Life Interests
Life Estate
A life estate is an interest or right in land that subsists for the life of the grantee only. A variant is an estate which lasts for the life of a third-party, and which is measured by that life, and a life estate pur autre vie, in the Norman French.
Life estates may subsist only as an equitable interest under an express or deemed trust after the 2009 land law reforms. Prior to the 2009 reforms, a life estate could take effect as a legal interest in itself.
A life estate is a very tenuous interest in that it subsists, only for the life of the grantee. In the case of an estate pur autre vie, the interest is measured by the life of the named third-party. The interest of the life estate holder terminates on the death of the person whose life measures the estate.
The life tenant had power at common law to grant leases. However, these ended on the tenant’s death so they were unsatisfactory from the tenant’s perspective.
Settlements
Life estates were a common feature of landed estates. The landed estate itself was typically “settled” and resettled, generation after generation so that the current owner typically held it for life owned with subsequent interests vested in his children. Widows were commonly granted life estates in their deceased husband’s property with the remainder (future interest) vesting in the eldest son or children of the marriage.
Life estates have been subject to special legislation since the nineteenth century, which granted the life estate owner powers to sell and otherwise deal with a property. The right of the persons who would otherwise have succeeded him, attach to the proceeds of the sale and to substitute reinvested assets.
Dower and Curtesy
Prior to modern succession legislation, a widow was entitled to a life interest in one-third of her husband’s freehold land under the Dower Act 1833. Prior to 1833 a widow was entitled to a right of Dower over lands sold or given away by the husband during marriage, but was not entitled to an interest where he did not hold the legal interest.
On marriage, the woman’s legal personality merged with that of her husband for most purposes, and he was given effective control over her assets. Dower extended to one-third of the lands seised in fee by the husband during the marriage. A wife might bar her right to dower in advance under a marriage settlement, under which she agreed to take instead to take a jointure.
A jointure was an interest in her husband’s property, either a particular share, or a life interest in a particular part of the land, or an annuity.
Strictly, dower was only available from land that her husband owned. A life tenant under a settlement was often given the power to appoint a jointure for his wife. A wife retained her right to dower (if not barred by a settlement) even if her husband sold the property; however, this right could also be barred by a fictitious court proceeding known as levying a fine.
The male equivalent of dower was curtesy, which is the life estate of a widowed male in all of the land in which his wife had a freehold interest. It was a condition that there was a child of the marriage.
Both Dower and curtesy were abolished by the Succession Act 1965.
Waste
Because of the limited nature of the life interest, the life tenant was subject to restrictions on how he might deal with the lands. Waste is the unreasonable or improper use of land by an individual in rightful possession of the land.
A party with an interest in land (usually a future interest) may take legal action where waste is committed by another who also has an interest in the land. Such disputes may arise between life tenants and remainderman. An injunction may issue to restrain the waste. Damages may also be granted for waste.
In an action for waste, a plaintiff commonly will seek damages for acts that have already occurred and request an injunction against future acts. A court will order an injunction if it finds that irreparable harm will occur and that the legal remedy would be inadequate unless otherwise provided by statute. Certain Acts provided for temporary relief if acts of waste are either threatened or committed.
The ordinary measure of damages for waste is the diminution in value of the property to the nonpossessor as a result of the acts of the possessor. This is frequently difficult to measure, particularly in situations where a significant period of time will elapse before the plaintiff is entitled to actual possession.
Types of Waste
The four common types of waste are voluntary, permissive, ameliorating, and equitable waste.
Voluntary waste is the willful destruction or carrying away of something attached to the property. In an action for voluntary waste, the plaintiff must show that the waste was caused by an affirmative act of the life tenant. Such waste might occur if a life tenant (a person who possesses the land for his lifetime, after which a remainderman takes possession) chops down all the trees on the occupied land and sells them as lumber.
Permissive waste is an injury caused by an omission, rather than an affirmative act, on the part of the tenant. This type of waste might occur, for example, if a tenant permits a house to fall into disrepair by not making reasonable maintenance /repairs.
Ameliorating waste is an alteration in the physical characteristics of the premises by an unauthorized act of the tenant that increases the value of the property. For example, a tenant might make improvements that increase the value of the property. Generally, a tenant is not held liable if he commits this type of waste.
Equitable waste is a harm to the reversionary interest in land that is inconsistent with fruitful use. This is recognised only by courts of Equity and was not regarded as legal waste in courts of law. For example, if the life tenant begins to cut down immature trees, the remainderman, who will someday take possession of the property, may file an action in equity seeking an injunction to stop the cutting. The remainderman would argue that the cutting imperils the productive use of the land in the future because the value of the land after the immature trees have been cut would be decreased.
Life Tenants and Waste
A life tenant was liable to future interest holders, for acts of destruction or so-called equitable waste, unless specifically exempted by the trust or settlement. Being made unimpeachable for waste would be sufficient to exempt the life tenant from liability for acts that reduced the value of the property.
