The Gazette 1989

GAZETTE

DECEMBER 1989

restoring the statutory power of partition and empowering the court to order a sale of property in lieu of partition. Perpetuities The Commission has indicated that it is taking a serious and detailed look at the Rule Against Perpetu- ities. As an interim measure, it recommends that easements, options, profits a prendre and rent charges over land should be removed from the effect of the Rule Against Perpetuities and that any such amendment to the law should provide that the Rule never applied to those interests. Words What is in a word? At present, there are few statutory provisions which can help conveyancers in interpreting certain key words like "mo n t h ". The Supreme Court decision in Vone Securities -v- C/arke (1979) highlights the problems involved. Thus, the Commission sensibly suggests that legislation should be enacted which gives legal meaning to a number of key words and phrases (such as expressions of person, distance and time). Judgment Mortgage Anyone interested in property need not be reminded of either the im- portance of judgment mortgages or the complicated state of the law on judgment mortgages after the Tempany -v- Hynes decision. The Commission believes that, for the purpose of judgment mortgages, when a binding contract for the sale of land has been entered into,

the law should treat the beneficial ownership as having passed to the purchaser from the time the con- tract was made, subject to the condition subsequent that he com- pletes the sale. Joint Tenancy The Commission has suggested that freehold land should be sever- able and convertible into a tenancy in common by a simple deed between the parties in the same way as a leasehold estate may be severed. Bain -v- Fothargill As a general rule, if there is a breach of contract by the vendor then the purchaser is entitled to damages. However, based on the decision in the case of Bain -v- Fothergill, where the breach relied upon by the purchaser is the vendor's failure to show good title then, provided the vendor was not fraudulent or acting in bad faith, the purchaser is not entitled to recover damages for loss of bargain but is limited to recovering the deposit and so l i c i t o r 's fees. The Commission believes that the rule in Bain -v- Fothergill has outlived its usefulness and should be abolished. It is difficult to disagree with the Commission on this point! Forfeiture Section 8 of the Forfeiture Act 1870 states that a convict may not make any disposition of property while in prison. This provision is not only of little significance in practice but probably unconstitutional as well. The Commi ss i on has recommended its abolition.

RECTIFICATION OF ANOMALIES ARISING FROM MODERN LEGISLATION Planning Section 27 of the Local Government (Planning and Development) Act 1976 allows for the High Court to prohibit the continuance of the development of land for which planning permission is required and which is being carried on without permission. This is a provision of considerable practical and political significance. The Commission has recommended that it be amended (a) by extending the provisions of S.27(1) (a) to cover development which has been completed without the necessary planning permission and (b) to include in the section, a five year limit on the bringing of applications whether in respect of develop- ments or unauthorised uses. Both of these proposals, particularly the second, are quite sensible and would reduce a house buyers's cost (but would they also reduce the house buyer's protection?). S.45 Section 45 requires an "unqualified person" (within the meaning of the section) who acquires an interest in land not situated in a county bor- ough, borough, district or town to obtain the consent of the Land Commission to the vesting of the land in him. Most trading companies would be "unqualified persons". The problem is that "rural areas" are being built up. Shopping centres such as those in Dundrum, Ra t h f arnham & Stillorgan are in rural areas and the Land Act 1965 f

c as»° i t mm j v c ^ m S M I T H * CORONA

11 WORLD FAMOUS BRAND NAMES

BUSINESS ELECTRONIC EQUIPMENT 1 2 A Parkmore L T D . Industrial Estate, Tel: (01) 509044 Long Mile Road, FAX: (01) 509744 Dublin 12

4 49