Fee Simple - Alienation

Question 1

Words of Limitation

Answer 1

Words of limitation are words that “measure out the quantity of estate” (Goodright v. Wright (1717) 1 P Wms 397 Parker CJ) in transfer of the land

Words of purchase:
- identify who the estate is being transferred to.

Question 2

Prior to the 2009 Act

Answer 2

1. Original strict Common Law position could only transfer a fee simple inter vivos (in life) using the phase “and his heirs”.
   If these words of limitation were not used, then a life estate would be transferred instead.
2. Section 51 of the Conveyancing Act 1881 allowed the use of the phrase “in fee simple”.

• Therefore prior to the 1964 Registration of Title Act (registered land) and the 2009 Act (unregistered land) could use two possible combinations:
• “My house to John and his heirs” or “My house to John in fee simple”

Question 3

Traditionally

Answer 3

• Equity would intervene if it was apparent that the transferor intended to grant a fee simple but had made a mistake (e.g., “To John in fee…”)
• Further use of additional words would be interpreted as conditions subsequent and a modified fee simple would be transferred.
• The default estate passed if the wording was unclear was a life estate.

Question 4

As time went on: S7 of the Conveyancing Act 1881

Answer 4

the transferee of a fee simple for value was entitled to have the deed of conveyance rectified to include the appropriate words of limitation.

Question 5

As Time Went on: S123 of the Registration of Title Act 1964

Answer 5

in the absence of contrary intention, a fee simple would be transferred in respect of registered land.

Question 6

As Time Went On: - Section 67(1) of the Land and Conveyancing Law Reform Act 2009:

Answer 6

a conveyance of unregistered land with or without words of limitation, or any equivalent expression, passes the fee simple or the other entire estate or interest which the grantor had power to create or convey, unless a contrary intention appears in the conveyance.

Question 7

As time went on: S67(1) - Retrospective

Answer 7

• This provision is problematic as it has retrospective effect (section 67(4).
• Example of this problem is provided in De Londras’s book:
  “Patrick conveys his house, which is unregistered land, inter vivos “to Ciaran” prior to the coming into effect of the 2009 Reform Act. Under the common law and statutory rules then in operation, Ciaran is entitled only to a life estate because the required Words of Limitation have not been used. Patrick has retained the fee simple reversion. Upon the retrospective application of 67(1), Ciaran receives a fee simple, and Patrick “loses” his fee simple reversion.”
• This is problematic as it deprives Patrick of his property rights under the Constitution and the European Convention on Human Rights.
• Section 68 of the Land and Conveyancing Reform Act 2009 attempts to resolve such potential issues.

Question 8

Section 68(1)

Answer 8

• Any interest in Land that was acquired, or one was entitled to due to the lack of Words of Limitation before the 2009 Act is extinguished unless that person applies for an order under section 68 within 12 years of the 1/12/09 and if the order is granted, registers it with the Land Registry.
• This time period has now run out.
• The court could decide to grant compensation instead of an order.
• The court could also decide not to make an order “if it [was] satisfied that no substantial injustice [would] be done to any party.”

Question 9

Fee Simple - Wills:

Answer 9

• Instead of focusing on words of limitation, the courts would endeavour to ascertain and give effect to the intention of the testator (in interpreting wills, the intention of the testator is key).
• Fee simple could be devised using the words “forever” or “absolutely”.

Question 10

Wills - Section 38 of the Wills Act 1837:

Answer 10

if no Words of Limitation, then the fee simple or the largest possible estate would be transferred unless there was a contrary intention apparent.

Question 11

Wills - Section 94 of the Succession Act 1965:

Answer 11

“Where real estate is devised to a person (including a trustee or executor (without any words of limitation, the devise shall be construed to pass the whole estate or interest which the testator has the power to dispose of by will in the real estate, unless a contrary intention appears from the will.”

Question 12

Fee Simple - Corporation Sole:

Answer 12

“A corporation sole is a person holding an office that is subject to perpetual succession…” (DL)
- E. G Taoiseach or the President

• Important to distinguish whether the fee simple is being transferred to the person themselves or the office.

Traditional means of transfer:
1. “To the Taoiseach and his successors” = transfer to the office itself
2. “To the Taoiseach and his heirs” = transfer to the person holding the office in a private capacity.

Question 13

Corporation Sole - Section 67(2) of the Land and Conveyancing Law Reform Act 2009:

Answer 13

• A conveyance of unregistered land to a corporation sole by that person’s corporate designation without the word “successors” passes to the corporation the fee simple or the other entire estate or interest which the grantor had power to create or convey, unless a contrary intention appears in the conveyance.”
• This is similarly the case in respect of registered land since 1967 (Registration of Title Act 1964).

Question 14

Fee Simple - Corporation Aggregate:

Answer 14

• A corporation aggregate is a collection of two or more people in a form that cannot die, such as a limited company.”
• No words of limitation are required in this context.
• E.g., “to O’ Flynn Construction Ltd.” transfers a fee simple to the limited company, no words of limitation required.

Question 15

Fee Simple - If trying to create a fee tail

Answer 15

Section 13(2):
- “Any instrument executed after the commencement of this Part purporting to create a fee tail in favour of any person vests in that person a legal fee simple or, as the case may be, an equitable fee simple and any contract for such a creation entered into before or after such commencement operates as a contract for such vesting.”

• Traditionally words such as “to John and the heirs of his body”, “to John and the heirs of his flesh” or “and the heirs of his proceedings”.
• In addition, under Section 52 of the Conveyancing Act 1881 “in tail” or “in fee tail”.
• The use of any of these words of limitation will now result in the transfer of a fee simple under the 2009 Act.