Equitable waste refers to wanton waste or destruction. Non-impeachability for waste under the settlement/trust would not exempt the life tenant from liability to the future owner for equitable waste.
The principle of waste generally permitted improvements to the land. However, certain improvements were not permitted, if they damaged the environment at the expense of the future interest holders.
The life tenant was not generally responsible for failing to preserve the value of the land, but for failure to repair. The terms of the trust of the settlement under which he held a life tenant might oblige him to repair.
If the life tenant took some action that reduced the value of the land, the tenant for life was liable for waste, unless the settlement or trust exempted him.
Modifications
The life tenant was entitled to cut wood purpose of fuel, repairs and the current land uses. Dead wood should be cut where available. There was a right to cut turf or fuel, where the land included a bog.
The 18th century Timber Acts allowed tenants for life to register trees. He then became entitled to cut and sell them. The right was withdrawn in 1791 but was preserved for the lessees under leases for lives renewable for ever.
In the case of agricultural lettings of land held by life tenants, the tenants had the right of emblements, which is the right to enter the land to remove crops sown during the tenancy after its termination, such as on the death of the life tenant.
Lease for Lives Renewable
Leases for lives renewable for ever are a uniquely Irish interest and were the product of 18th-century penal legislation. On a superficial level, they had features of the life estate, being for the life of another.
A lease for a period of years or for so long as the named person shall live is a leasehold estate. A lease for lives and years is a freehold estate while the lives are in being. It then becomes a leasehold estate for the remainder of the term.
The interest was not a life estate but a lease. Rent was paid. However, there was freehold tenure, by reason of their potentially perpetual nature.
In earlier times it was used in plantor communities in that it centralised control and requirements in relation to the land while granting a potentially perpetual interest.The attraction of the interest in the 18th century was that it created some of the benefits of freehold tenure such as the franchise (the vote) in some cases while permitting the landlord the degree of control of a lease.
Other motivations included the circumvention of some aspects of the penal laws such as legislation that required the fee-simple or fee tail to pass to the sons of a Catholic landowner collectively.
Renewal
Lease for lives renewable for ever contained a clause providing that if any of the lives with reference to which the estate was measured died, it could be replaced with another life, on payment of a fine. A fine is a lump-sum payment to the original grantor.
The courts of equity allowed an equitable right to renew the lease even where the contractual right failed. The courts of equity allowed late renewal, even where all the relevant lives had died on payment of an additional fine. Renewals would be allowed when several lives have died provided the fines of fine equivalent was paid.
The equity was recognised by the House of Lords in 1722. It might be refused in the case of a very substantial delay other than cases of fraud or accident.
The Tenancy Act 1779 reversed this latter position and further confirmed the right of late renewal on payment of compensation. By the end of the 18th century, the Irish House of Lords had been restored, and it fully upheld the principle of renewal.
Reform and Abolition LLRFE
Leases for lives renewable forever could be (and were in most cases) converted into fee farm grants by the Renewable Leasehold Conversion Act, 1849. This entitled the holder to apply for a grant from the grantor. The fee farm grant was effectively a lease for ever on the terms of the original lease.
The Landlord and Tenant Act 1980 converted the all-existing leases for lives renewable for ever into fee farm grants.
Leases for lives could be created in such a way, as to be the equivalent of a fee tail. The Fines and Recovery Act 1834 did not apply. However, the courts by analogy allowed a similar procedure, in order to bar the quasi-entail.
The 2009 land law reforms provide (Section 14) that a lease for lives may no longer be granted at all. Existing fee farm grants, leases for lives and for lives and years are not affected.
References and Sources
Primary Texts
Wylie on Irish Land Law Wylie 6th Edition 2020
Land Law In Ireland -Lyall 4th Edition 2018
Principles Of Irish Property Law de Londras 2nd Edition 2011
Equity and the Law of Trusts in Ireland- Keane 3rd Edition
Land Law Kenna & Murphy 2019
Land Law Pearce & Mee 3rd Edition 2011
Other Irish Sources
The Land and Conveyancing Law Reform Act 2009: Annotations and Commentary -Wylie 2nd Edition 2017
Property Legislation 2009 2011 Cannon, Clancy, Kenna 2012
Irish Land Law – A Casebook: Adanan Maddox 2020
A Casebook on Equity and Trusts in Ireland – Wylie
Shorter Guides
Land Law Nutshell Cannon 2020
UK Textbooks
Land law C. Bevan 2nd ed.2020
Land Law: Text, Cases and Materials B McFarlane, N Hopkins and S Nield, (4th ed. OUP 2018)
Property Law R Smith(10th ed., Pearson, 2020)
Cheshire and Burn’s Modern Law of Real Property by Burn, E. H. 2011
Modern Land Law Dixon 2018
Elements of Land Law Gray, 2009
Property law: cases and materials Smith 2015
Land law Cooke 2015