served notice on the cautioner, warning him that his caution will lapse after the expiration of the prescribed time.
(3) After the expiration of that time, the caution shall lapse unless an order to the contrary is made by F125[the Authority] and on the caution so lapsing the land or charge may be dealt with as if the caution had not been lodged.
(4) If, before the expiration of that time, the cautioner, or some other person on his behalf, appears and gives, if required by F125[the Authority], sufficient security to indemnify every person against any damage that may be sustained by reason of any dealing with the land or charge being delayed, F125[the Authority] may, if F126[it] thinks fit, delay registering any dealing with the land or charge for such further period as F126[it] thinks just.
(5) If any person lodges a caution under this section without reasonable cause, he shall be liable to make compensation, recoverable as a simple contract debt, to any person damaged thereby.
(6) In the case of a caution lodged on behalf of a statutory authority, a certificate in the prescribed form may be accepted, at the discretion of F125[the Authority], in lieu of an affidavit.
Annotations:
Amendments:
F125
Substituted (4.11.2006) by Registration of Deeds and Title Act 2006 (12/2006), s. 4(2), S.I. No. 511 of 2006.
F126
Substituted (4.11.2006) by Registration of Deeds and Title Act 2006 (12/2006), s. 4(3), S.I. No. 511 of 2006.
Inhibition of registered dealings.
98.—(1) The court or, subject to an appeal to the court, F127[the Authority], on the application of any person interested in any registered land or charge, may, after directing such inquiries (if any) to be made and notices to be given and hearing such persons as the court or F127[the Authority] thinks expedient, make an order or, in the case of an application to F127[the Authority], an entry, inhibiting for a time, or until the occurrence of an event to be named in the order or entry, or except with the consent of or after notice to some specified person, or generally until further order or entry, any dealing with any registered land or registered charge.
(2) F127[The Authority], on the application of the person who has obtained an order of the court under the provisions of this section, shall make an entry of the order on the register in the prescribed manner.
(3) The court or F127[the Authority] may annex to any such order or entry any terms or conditions they think fit, and may discharge any such order or cancel any such entry, and generally may exercise such powers as the justice of the case requires; but nothing herein contained shall empower F127[the Authority] to discharge an order made by the court.
(4)(a)F128[…]
(b) Any entry made under this section may be withdrawn or modified at the instance of all the persons for the time being appearing by the register to be interested therein.
Annotations:
Amendments:
F127
Substituted (4.11.2006) by Registration of Deeds and Title Act 2006 (12/2006), s. 4(2), S.I. No. 511 of 2006.
F128
Repealed (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 8(3) and sch. 2 part 5, S.I. No. 356 of 2009.
Settled Land
Provisions as to limited owners.
99.—F129[…]
Annotations:
Amendments:
F129
Repealed (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 8(3) and sch. 2 part 5, S.I. No. 356 of 2009.
Trustees
Power for trustee to apply to court for directions.
100.—(1) Where a trustee or other person acting in a fiduciary capacity is in doubt as to F130[any] matter with respect to which he is required or authorised to act under this Act, he may apply to the court for directions.
(2) The costs, charges and expenses properly incurred by a trustee or other person acting in a fiduciary capacity F131[…] in or in connection with any proceeding or application required or authorised by this Act, or by any rules under this Act, shall be deemed to be costs, charges, and expenses properly incurred by him in the execution of his trust or duty, and may, in the case of a proceeding before, or an application to, F132[the Authority] be finally ascertained and declared by F132[the Authority].
Annotations:
Amendments:
F130
Substituted (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 8(1) and sch. 1, S.I. No. 356 of 2009.
F131
Deleted (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 8(1) and sch. 1, S.I. No. 356 of 2009.
F132
Substituted (4.11.2006) by Registration of Deeds and Title Act 2006 (12/2006), s. 4(2), S.I. No. 511 of 2006.
Cases
McGill v. S.
