Overview
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.
Abolition of the fee tail.
13.— (1) The creation of a fee tail of any kind at law or in equity is prohibited.
(2) Any instrument executed after the commencement of this Part purporting to create a fee tail in favour of any person vests in that person a legal fee simple or, as the case may be, an equitable fee simple and any contract for such a creation entered into before or after such commencement operates as a contract for such vesting.
(3) Where—
(a) immediately before the commencement of this Part, a person was entitled to a fee tail at law or in equity, or
(b) after such commencement, a person becomes entitled to such a fee tail,
a legal or, as the case may be, an equitable fee simple vests in that person on such commencement or on that person becoming so entitled provided any protectorship has ended.
(4) In subsection (3)“fee tail” includes—
(a) a base fee provided the protectorship has ended,
(b) a base fee created by failure to enrol the disentailing deed,
but does not include the estate of a tenant in tail after possibility of issue extinct.
(5) A fee simple which vests under subsection (2) or subsection (3) is—
(a) not subject to any estates or interests limited by the instrument creating the fee tail to take effect after the termination of the fee tail,
(b) subject to any estates or interests limited to take effect in defeasance of the fee tail which would be valid if limited to take effect in defeasance of a fee simple.
Prohibition of leases for lives.
14.— The grant of a lease for—
(a) a life or lives,
(b) a life or lives combined with a concurrent or reversionary term of any period,
(c) any term coming to an end on the death of a person or persons,
and any contract for such a grant made after the commencement of this Part is void both at law and in equity.
PART 3
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).