The Gazette 1993

VOL.

87

NO.

2

JULY/AUGUST 1993

all such elements, only those quintess- ential parts peculiar to ground rents. Nevertheless, the legislation will be more easily assimilated if the evolu- tion of the present system is reviewed, however briefly and incompletely. What therefore are the ground rent's more characteristic rules, compliance with which is required by this involved legislation which, the writer feels, is certain to remain relevant? To enable a leaseholder to claim the fee simple, or a reversionary lease, the three conditions, for example, at s. 9(1 )(a), (b) and (c) of the 1978 (No. 2) Act must be complied with. These three conditions are entitled, as are others, to be called "threshold" conditions but including, for example, as they do, the requirement that the portion of the land not covered by the permanent buildings be subsidiary and ancillary to such buildings, a requirement for new tenancies echoed by s. 5(1 )(a)(ii) of the 1980 Act, the writer feels that they are less representative of the ground rent legislation than the seven alternative conditions in s. 10 and their counterpart in s. 15 (as amended), both of the 1978 (No. 2) Act, with one of which "equities" the applicant must comply. It is with these alone (and then only with three of them) that this short article will deal. When it was at length decided to provide a remedy for the fundamental grievance of the ground lessee who on the expiry of his lease was obliged to surrender building as well as site to a landlord whose predecessor had pro- vided only the site, the Oireachtas did not think, at first, in terms of giving certain tenants the statutory right to purchase the fee simple (enfranchise- ment). Instead the first effective attempt 9 to respond to this anomaly was the creation by the 1931 Act of the statutory reversionary lease. This enabled any person holding land under a building lease to obtain from the landlord a 99 year lease at a low rent. For the purposes of Part V of the 1931 Act which dealt with reversionary leases s.46(l)(d) defined "building lease" to mean a lease of land, inter 1. The Typical Building Lease

alia on which the permanent buildings , ' were erected by the person who, at the 1 time of such erection, was entitled to the lessee's interest under such lease. In Finn .v. Barry it was, however, held by the Supreme Court that the interest of a lessee did not commence until the date of execution of the lease and that, therefore, at the time the houses were erected, the applicant was not "entitled to the lessee's interest under such lease." Accordingly, s.46(l)(d) was amended so as to include a lease of land, inter alia, on which: (d) such permanent buildings were erected by the person who, at the time of such erection, was entitled to the lessee's interest under such lease; or were erected in pursuance of an agreement for the grant of such lease upon the erection of such permanent buildings. ! The paragraph so amended is now represented by the almost identical alternative condition 1 in s. 10 of the 1978 (No. 2) Act, with reference of course not only to obtaining a reversionary lease but also to the j j ' Leaseholds Commission issued its report 12 the difficulties encountered in proving who had erected the build- ings, had made themselves felt. By the time an application for a reversionary lease was made, those who had negotiated the lease or erected the buildings were, in most cases, dead. No information as to whether the buildings existed at the time of the lease could usually be gleaned from the recitals or the parcels in the lease. Where the buildings were erected in pursuance of an agreement for a lease, it was rare for the lease to recite the I previous agreement. j The Commission recommended 13 that, j where a lease was for a term of not less than 50 years, and the rent was less than the earliest available rateable ' valuation of the plot together with the buildings on it, it should be presumed until the contrary was proved, that the buildings were erected by the person acquisition of the fee simple. 2. Long Lease at a Low Rent By 1954, when the Rents and

entitled to the lessee's interest under the lease. In general, this was adopted by the 1958 Act except in the case of a lease granted before 1 January, 1914', when the rent had to be less than three-fourths of the relevant RV. Today, alternative condition 2 requires a lease for a term of not less than 50 years where the yearly r en t. . .is less than the amount of the rateable valuation, and . . . the permanent buildings on the land demised by the lease were not erected by the lessor or any superior lessor or any of their predecessors in title: provided that it shall be presumed, until the contrary is proved, that they were not so erected. Furthermore, the RV referred to in condition 2 is not the earliest available valuation but virtually the current RV and this, if indeed it signifies nothing else, is at least a convenience for the practitioner. The solicitor who is alert to avoid steering his client towards a new tenancy in case he may prove entitled to acquire the fee will not be free to relax if his client is not a leaseholder. The 1964 Report of the Ground Rents Commission spoke about the representations that had been made to them on behalf of certain houses in provincial towns, adding:- ln many towns these houses were built by persons who held the land on oral yearly tenancies. In other towns the houses were built on what may have been short term leases originating upwards of 150 years ago. If there were such leases the terms have long since expired and no evidence appears to have been available as to the existence of the leases. In both types of cases the present occupiers pay a rent which approximates to a ground rent. Under the present law their interest in the premises appears to be no more than that of a person holding under a yearly oral tenancy 14 . 3. The Yearly Tenant

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This brief reference is intriguing and it

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