[1979] IR 285
Gannon J. 284
When the plaintiff and defendant first met in the year 1963 they were living in Munich where they were each employed in different American-operated Central European radio stations. The plaintiff was then living with his wife and his seven-year-old daughter. The defendant, who is an American citizen, was separated from her husband from whom she was divorced in 1964. The plaintiff left his wife and daughter in 1964 and made his home in the defendant’s apartment in Munich until 1973, when his wife and daughter went to Australia. The plaintiff and the defendant spent holidays together in Ireland and on one of these, in 1967, the plaintiff purchased a house on 2 roods 25 perches of land in the townland of Leamcon in the barony of Carbery West. That property is comprised in folio 55796 of the register of freeholders for the county of Cork, and the plaintiff became the registered owner of the property on the 4th November, 1968. This property is the subject matter of an ejectment civil bill on title which was issued in the Circuit Court in Cork and was served on the defendant on the 2nd November, 1977.
In her defence to the claim the defendant disputes the plaintiff’s right to recover possession of the property, and she does so on grounds which include the following:” “5. Further the defendant claims to be entitled to possession of the said premises as beneficial owner jointly with the plaintiff in the following circumstances namely”before and at the time that the said premises were acquired by the plaintiff in 1967 it was the common intention of the plaintiff and the defendant that the said premises should be acquired for the mutual benefit of both the plaintiff and the defendant and that the plaintiff and the defendant should be entitled jointly to the beneficial interest therein, and the defendant in the years between 1967 and 1973 provided for and made money available to the plaintiff out of her income and thereby enabled the plaintiff to spend money on and preserve keep maintain and improve the said premises out of his income, and further in the year 1973 the defendant gave up her then employment in order to and in the years since 1973 did use and occupy the said premises and preserve keep maintain and improve the same, and further in the said years since 1973 has spent money on the said premises. 6. Further or in the alternative the defendant pleads that the plaintiff is estopped from claiming that the defendant is not entitled to possession of the said premises by reason of the matters set out at paragraph 5 herein and further by reason of the fact that the plaintiff, prior to the defendant’s giving up her said employment, represented to the defendant that the defendant would not have to give up or leave the said premises and might continue to use and occupy the same as her home, in reliance on which the defendant so left her employment and Germany where she was then living and took up possession of the said premises.”
In her counterclaim the defendant asks for a declaration that the plaintiff holds the said premises in trust for the benefit of the plaintiff and the defendant jointly or, alternatively, in such manner as to the Court may seem fit. Following the hearing in the Circuit Court on the 18th October, 1978, the Circuit Court judge granted the plaintiff an order for possession but made no order on the counterclaim. The defendant appealed to the High Court from that order and, with the leave of the Court, amended her defence by the addition of the following further paragraph:” “7. Further or in the alternative the defendant claims that, in consideration for the defendant’s agreeing to give up her said employment to move to Ireland and to preserve keep maintain and improve the said premises, the plaintiff agreed to give the defendant leave or licence to have accommodation in the said premises to use or occupy the same as a home and to remain in possession of the same for so long as the defendant might wish or require. The said leave or licence is coupled with an interest and is irrevocable by the plaintiff and the plaintiff is not entitled to recover possession as alleged.”
The defendant also obtained leave to amend her counterclaim by the addition of the following further paragraphs:” “4. An injunction to restrain the plaintiff from determining or terminating the said licence referred to at paragraph 7. 5. £2,000 damages for breach of contract.”
Upon the hearing of the appeal, the formal proofs in support of the plaintiff’s claim were admitted and the defendant gave evidence in support of the affirmative assertions in her defence and counterclaim. The plaintiff gave evidence in reply. The facts which were disclosed were that the plaintiff and the defendant commenced to live together as though husband and wife in her flat in Munich in 1964 and in Ireland on holidays until his employment took him to America towards the end of 1973. As the defendant’s marriage had been lawfully dissolved she was free to marry, but the plaintiff could not or would not seek a dissolution of his marriage. Nevertheless it was their intention to live with each other for the rest of their lives. The defendant’s flat was provided for her by her employers but she had to pay any expenses in connection with it and all her housekeeping costs and the cost of running her car. He used to take her out for meals frequently but all meals in the flat were provided by her. In 1965 they came to Ireland on holiday and talked about getting a holiday house in Ireland. In 1966 they came to Ireland on holiday and decided to look for a house in Ireland.
