Introduction to Land Law

Question 1

What is Ownership in relation to property

Answer 1

-Ownership is essentially a collection of rights that one has over property/land.
-This is constructed on two basic elements of control:
1. The control to do things with the property (e.g., farm the land)
o 2. Control to regulate how other people use the property (e.g., rent the land to someone else)

-There are limitations on how this control is exercised- e.g., criminal law (may not use the field to grow cannabis)
-The state can limit a person’s interest in land

Question 2

What is intangible property?

Answer 2

abstract/ non-physical interest in something e.g., copyright of a novel

Question 3

What is tangible property?

Answer 3

physical interest in something e.g., land, house, car

Question 4

What is real property?

Answer 4

“Rights held in freehold in relation to land, or things attached to land.” (De Londras)

Question 5

What is freehold?

Answer 5

an estate in land of indefinite duration and of free tenure (free of terms and conditions).

Question 6

What is estate?

Answer 6

Time capsule of rights over land (De Londras)

Question 7

What is tenure?

Answer 7

terms and conditions upon which land is held

Question 8

What is the origin of real property?

Answer 8

• This derives from the historical way in which the rights of freeholders [ a person who owned a freehold- an estate of indefinite duration with no terms and conditions] could be enforced.
• If a freeholder felt that their property rights were being infringed, then they could apply to the king’s courts.
• If they were successful in that action, they would be awarded a “real remedy” (restoring the freeholder’s rights over the property).
• The existence of a “real remedy” led to the description of such property as “real property”.

Question 9

What is personal property?

Answer 9

• Historically “all those who had rights in relation to things or to leases could take a personal action only and were therefore said to have personal property.”
• In this case a personal remedy would be awarded if the claim of a person regarding personal property was successful. This personal remedy would be compensation. Sometimes referred to as “chattels”.

Question 10

Are leaseholds treated the same as real property?

Answer 10

• Leaseholds are now however treated in the same way as real property. They are now classified as “chattels real: personal property in relation to which a real remedy is possible.” (De Londras)

Question 11

do ownership and possession go together?

Answer 11

• Often ownership and possession go together, but not always - sometimes they can be separated, and this can lead to disputes about who has what interest over the land.
• E.g., if I own a house but rent it to someone else, someone else is in possession of it, although I am the owner

Question 12

What was said in Pearce & Mee 2011?

Answer 12

“Traditionally, in Irish land law, the legal theory has been that the land itself is never owned. Instead, when the principles of land law were first being established during the feudal period, lawyers considered that the “owner” of land in fact enjoyed only an extensive bundle of rights over the land for a period of time known as an estate, and in return for certain obligations…known as tenure.” (Pearce & Mee, 2011)
- The concepts of estates and tenure are still in use today and included in the Land and Conveyancing Law Reform Act 2009.

Question 13

What is an Estate?

Answer 13

• Interests in land exist as “estates”.
• “An estate in land refers to a time period during which the owner has rights and obligations in respect of the land.” (Howlin & McGrath, Lyall on Land Law, 2018)
• Although we often think of land as a “thing”, “[t]his obscures the fact that land law is about power relationships between people and is focused on who has the best right to possess, sell and develop land either against private persons or the State.” Howlin & McGrath
• At the end of the 19th century in Ireland there was a big land war, tenants could not gain ownership over the land.
• The land commission has a lot of power over peoples’ land

Question 14

Land in the Irish Constitution

Answer 14

The Irish Constitution recognises that people have the right to own property such as land.
However, this right is not absolute and is subject to the common good.

Question 15

Article 43 of the constitution

Answer 15

o 1.1 The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.

o 1.2 The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.

o 2.1 The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.

o 2.2. The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.

Question 16

Article 40.3 of the constitution

Answer 16

The State guarantees, “by its laws [to] protect as best it may from unjust attack and, in the case of injustice done, [to] vindicate the… property rights of every citizen.”

Question 17

What is the effect of constitutional protection: seen in the Domestic Violence Act 2018

Answer 17

• Barring orders and interim barring orders only possible for cohabitants or parents of adult children if they own an equal or greater share in the property as the party they wish to remove from their home.
• Emergency Barring Orders: only last for 8 working days
• Barring orders are limited in this manner in order not to infringe property rights of parties under the Constitution.

Question 18

What protections are not absolute public interest

Answer 18

• Planning law
• Taxes
• Criminal law
• Public policy

Question 19

What happened in re Art 26 and Part V of the Planning and Development Bill 1999 [2000] 2 IR 321?

Answer 19

• The President challenged an aspect of the Planning and Development Bill 1999 which required developers to set aside a percentage of housing developments for social housing.
• The Supreme Court found that the aims of the provision were a legitimate and proportionate limitation of property rights.

Question 20

What happened in O’ Callaghan v. Commissioners of Public Works [1985] ILRM 364?

Answer 20

Facts:
- O’ Callaghan purchased land with a protected fort on it. He was aware of its protected state but proceeded to plough part of the area.
- This led the Commissioners of Public Works to make a preservation order under the National Monuments Act 1930.
- If the plaintiff failed to comply with this order he would suffer criminal sanctions. O Callaghan argued that the order was an unconstitutional attack on his property rights.

Held by the SC:
- This was a necessary interference with the property rights of the plaintiff as it protected “prized relics of the past”.
- The order was justified for the benefit of the common good.

Question 21

Land law in the European Convention of Human Rights

Answer 21

• Transposed into Irish law by the European Convention on Human Rights Act 2003
• Article 1, Protocol One:
  “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
• The preceding provision shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”