Rights of Residence
Rights by Will
Rights of residence are relatively common in Ireland, compared to Britain. A right to reside may be created by deed. They are commonly granted by wills. Typically property is given to one family member (often a child), with the right of another, (commonly the deceased owner’s surviving spouse) to reside there typically for his life.
Sometimes the will, which creates the right of residence is poorly drafted and/or its terms are not fully thought out. The terms of the right may not be set out in any detail. However, the courts will attempt to give effect to the intention of the person who has made the will.
Technical wording is not required. Some rights are not by their terms workable, such as where the property is incapable of raising the financial cost of maintenance charged on it.
Bequest Subject to Right
A property might be transferred or left by will to a person, subject to a right of residence and maintenance for the transferor or a relative who might be a widow or person with special accommodation needs.
Where a gift is given by will, subject to a right of residence, the beneficiary who accepts it, must in effect accept the terms and conditions to which it is subject. They need not accept it and may disclaim the gift entirely.
Scope
A right of residence may be limited to a particular part of a house or may extend to an entire house . It may be exclusive or non-exclusive. It may be a right to reside in a particular part of the dwelling house, perhaps a room, with or without a right of maintenance.
A right of residence may be accompanied by a right of maintenance. The extent of the obligation of maintenance may vary. The right of maintenance may be charged on a larger area, such as a farm on which the property is situated.
Interpretation of Terms
Certain rights of residence may be in the nature of contractual licences. The courts have been prepared in some cases, to protect licences by an order for an injunction or specific performance thereby, giving property-like rights, to the holder.
The nature of the rights conferred will depend on the terms of the deed or will by which it is created. The factual context will be relevant to its interpretation and the effect which is given.
In the case of a deed, the context and circumstance will be important. In the context of a will, the deceased’s intention is primary.
As a Licence
It has been suggested that the better view is that a right of residence is in the nature of a licence which if revoked, may be the subject of compensation, or enforceable by injunction.
The holder of a general right of residence may not exclude the owners of the property. An exclusive right of residence differs. It is likely to be given effect as such.
As a Life Interest
Occasionally, a right of residence has been interpreted as granting a life estate in the property. Depending on the wording, an intention to create a life interest may be inferred, terminable in some cases on a condition; for example when it is no longer required.
This is not the most commonly understood intent of a conventional right of residence. It would have the effect of granting extensive powers to the resident, including a right of sale under statutory powers. This would be likely to be contrary to the grantor’s or deceased’s intentions in many cases.
A life estate may exist only as an equitable right after the 2009 land law reforms. The proposition has been criticised in that rights created by way of gift, other than by deed, are not generally enforceable by the courts of equity.
Sometimes, an exclusive right of residence in respect of unregistered title land, if not formally created as a life or other interest, may be given effect as an equitable interest.
Positive Obligations
A right of residence or right of support is most commonly expressed as equivalent to a lien or charge over the property. It may, in principle be capable of being converted or compensated for by money, equivalent to the monetary value of the right of residence or right of support. A right of maintenance and support is more easily characterised as capable of expression in or converted to monetary terms.
Where a gift is given by will, subject to a right of residence, the beneficiary who accepts it, must in effect accept the terms and conditions to which it is subject. They need not accept this and may disclaim it.
Lien or Charge
The notion that the right of residence is in the nature of a charge or lien on the property has been criticised. The nature of the right may be unquantifiable, given the varying need that may arise over time.
By categorising it as a lien, it purports to be binding on a subsequent owner, effectively making it a positive covenant run with the land. This goes against the principles of unenforceability of positive covenants.
The statute of limitations recognises an action in the nature of a lien for monies, such as a right of support or right of residence not being an exclusive right of residence as in the nature of a debt.
Although a right of residence may be in the nature of a charge, it does not follow that it can necessarily be discharged by payment of money. If a will intends that the right of residence be created and maintained, the courts will endeavour to uphold this intention.
Registration of Title Act
The Registration of Title Act allows for the registration of a right of residence on the registered title. It may be a general right of residence or an exclusive right in all or in part of the land.
It is deemed to be personal to the person/beneficiary entitled and to be a right in the nature of a lien for monies worth. It does not create an equitable estate in the land. It must be registered as a burden on the registered title in order to validly affect the property.