The Gazette 1993

GAZETTE

NOVEMBER 1993

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charges created by an overseas company owning land in Ireland (but not having a place of business here) should be registered on the charges register in the Companies Office (this would now catch, for example, equitable mortgages by deposit not registerable in the Registry of Deeds). A third recommendation involves amendment of section 90 of the Registration of Title Act, 1964, which is the section enabling a transferee of registered land to deal with it before the formalities of regist- ration of the transfer are completed. The amendment recommended is twofold: first, to extend such dealings to the granting of leases (thereby facilitating sale and leaseback arrangements) and, secondly, to clarify that such dealings may involve part only of the and transferred. The third category of recommendations relates to landlord and tenant law and deals with various aspects of the Landlord and Tenant Acts, legislation which continues to cause a multitude of problems. One recommendation is designed to reverse the effect of the Supreme Court's ruling in Fitzgerald v Corcoran [1991] LLRM 545 that a sporting or recreational club may have the right to acquire the fee simple in its clubhouse and ancillary areas. The under the Landlord and Tenant Act, 1971, or, if there is to be the right to acquire the fee simple in some of its land, it should remain subject to the covenants restricting user to sporting etc, activities, in accordance with section 28 of the 1978 (No 2) Act. Section 28 is, of course, a particularly troublesome provision and, indeed, the Commission had earlier drawn attention to its apparent effect on collateral covenants (see also Whelan v Cork Corporation [1991] LLRM 19, affd Supreme Court, 15th November 1990) see Report on Land Law and Conveyancing Law: (1) General Proposals , LRC 30 - 1989, Commission takes the view that such an organisation's statutory rights should be confined to obtaining a sporting lease

association like a club or community organisation to be validly appointed by a majority of members present at a general meeting (without the need for appointment by the last surviving trustee or that trustee's personal representative, as required by section meeting, to operate as a vesting deed relating to the association's land (for the purposes of section 12). The third recommendation in this category is one long overdue, namely, abolition of the need for words of limitation in conveyances of unregistered land. This change was made in England in 1925 and for registered land in Ireland by section 123 of the Registration of Title Act, 1964. The Commission decided not to take up one further suggestion made by Mr Mervyn Taylor TD, that one joint tenant should be able unilaterally by notice to sever the joint tenancy and thereby convert it into a tenancy in common. The TD had in mind the situation of the family home of a husband and wife who have separated, but the Commission concluded that the solution suggested might cause more problems than would solve and anticipated, rightly, that the matter would be overtaken by proposed legislation. The Matrimonial Home Act recently passed by the Oireachtas changes the position of spouses dramatically in relation to the family home by giving each spouse equal rights of ownership to the home and household effects, unless they agree otherwise. The second category of recommenda- tions involves rectification of anomalies arising from modern legislation. One is to amend the Planning Acts to give Planning Authorities jurisdiction to grant planning permission in respect of development of land below the high water mark (within a three mile zone), eg, for a jetty ; another is to amend the Companies Acts to provide that all 10) and a copy of the resolution, certified by the chairman of that

Report on Land Law and Conveyancing Law: (5) Further General Proposals

Law Reform Commission, 1992, 23pp, paperback, £6.00.

As the title indicates this is the fifth in a series of reports issued since 1989 by the Commission on the subject of reform of our land law and conveyancing system. In preparing these reports the Commission has had the guidance of a Working Group of experts, including several very experienced practitioners. The result has been a wide range of recommendations which are eminently sensible and which, if implemented, would remove the flaws in our current system which cause most problems. The Report under review is no exception. Its recommendations are grouped into three categories. The first contains those relating to simplification of conveyancing generally. One addresses the problems created by the Land Registry requirement that a company document lodged for registration should have been executed under the seal of that company. Generally this does not cause a problem where the company in question is an Irish or UK company, because a company seal is usually used in such cases, but problems do arise where the company is based in a jurisdiction where it is not usual to have a corporate seal, such as the Netherlands. The Commission recommends that the registering authorities should be able to accept that a document has been validly executed if that execution complies with the legal requirements of the jurisdiction in which the executing body is incorporated. Another recommendation is the amendment of sections 10 and 12 of the Trustee Act, 1893, to enable new trustees of an unincorporated

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