When on holiday together in Ireland in 1967, they came upon the house at Leamcon and he decided he would like to buy the house and she approved. It was then a deserted house in bad condition on a good site and he bought it for £1,775. She took no part in the negotiations in which he was engaged with the owner. He provided the entire purchase money. The legal requirements for effective transfer of ownership were not completed until November, 1968”perhaps because it was necessary to get consent for sub-division, a new folio, and a land certificate. There was no provision made in that transaction to give her any legal estate or interest in the property nor was this aspect discussed. She believed then that it was a purchase by him of a permanent home for both of them although it had originated with the idea three years earlier of getting a place in Ireland for holidays. They spent their 1968 holidays together camping on the site and working at cleaning, restoring and repairing the premises and in getting water and electricity supplied. This was also the pattern of their joint holidays for the next few years and they moved furniture into the house from the defendant’s flat in Munich. The total cost over the entire period for the work of renovation, repairs, decoration and so forth came to £9,750 of which the entire was paid by the plaintiff. For her part the defendant did a considerable amount of work mostly in the nature of cleaning, decoration and supervising tradesmen; she spent £1,000 of her own money on out-buildings which she said was by way of a present for him.
About the year 1968 the defendant had become friendly with a girl from England to whom she lent half the capital required by this friend in order to purchase a house, which is near Ballydehob in the county of Cork. The transfer of that property was effected in 1971 to the joint ownership of the defendant and her friend.
By 1973 American interest in radio broadcasting in Central Europe was diminishing and the defendant found that, if she were to remain with the company by whom she was employed in Munich, she would be required to transfer to America; this, she felt, would make impossible her continued association with the plaintiff and with the house at Leamcon. After discussions with the plaintiff, the defendant decided to give up her employment and the Munich flat, to live in Leamcon and to avail of a shipping allowance to move furniture from Munich to Leamcon. She received 30,000 D.M. which she invested in America with a view to providing herself with a subsistence income but her investment, through no fault of hers, became a total loss. She found herself reduced in income from £500 per month approximately to about £50 per month. Towards the end of 1973 the plaintiff had to go to America for a period of three months. It was about this time that the Watergate affair began to stir the news world and, as a journalist, he became involved in that area of news and his stay in America was extended. During 1974 the plaintiff became interested in another lady in America and disinterested in the defendant; correspondence between them ceased and their relationship came to an end.
On these facts Mr. Peart, on behalf of the defendant, submits that the property claimed by the plaintiff was purchased by him to be a permanent home for both of them in ultimate retirement and that he so represented to the defendant who, in consequence, changed her whole circumstances to her detriment in the belief that she had an interest to the extent of an undefined share in the property with a licence under an implied contract to allow her to have the use and occupation of it for as long as she wished. It is his submission that the Court should declare the plaintiff to be a trustee (upon a constructive or implied trust) for the defendant of a share or interest proportionate to her contribution, whether direct or indirect, towards the acquisition and improvement and maintenance of the property to the extent of the value it now has. He further claims that her licence to have possession has not been terminated lawfully and that it cannot be terminated without her consent or without making alternative provision, and that she should be compensated in damages for breach of the implied contract creating the licence for possession.
