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
