Freehold Estates Flashcards
What is a freehold estate in land?
Make a few points.
It is the longest and largest estate in land recognised under Irish law.
They concern the exclusive and outright ownership of land
A freehold estate is presumptively indefinite and capable of being disposed of in the will.
Freedom of alienability insofar as no consent is needed for the transfer of land.
What legislation concerns the defn of a freehold estate?
Section 11(2) of the LCLRA
Section 11(2) of the LCLRA
A freehold estate is a fee simple subject to
Determinable fees
right of entry and re-entry
revocation
annuity
right of residence
What are determinable fees?
When a freehold is granted subject to a possible state of affairs occurring.
When the state of affairs happen/end, the estate ends and reverts to the original transferor.
Possibility of reverter- possibility of getting land back
Words like ‘unless’, ‘while’ and ‘for as long as’ are indicative of a determinable fee.
Case on determinable fee simples and explain
Corrigan v Corrigan
Concerned a testator who disposed of the property in his will to his son until the property was to be used for residential/industrial development. Provided that when the acquisition occurred, the costs of sale should be distributed evenly amongst the siblings.
Held: Laffoy J held that this was a determinable fee but was void for uncertainty.
Stated that it was unclear whether the acquisition referred to a commercial purchase or only a compulsory purchase by the state. Also the land had not been zoned appropriately.
Stated that where an estate was contingent on a particular state of affairs, that state of affairs had to be defined and clear.
Notes on determinable fees
The state of affairs has to be a possibility.
If the event is definitely going to occur, it cannot be a determinable fee, ie. death is guaranteed
To establish a determinable fee:
Must be contingent on a state of affairs
When that state of affairs ends, the estate ends
Automatically reverts back to the original transferor
What are the 2 types of conditional Fees
Condition subsequent.
Condition precedent.
Condition Subsequent
Provide example
Condition you have to adhere to during the freehold and if broken, the estate will end.
Example: A grants FH to B subject to them being on good behaviour, if B engages in antisocial activity, A can choose to repossess the property.
Condition Precedent
Provide example
Condition has to be satisfied in order to allow for the conveyance to occur.
Example: A says that B gets granted land if they receive a first in their degree, if they dont, land wont be granted
The courts on con sub and con prec.
When a term is unclear as to whether its a con sub or prec, courts will assume its a cond subsequent as the law favours the transferability of land.
for cond precedent it could have the effect of the land not being transferred at all if term isnt met
Difference between condition precedent and condition subsequent
Some ppl may not like the terms of an agreement but still adhere to them because they want to retain the land.
If its certified that is a cond subsequent, if term is unfair/uncertain etc. it will be deemed void and individual gets FH estate free of the void term
However, if its cond precedent and that term is found to be unclear/restricts the transferability of land, the whole transfer will be cancelled because its created on a void term
What are the limitations on transferring freehold estates
Alienability
Certainty
Public Policy
Alienability
State and explain case
Re Mcdonnell
Concerned a testator who conveyed his land to his son subject to him being on good behaviour to the satisfaction of the executors and that the land could only be conveyed to members or descendants of the family.
- Was condition on good behaviour okay?
Held: Yes, it was a condition subsequent and if he was not on good behaviour to the satisfaction of the executors, the estate would revert.
- Was the condition on the transfer of property okay?
Held: No it restricted too heavily freedom of alienability insofar as normally, conveyance would be available to the whole world and now it was only confined to a specific group
The condition was void for it being too restrictive on freedom of alienation.
Conclusion: Freehold estate retained to the exclusion of the void term
Certainty
State and explain case
Re dunne
Concerned land conveyed in a will to husband and wife on condition that the land not be transferred to members of a specific family. The rationale for this was testator involved in feud with family and didnt want them to be able to have his land.
Held: Condition subsequent void for uncertainty as he didnt specify how many generations this would apply to nor if it applied to all the bloodline/relatives in residence
Public policy reasons: The law cant be used as a vehicle to promote ongoing feud.
Public Policy
State case and explain
Re burkes estate
Concerned testator and in her will she provided estate to child subject that they are raised with the roman catholic teachings and are educated in a RC institution, and if he grows up and then converts, estate will revert.
Also stated that child has to live in Ireland and couldnt leave for no longer than 6 months without consent , child lived in england for 3 years did it still apply?
Residence.
Unclear as to whether the term implied that the child permanently reside in Ireland or not. Courts stated that the terms habe to be clear so that person is not always in fear of what could consitute an omission of the term and deny them of the gift
Void for vagueness
Religion and education
infringed on right to parents to rear children in accordance with their religious beliefs.
Void for public policy reasons
Held: Child retained estate with no conditions.
Types of Freehold Estate
Life Estate
Fee Tails:
General
Special
Hybrid estates:
Leases for lives perpetually renewable
Leases for lives with a fixed term
Fee-Farm Grants
Conversion fee-farm grants
Whats a life estate
freehold transferred for the duration of a life, can’t be willed on.
