The Gazette 1993

GAZETTE

JULY/AUGUST 1993

Footnotes. 1. Although even a yearly tenancy could be subject to a ground rent, and the practice varied so much as to provide little guidance, in Finn v. Barry [1941] IR, 450, 465, Johnston J. stated that 99 years had been regarded for 150 years as the customary period of a "building lease". There was a higher rate of stamp duty on leases for a term exceeding 100 years: Stamp Act, 1870, Sched., Stamp Act, 1891, 1st Sched.; and, although a term of 100 years was not subject to the higher duty, 99 years was adopted for safety. In McKenna v. Stack, 74 ILTR 91, 177, the applicant for a reversionary lease claimed that it was the invariable custom of the Listowel Estate office to grant leases for 100 years only. 2. It would be no less dangerous prematurely to describe a yearly tenancy as "as good as freehold" as occurred in Kehoe v. C.J. Louth & Son [1992] ILRM 282. 3. The Minister replied similarly to another Parliamentary Question on 30 January, 1992 and confirmed that the Government had no plans for a referendum on the abolition of ground rents. 4. "Review of the Fianna Fail-Progressive Democrats Programme for Government 1989-1993", pp. 8-9. The text of the Programme, first agreed in July, 1989, was released on 19 October, 1991. 5. Thus, the current Minister for Justice, Ms. Maire Geoghegan Quinn, replying to a Parliamentary Question on 10 February, 1993, not only omitted all reference to the proposals of the previous Government but pointed out that the existing law "provides a ready means by which any person can abolish the ground rent payable on a dwellinghouse". She told how, already, about 60,000 householders had availed themselves of that opportunity and, significantly, reminded the Deputy with whom the P.Q. had originated, that "any proposal to abolish ground rents without compensation would not be in keeping with Constitutional requirements." 6. The ground rent legislation referred to in this article as "the 1931 Act", "the 1943 Act", "the 1958 Act", "the 1967 Act", "the 1978 Act", "the 1978 (No. 2) Act", "the 1980 Act" and "the 1984 Act", are the Landlord and Tenant Act, 1931, the Landlord and Tenant (Amendment) Act, . 1943, the Landlord and Tenant (Reversionary Leases) Act, 1958, the Landlord and Tenant (Ground Rents) Act, 1967, the Landlord and Tenant (Ground Rents) Act, 1978,the Landlord and Tenant (Ground Rents) (No.2) Act, 1978, the Landlord and Tenant (Amendment) Act, 1980 and the Landlord and Tenant (Ground Rents) (Amendment) Act, 1984. 7. On the assumption that the definition in the 1978 (No.2) Act would apply,

this would include a fee farm grant: Wylie, Irish Landlord and Tenant Law, 35.9n„ 36.16n. 8. By s. 2( 1) of the 1978 Act, a lease (other than a reversionary lease) of a dwelling made after the passing of that Act, shall be void if the lessee would, apart from s. 2, have the right to enfranchise. The Act came into force on 16 May, 1978. 9. The 1931 Act was the first attempt to deal with this problem which succeeded in getting on the statute book, but it was not, of course, the first attempt. A series of bills similar in conception to the 1967 Act and commencing with the Leaseholders (Facilities for the Purchase of the Fee Simple) Bill,1883 were introduced in the House of Commons and the Dail before the 1931 Act became law. 10. Supra; n.l. 11. The words emphasised were deemed to be inserted by s2(i) of the 1943 Act. 12. Report on Reversionary Leases under the Landlord & TenantActs (Pr.2532,1954) para. 73. 13. Ib.,para.77. 14. Report on Ground Rents (Pr 7783, 1964), para. 61, p.20. 15. Report on Certain Questions arising under the Landlord and Tenant Acts, 1958 and 1967 (Prl. 59, 1968), para.131. 16 In England, the "low rent" needed to qualify a "long tenancy" for enlargement was, in the case of certain tenancies, defined by s. 4(1) of the Leasehold Reform Act 1967, not only by reference to a rent/RV test but to the letting value as well of the property. However, the difficulty of comparing the English with the Irish code, at least as the latter applies in provincial towns, is highlighted as one read in Manson v. Duke of Westminster [ 1981 ] QB 323 at 326 that the London house in question which the tenant held subject to a controlled rent of £100 per year and had acquired in 1973 for a premium of £18,500, had a rateable valuation of £1,076. 17. Case of James (Case No. 3/1984/75/119, European Court of Human Rights, 21 February 1986) citing Hawaii Housing Authority v. Midkiff, 467 US 229 at 241 ff,81 L Ed 2d 186 at 198 ff (1984). 18. Report on Certain Questions arising under the Landlord and Tenant Acts,1958 and 1967 (Prl. 59,1968), para. 68. 19. As in Barry v. Registrar of Titles [1992] ILRM 62. 20. Leasehold Reform Act, 1967, s. 3(1). 21. Op.cit, 36.213n. 22. (1869)IR 3 Eq. 528. *J.M.G. Sweeney is Professor Emeritus of Common Law, University College Galway and Consultant Solicitor, Murray Sweeney, Solicitors, Limerick. •

. . . the ground rent system often inflicts severe hardship on the tenant without conferring any benefit on the landlord. feature of the ground rent legislation is the mechanism it provides for solving certain conveyancing problems which would otherwise be insoluble. Thus, ' Professor Wylie says of the vesting certificate which by virtue of s. 22( 1) ; of the 1978 (No. 2) Act operates to convey to the applicant free from j incumbrances the fee simple and any j intermediate interests in the dwellinghouse:- "The vesting certificate has sweeping effect. It conveys all relevant interests to the applicant free from all incumbrances. It affects interests of i all persons, even those who are ! unknown, under disability or simply ; not joined 21 ." | Similarly, s. 8 of the 1967 Act confers on the County Registrar, when hearing applications to acquire the freehold 1 reversion both in the case of dwellinghouses and businesses, like powers of overcoming conveyancing difficulties. By means of the j overreaching device the Registrar of i Titles, or the County Registrar, as the case may be, becomes an alchemist, by statute enabled to solve the problems of pyramid titles by almost literally turning them into gold. For an ! equivalent of the extraordinary power to vest an indefeasible title in the purchaser, possessed by each of these officers, one has to recall the Landed Estates Court conveyance the effect I of which was so eloquently brought | to life by Christian LJ in Re \ Tottenham's Estate 22 when he described how ". . . by a sort of conveyancing magnetism, it would draw . . . from the absent, the helpless, the infant, the married woman, the mentally imbecile, nay, even the unborn, every | particle of estate and interest, legal or j equitable, present and future, known j or unknown, patent or latent, in the ! land expressed to be conveyed, and I would concentrate the whole in the I purchaser, freed from everything the conveyance itself did not save."

230