The Gazette 1993

GAZETTE

would seem unquestionable that, politically, the momentum for further reform of the system, in the tenant's favour, will continue. The writer feels that, even if the radical reforms proposed are abandoned, there are still ample opportunities for reform within the system. . . . it would seem . . . that politically, the momentum for further reform of the system in the tenant's favour will continue. One might perhaps commence with the rent/RV test. If the rent is less than the RV, this will in most cases indicate a low rent and, therefore, very likely a ground rent. But is it not unnecessarily restrictive to be confining holders of long leases and yearly tenants to situations where such low rents apply? Would it not be a welcome extension of the compulsory acquisition system to give the tenant a choice so that, if he could not meet the rent/RV test, there would be some other more generous test which might accommodate him? It does not seem likely that a test as severe as the rent/RV test could absorb that many ground rents so what other test could be available as an option to the tenant? Generally, the rent fixed by the Circuit Court for a reversionary lease is one eighth of the "gross rent", reduced, where appropriate, by a special allowance for works carried out by the lessee or his predecessors in title. For such purposes, the "gross rent" is, in general terms, the Court's estimate of the rack rent for the property. The writer suggests that if the tenant could, as an alternative to the rent/RV test, qualify under ss.l0(2) or 15 (as amend- ed) of the 1978 (No. 2) Act if his rent were less than one eighth of the "gross rent", this would enable many more tenants to enlarge their estate into fees simple than are at present eligible 16 . If the writer were to go on to suggest that, where the rent/RV or alternative test available is complied with, and the other statutory requirements are met, the tenant should be conclusively entitled to enfranchise, such a

would be highly interesting to learn more of the circumstances which enabled such tenants to erect, and retain possession of, their houses on the basis of such a precarious interest in the site! Accordingly, the 1967 Act gave a right to acquire the fee simple to a person who, by himself or his predecessors in title, had been in continuous occupation as yearly tenants for all of the preceding 25 years at a rent less than the RV, if, inter alia, the buildings had been erected by the tenant whilst in occupation (there was a presumption in the tenant's favour to this effect). This provision comprised only those properties which were at all material times yearly tenancies. After the Landlord and Tenant Commission had made its recommendations", s. 15 of the 1978 (No. 2) Act, 1978 made it no longer necessary for the applicant to have held under a yearly tenancy for all of the 25 years. Provided the land has been held continuously for at least 25 years, it can have been held under any one or more of the following:- (c) a statutory tenancy by virtue of the Rent Restrictions Acts implied by holding over property on the expiration of a lease reserving a yearly rent. One unobstrusive but important change is that a purchasing tenant is no longer required to be in occupation. The rent must be less than the rateable valuation at the time the acquisition is begun but, by s.9 of the 1984 Act, the rent/RV test need not be satisfied if there is proof that the buildings were erected by the tenant or a predecessor in title. These provisions enable a yearly tenant to acquire the fee simple, but not a reversionary lease. (a) a yearly tenancy arising by express agreement; (b) a yearly tenancy arising by operation of law or by inference on the expiration of a lease; or

j citing the US Supreme Court's support | for state legislation for the compulsory ! transfer of title from lessors to lessees | in the interests of reducing the concentration of land ownership, has already indicated 17 that taking the leaseholder's side in this issue is not necessarily a breach of the European Convention of Human Rights. Our Irish system appears to differ greatly from that of our English neighbours in the importance the j j former attaches to proof of who erected j j the buildings, tempered though this may be by presumptions in the tenant's favour. When, for example, the Landlord and Tenant Commission | recommended 18 that a leaseholder under a long lease at a low rent (from j should be entitled to claim a reversion- j ary lease, it did not, expressly at least, include in its recommendations the I requirement, now found in condition 2, | that the buildings were not erected by | the lessor. It is as a result of such arguably excessive requirements that Irish applicants have to agonize over who erected buildings dating, for example, from 1750 19 - and beyond - whereas if a test such as the rent/RV j test were conclusive, they would be ! spared such interesting but arduous and expensive enquiries. It is also suggest- ed that, instead of requiring a term of not less than 50 years, condition 2 should follow the English example and require only a lease granted for a fixed- term exceeding 21 years 20 . | ! forget that the ground rent system often inflicts severe hardship on the tenant j | without conferring any benefit on the landlord. Too often they seem to presuppose a landlord and a tenant, each fully conversant with his rights and their value, who need be left only to market forces for justice to prevail. However, experience shows that the freehold reversion is often of no value to the owners, whose whereabouts may i be unknown and who may not even [ know of its existence. This results in ! the property being afflicted by a bad title which is like a sentence of death | since properties must be marketable if j they are not to fall into decay. To the 1 conveyancer not the least attractive I Critics of enfranchisement sometimes which it could be inferred that the lessor did not erect the buildings)

Some Suggested Reforms

Whilst the Constitution, and the European Convention of Human Rights, may prevent the proposed abolition of domestic ground rents, it

suggestion might appear to reflect a bias in the tenant's favour. However, 1 the European Court of Human Rights,

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