How do they work
A life estate is granted to A for life and the remainder to C.
If A was granted a life estate with no remainder, once A died the property would revert back to the grantor, B.
If B is dead, look at the will.
Leg concerning Life estates
Section 11(6) LCLRA 2009
Section 18(4) LCLRA 2009
Section 11(6) LCLRA 2009
Provides that life estates only take effect in equity.
Does not abolish life estates created in the past.
Section 18(4) LCLRA 2009
Addressed the concern that the beneficiary would take a short-term view on how to exploit the land in question, they would use the land in a way which does not reflect the interests of future owners.
The doctrine of waste was used to prevent this:
Provided that the beneficiary had a duty to the future beneficiaries of the land to keep the land in as good a condition as it was received.
Obligatioons on beneficiary:
1. Could not take action that would destroy the land.
2. Minimal obligation to proactively improve/maintain the land.
The doctrine of waste is maintained if someone decides to create a life estate as an equitable interest in land.
Fee tails
De donis created special fee tails and general fee tails
General fee tails
Primogeniture:
If the property was owned in a family, it would automatically pass to the eldest male heir in the next generation.
Coparcenary:
If there were no male heirs identifiable, the property could be distributed equally among the relevant female heirs.
Special fee tails
Provided that property be left to certain heirs in the family.
It was used to keep the property within families designated by blood lineage.
It favoured men of the family over women.
It became problematic because of the structure of the fee tail: everyone in the family only got a life estate and couldn’t control where the property went.
Economic problem:
It was very hard to sell these properties/ raise finance to invest in these properties as no one wanted to buy a contingent life interest where they could die at any time and the interest be lost.
There needed to be a mechanism whereby details could be sold/ terminated outright:
Fines and Recoveries Act 1834
Provided for the barring of the entail- allowed for the sale and the transfer of a fee simple/ fee tail.
What leg concerned fee tails
Section 13 of LCLRA 2009
Section 13 of LCLRA 2009
Prohibited the creation of fee-tails in law and equity.
* Only deals with fee-tails made before the act
* If you try to create a fee-tail now they are deemed to create an equitable interest in land and not
a legal interest.
Words of Limitations
Reduces the complexity of the wording used to grant freehold estates.
In the feudal system, very specific wording had to be used to:
1. Describe the granting of land
2. Describe how long the property was to be granted.
3. Indicate if the property could be handed down through a will.
“And his heirs” granted a freehold estate.
Leg in relation to Words of limitation
S51 of Conveyancing act 1881
S123 of registration of title act 1964
S67(1) of LCLRA 2009
S51 of Conveyancing act 1881
“In fee-simple” would indicate a heritable estate
S123 of registration of title act 1964
Confined to registered land.
Absent any contrary evidence, if you transfer any estate in land, it is presumed that you are transferring a freehold estate.
S67(1) of LCLRA 2009
Applied to unregistered land
Conveyance of land is presumed to pass the fee-simple unless said otherwise in the conveyance- reduces complexity in the wording needed to be used to grant a freehold estate.
What are hybrid estates?
Mix of freehold and leasehold
Freehold: indefinite in time
Leasehold: Subject to paying rent
Name 2 types of hybrid estates
- Leases for Lives Perpetually Renewable
- Leases for Lives Combined with a Term of Years
- Leases for Lives Perpetually Renewable
The lease was granted for the duration of usually three lives.
* The tenant was given the power to replace those people when they died so in effect it could
last and renew forever.
* Rationale: People would be granted the security of a freehold estate but subject to obligations
being maintained, ie. The payment of rent.
- Leases for Lives Combined with a Term of Years
Not renewable, it would end when the number of lives assigned ended.
What leg concerns hybrid estates
Section 12 of LCLRA 2009
Section 12 of LCLRA 2009
Any attempt to create a new hybrid estate would result in the automa<c creation of a fee-simple/ freehold estate.
Fee farm grants
All types of fee farm grants were abolished by sec6on 12 of the LCLRA 2009. All pre-existing fee farm grants still exist in Irish law:
- Feudal
Quia Emptores prohibited any further subinfeudation.
Exception: The crown held the power to directly subinfeudate. People given land from the Crown had to pay rent in return. - Landlord-Tenant
Concerned a legislative process whereby leases for lives were converted into fee-farm grants. - Rent Charge
Where there is no landlord-tenant relationship, you obtain a fee-simple subject to paying a rent charge to the person who granted it.
Conversion fee farm grants
Conversion Fee Farm Grants
The Renewable Leasehold Conversion Act 1849:
1. The new creation of leases for lives would receive a fee farm grant instead.
2. Any lessees for lives could choose to convert their lease into a fee farm grant.
Deasys Act Grants
Aimed to improve the landlord-tenant relationship.
Provided that the lease would be founded through an express/ implied contract and subject to paying rent.