In support of his submission Mr. Peart relies upon the decision of the Court of Appeal in England in Tanner v. Tanner 1 and upon the judgments of Mr. Justice Kenny in Heavey v. Heavey 2 and in C. v. C. 3 The two Irish cases were concerned with claims by wives against their husbands under s. 12 of the Married Women’s Status Act, 1957, which is the modern substitute of s. 17 of the Married Women’s Property Act, 1882, which was repealed by the Act of 1957 but is still invoked in England and Northern Ireland. Since the parties in this case are not married to each other, the defendant may find it necessary to call in aid the following extract from the judgment of Sir Robert Lowry (as he then was) in McFarlane v. McFarlane 4 at p. 78 of the report:”
“In my opinion the recent cases in the House of Lords clearly show that the rights acquired by a wife in property which at law belongs to her husband depend not on her deserts as a wife but on legal principles which are equally applicable between strangers: a direct contribution to the purchase price will, in the absence of a contrary intention, attract an equitable interest; an indirect contribution accompanied by an agreement will, and unaccompanied by an agreement will not, give the contributor an equitable interest. Two modifications apply between spouses, first that an arrangement is as good as an agreement, and second that the doctrine of advancement may operate against a husband contributor.”
This concise but clear statement of legal principle demonstrates that, in the case of two persons who are not spouses, evidence of a consensus derived from words or conduct and intended to have legal consequences would support a trust expressed or implied or constructive. But whether the party having the legal estate and the party claiming an equitable interest be spouses or not, the Court will not impute a relationship of trustee and cestui que trust from the facts of a couple living together in (or seemingly in) the married state and sharing expenses without any more cogent evidence. I do not think that Mr. Justice Kenny intended to indicate anything short of this in the two judgments from which extracts were quoted in support of the defendant’s counterclaim.
From the judgment in Heavey v. Heavey 2 Mr. Peart quoted the following passage from pp. 3-4 of the report:” “It seems to me that it is unreal to approach the question of the ownership of or claims for shares in or reimbursement of expenditure on property as between husband and wife when each has made contributions to its purchase or improvement by trying to ascertain what the agreement between them was or what agreement can be implied from their behaviour. Husband and wife do not contemplate disputes or the break up of their marriage when they are getting married or when they are living happily together and the arrangements about domestic expenditure and their dealings in property are very informal and are not the result of negotiations between them which result in legal agreements. I am fortified in this conclusion by the judgments of the Lord Chief Justice of Northern Ireland, Lord Mac Dermott, and of Mr. Justice Lowry (as he then was) in McFarlane v. McFarlane 4 , from which I have got considerable assistance. When there is an express agreement, the Courts must give effect to it but, in the absence of a proved contract, I think that the question whether a husband has a claim for improvements carried out to his wife’s property should be solved by the application of the flexible concept of a resulting or constructive trust (see the speech of Lord Pearson in Gissing v.Gissing. 5 ) When his concept is adopted, the guiding principle is that stated by Lord Diplock in the same case: ‘A resulting, implied or constructive trust”and it is unnecessary for present purposes to distinguish between these three classes of trust”is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conduct he had induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land’.”
The following extract from the judgment delivered by Mr. Justice Kenny in C. v. C. 3 was cited from pp. 257-8 of the report:” “When the matrimonial home is purchased in the name of a husband, either before or after a marriage, the wife does not become entitled, as wife, to any share in its ownership either because she occupies the status of wife or because she carries out household duties. In many cases, however, the wife contributes to the purchase price or mortgage instalments. Her contributions may be either by payment to the husband of moneys which she has inherited or earned, or by paying the expenses of the household so that he has the money which makes it possible for him to pay the mortgage instalments. Domestic arrangements in relation to the payment of debts or the sharing of expenses are almost always informal and the parties do not make agreements which have that precision which is necessary to make them enforceable as contracts in a court of law. When there is an agreement between them as to the ownership of the house which is in the husband’s name only, the Court will enforce it; but the number of cases in which this happens is small. The principles derived from the last century (when married women did not earn and when any property they had was usually settled) are of little assistance in determining the ownership of the matrimonial home when the wife has made contributions towards its purchase or towards the repayment of the mortgage instalments. Trying to infer what was the implied agreement which arose when payments were made or expenses paid by a wife is a futile task because, when the spouses are living happily together, they do not think of stipulating that payments by one of them are made to acquire a share in the matrimonial home or furniture. I think that the correct and most useful approach to these difficult cases is to apply the concept of a trust to the legal relationship which arises when a wife makes payments towards the purchase of a house, or the repayment of the mortgage instalments, when the house is in the sole name of the husband. When this is done, he becomes a trustee for her of a share in the house and the size of the share depends upon the amount of the contributions which she has made towards the purchase or the repayment of the mortgage.
