Conditional Estates
Freehold Legal Estate
Prior to the 2009 legislation, a great variety of legal estates could, in theory, exist. Most of those rights have now been transformed into rights under a deemed trust so that the relevant property is generally capable of being sold free from such rights, which may accordingly, attach to the proceeds of a sale.
It is a fundamental principle of freehold ownership, that generally, land may be freely left to successors and may be sold. There are, however, exceptions and qualifications to these rights. The right to freely leave to whomsoever one chooses has been modified to some extent, by succession law. See the sections on succession in relation to the rights of spouses cohabitant’s civil partners and children.
Most restrictions on the free saleability of freehold title are void. Restrictions which claim to limit the ownership and the right to sell to a limited group, are likely to be invalid.
Generally, restrictions on the transfer of ownership are suspect and may be against public policy. Exceptionally, restrictions that shall leave the vast majority of persons as possible owners may be upheld.
Statutory Freehold Conditions
Most freehold agricultural land in the State was acquired by the Land Commission in the period from the end of the 19th century to the middle of the 20th century and vested in tenant farmers. See the separate section on the Land Acts and the Land Commission.
The Land Commission had powers to apply restrictions on persons who acquired land from it. The condition could be imposed to require the person in whom title was vested, to reside continuously on land to the satisfaction of the Land Commission. This was upheld on a constitutional challenge. Most such remaining restrictions were repealed in 2005.
Housing legislation has traditionally placed restrictions on ownership of land vested by housing authorities in former tenants. Typically there is a period during which the land may not be sold or transferred, without the consent of the Local Authority. The purpose is to ensure that the person does not become subject to social housing rights again.
Many of these limitations have been reduced or removed. For example, the standard restriction on local authority tenant-purchased houses requires consent to transfer for a period of up to [25] years.
Determinable Estates
The 2009 Act retained the possibility of legal determinable fee-simple estates and fee simple estates, subject to conditions. Therefore a legal fee simple estate may be granted on terms that it is determinable or is subject to a condition.
A determinable fee (freehold estate) ends automatically on the occurrence of the relevant event. Some words in the deed of grant are consistent with the determinable fee. Other words are consistent with a conditional interest. The courts are more willing to find a conditional interest, as it does not lead to automatic termination of the ownership right.
Words like “until”, “as long as”, “during”, or while might imply a determinable fee. In contrast, words like “on condition”, “provided that”, “but if” etc., are likely to be interpreted as a conditional fee.
Determinable fees end automatically on the occurrence of the defined event. This is why the Court leans against defining them. The statute of the limitations issue does not arise. The right of the grantor or successors is a so-called possibility of reverter. The right could not be transferred at common lawl. It would appear to be freely transferable after 2009 reform.
Determinable rights are much more easily created under a trust. The trust may specify to whom the land will pass, in the event that the condition fails. In this way, it is more flexible than a conditional estate. If nothing is specified then the asset potentially reverts to the person who made the trust.
Conditional Estates
Conditions may apply to the vesting of the interest in the first place (conditions precedent) or they may apply after it is vested (conditions subsequent). It is a matter of interpretation of the grantor’s intention, as to which class of interest applies. If a condition of its nature applies at a point in time at the outset, it is more likely to be a condition precedent (a precondition). If it is an on-going obligation, it is more likely to be a condition subsequent.
A conditional fee does not end automatically if the condition is broken. It gives the grantor or his successors, a right of re-entry which must be asserted. A right of entry or of re-entry attached to a legal estate. It is not possible to create terms by which the land would pass automatically to a third party on breach of the condition. It is an interest recognised by law and may be sold and disposed of.
A right of entry, is itself subject to the Statute of Limitations. Once this period of 12 years expires, the right to re-enter terminates and the estate becomes absolute.
It is possible to obtain relief against forfeiture for breach of condition provided, that there is no gift over under a trust to another.
The right of entry for a condition broken, is now freely assignable. Prior to the 2009 Act, it could only be transferred by will or on intestacy.
Public Policy Issues
The 2009 legislation declares the general principle that fee-simple interest is freely alienable. This applies to the ordinary fee-simple. It is possible by way of an exception, that there may be a determinable fee simple and a fee simple subject to a special condition.
The conditions applicable to both determinable estates and estates subject to a condition, may be in terms that are against public policy. The courts did not regard such conditions with favour at common law, as they could lead to the defeasance of an established and vested interest. Some conditions were, because of the terms of the condition itself, held to be objectionable and void as against public policy. The same broad approach is likely to apply under the 2009 Act.
If the condition is void as being against public policy, it is struck out and the fee-simple interest becomes absolute. If the words are not severable, they fell away and an absolute interest would be taken at common law.
The condition might be void because it seeks to restrain sale or limit the grantee’s freedom in an overly broad way (e.g. marry only a very limited class). In modern times, it might be found to be in breach of public policy because it is unlawful discriminatory (e.g.in racist terms). After the 2009 Act, it is still possible to create a fee-simple interest subject to conditions.
Restrictions on Transfer
Attempts to make land inalienable (i.e. incapable of being transferred) are potentially invalid on public policy grounds. A limitation restricting sales / transfers to a limited number or class of persons, may be valid provided that it does not constitute unlawful discrimination against public policies. If they are too narrow, they might amount to an invalid restriction on transfer.
Conditions which provide that a person must reside or occupy the property may be invalid, in some cases. It will depend on the particular circumstances, whether it is against public policy. In some such cases, the restrictions are found to be void for being insufficiently certain. In other cases, they are not capable of being fulfilled or may be frustrated by a party with an adverse interest.
Transfers of an estate or interest on terms by which they are not available to the public generally or to a section of the public may in some cases be valid. Provision for accommodation for a person in a part or a self-contained part of a person’s home may be valid. Different considerations arise where it affects his private or family life, or other persons residing in the house.
Names and Marriage
Conditions that require a person to take up the donor / testator’s name may be valid in some cases. In some cases, it may be void for uncertainty in so far is it is a continuing obligation. Where the condition is simply applicable or not at the outset, there is less of an issue.
It is relatively easy to assume a surname. Arms grants may be obtained from the Chief Herald of Ireland. Arms are ancient rights and their status in modern Ireland is unclear.
Complete restraints on marriage are almost always void as against public policy. Partial restraints (i.e., limiting the category or time when a person may marry) may be potentially valid. If they are interpreted as providing for the person until he / he marries, then they are much more likely to be upheld. In the 19th century, gifts subject to a condition (commonly not to marry a Catholic) were upheld in particular circumstances, at least subject to some conditions.
Anti-Discrimination Legislation
If the sale restriction is permissible in not unduly restraining transfer, it may still be challenged on discrimination and human rights grounds.
The Equal Status Act provides that a person must not discriminate on the grounds set out, in disposing of any estate or interest in a property. Prohibited grounds are gender, family status, marital status, sexual orientation, religion, age, disability, race, colour, nationality, ethnicity, or national origin. Dispositions by will or gift are exempted.
Under the Constitution, questions may arise whether any restriction on the right to marry is consistent with the Constitution at all. The requirement that a person be brought up and /or remain in a particular religion, are potentially subject to chance on the grounds of uncertainty or unlawful discrimination. Legacies and benefits given to children on condition that they are brought up in a particular religion may be held invalid on the basis that it infringes the parents’ right to educate children as they see fit.