I think that this view is supported by the decisions in Pettitt v. Pettitt 6 ; Gissingv. Gissing 5 ; McFarlane v. McFarlane 4 ; Hazell v. Hazell 9 ; Kowalczuk v.Kowalczuk 10 ; Heavey v. Heavey .2 This approach also has the advantage that it gives that flexibility which is essential in dealing with domestic matters.”
As the counter-claiming defendant is not a spouse but claims to be a cestui que trust by virtue of indirect contributions in circumstances of a close domestic relationship corresponding to that between spouses, I think it necessary to point out that indirect contributions which are unrelated to the acquisition of the property cannot found an equitable interest in it. I think it would be useful and appropriate to cite the following further extract from the speech of Lord Pearson in Gissing v. Gissing 5 at p. 909 of the report:”
“Difficult as they are to solve, however, these problems as to the amount of the share of a spouse in the beneficial interest in a matrimonial home where the legal estate is vested solely in the other spouse, only arise in cases where the court is satisfied by the words or conduct of the parties that it was their common intention that the beneficial interest was not to belong solely to the spouse in whom the legal estate was vested but was to be shared between them in some proportion or other. Where the wife has made no initial contribution to the cash deposit and legal charges and no direct contribution to the mortgage instalments nor any adjustment to her contribution to other expenses of the household which it can be inferred was referable to the acquisition of the house, there is in the absence of evidence of an express agreement between the parties no material to justify the court in inferring that it was the common intention of the parties that she should have any beneficial interest in a matrimonial home conveyed into the sole name of the husband, merely because she continued to contribute out of her own earnings or private income to other expenses of the household. For such conduct is no less consistent with a common intention to share the day-to-day expenses of the household, while each spouse retains a separate interest in capital assets acquired with their own moneys or obtained by inheritance or gift.”
In this appeal the evidence of the defendant in support of her claim falls far short of what is required to enable the Court to hold, by the implication of a trust for her benefit, that she has acquired any beneficial interest in the property which is the subject of the claim. In spite of having the means and the opportunity, she took no part in the negotiations and contributed no amount of the purchase price for the acquisition of the property of which the plaintiff is sole owner. Such as were her indirect contributions all came after the acquisition of the property had been completed (without continuing instalment payments) and did not bear any significant relationship whatever to either the capital sum of £1,775 or to the sum of £9,750 spent by the plaintiff.
The decision in Tanner v. Tanner 1 has been cited in support of the contentions that the defendant has a licence to retain possession of the property, that the licence has not been revoked, and that it cannot be revoked as it is coupled with an interest. In that case the parties were not married but the defendant (who was in occupation and who opposed the claim for possession by the legal owner) was the mother of the owner’s two children who never had had any other home but that claimed. The evidence in that case in support of the defendant’s counterclaim, as to the indirect contributions of the mother to the acquisition of the premises by instalment payments by the father, was much stronger and clearer than on this appeal but the creation of a trust was rejected and a contract for a licence was implied.
While I have the greatest respect for the learned members of the Court of Appeal, I would not feel bound to adopt their decision in Tanner v. Tanner 1 which does not appear to be expressed as being founded on any clear principle. Lord Denning M.R. says at p. 1350 of the report:” “What was then their legal position? She herself said in evidence: ‘The house was supposed to be ours until the children left school.’ It seems to me that enables an inference to be drawn, namely, that in all the circumstances it is to be implied that she had a licence”a contractual licence”to have accommodation in the house for herself and the children so long as they were of school age and the accommodation was reasonably required for her and the children. There was, it is true, no express contract to that effect, but the circumstances are such that the court should imply a contract by the plaintiff”or, if need be, impose the equivalent of a contract by him”whereby they were entitled to have the use of the house as their home until the girls had finished school. It may be that if circumstances changed”so that the accommodation was not reasonably required”the licence might be determinable.” In the same case Brown L.J. in the course of his judgment said at p. 1351 of the report:” “But I agree that there was here a licence by the plaintiff to the defendant for good consideration: it could not be revoked at will. What has troubled me is what the duration of this licence was to be. With some hesitation I agree with Lord Denning M.R.’s view of what it was to be; that is, in substance it was a licence to the defendant to occupy accommodation in the house so long as the
children were of school age and such accommodation was reasonably required for her and the twins, subject to any relevant change of circumstances, such as her remarriage.”
On the evidence before me on this appeal it is impossible to infer any particular point of time either for the commencement or the termination of the licence claimed. Both parties had been occupying the premises for many years in circumstances of mutual purpose or convenience which would not support a contractual relation of legal import. The concept of a wavering licence terminable not at the will of the grantor but upon the possibility of changeable circumstances affecting the licensee”such as was implied in Tanner v. Tanner 1”is one which I find it difficult to reconcile with the law. On the facts of this case I am satisfied that the defendant was lawfully in occupation of the property which is the subject of the claim with the licence or permission of the plaintiff, but only as a licensee at will. For so long as the domestic and personal relations between the parties remained stable it was unlikely that the licence would be terminated, but the evidence does not support a licence by implied contract which could continue against the will of the plaintiff or even beyond the period of their mutual association. I am satisfied that the defendant’s licence to occupy and have possession of the property was validly and effectively terminated by the institution of these proceedings at the latest. In my view, the defendant has no grounds for a claim to compensation for loss or damages arising out of such termination of the licence.
The defence and counterclaim raise matters which are very much outside the ordinary range of ejectment proceedings in the Circuit Court. These are matters of considerable importance in the area of domestic relations, disputes in relation to which are generally heard in camera and decisions thereon seldom reported. Consequently, it seems to me to be more helpful if, instead of reviewing the facts disclosed in evidence with meticulous detail as did the learned trial judge in Richards v. Dove 7 (where the facts corresponded closely to the facts of this case), I should give greater attention to the principles which are applicable to whatever facts the evidence might disclose. I have in mind also that, even if the facts of this case were as cogent (which they are not) as those in Pascoe v. Turner 11 , which was not cited to me, it would be more appropriate to be guided by the principles in Pettitt v. Pettitt 6 ; Gissing v. Gissing 5 ; and McFarlane v. McFarlane 4 than to follow the decision in Pascoe v. Turner .11
Lest it should seem (from the extracts which I have quoted from the several judgments) that the Courts can or should or will make a determination of law or in equity in favour of a party in the difficult area of domestic relations when sufficient evidence is difficult to obtain, I think I should conclude with the following extract from the speech of Lord Morris of Borth-y-Gest in Pettitt v. Pettitt 6 at p. 804 of the report:”
“The mere fact that parties have made arrangements or conducted their affairs without giving thought to questions as to where ownership of property lay does not mean that ownership was in suspense or did not lie anywhere. There will have been ownership somewhere and a court may have to decide where it lay. In reaching a decision the court does nof find and, indeed, cannot find that there was some thought in the mind of a person which never was there at all. The court must find out exactly what was done or what said and must then reach conclusion as to what was the legal result. The court does not devise or invent a legal result. Nor is the court influenced by the circumstances that those concerned may never have had occasion to ponder or to decide as to the effect in law of whatever were their deliberate actions. Nor is it material that they might not have been able”even after reflection”to state what was the legal outcome of whatever they may have done or said. The court may have to tell them. But when an application is made under section 17 [of the Married Women’s Property Act, 1882] there is no power in the court to make a contract for the parties which they have not themselves made. Nor is there power to decide what the court thinks that the parties would have agreed had they discussed the possible breakdown or ending of their relationship. Nor is there power to decide on some general principle of what seems fair and reasonable how property rights are to be re-allocated. In my view, these powers are not given by section 17.”
These principles apply equally to the task before me. In the circumstances, it is my conclusion that the judgment of the Circuit Court judge was correct. I affirm the order of the Circuit Court and dismiss the appeal.