Leasehold and Hybrid Estates

Question 1

Leasehold Estates: Section 11(3)

Answer 1

• “A “leasehold estate” means… the estate which arises when a tenancy is created for any period of time or any recurring period and irrespective of whether or not the estate-
  a. Takes effect in immediate possession or in future, or
  b. is subject to another legal estate or interest, or
  c. is for a term which is uncertain or liable to termination by notice, re-entry or operation of law or by virtue of a provision for cessor on redemption [lease ends where a debt is paid] or for any other reason.”

Question 2

Categories of Leasehold Estates

Answer 2

1. Tenancy at Will removed by 2009 Act
2. Tenancy at Sufferance removed by 2009 Act
3. Periodic Tenancy
4. Leases for a Term Certain
5. Reversionary Leases

Question 3

Tenancy at Will

Answer 3

• Indefinite in duration.
• Rarely rent payable.
• Terminated at will of either.
• No longer possible under Section 11(3) of the Land and Conveyancing Law Reform Act 2009

Question 4

Tenancy at Sufferance

Answer 4

• A tenancy at sufferance occurred where a tenant remained in possession of the estate after the lease had expired.
• No longer possible under Section 11(3) of the Land and Conveyancing Law Reform Act 2009

Question 5

Post 2009 Act - Periodic Tenancy

Answer 5

• Lasts for a definitive period of time and renews automatically.
• Periodic Tenancies can either be express or implied.
• An example of this would be a recurring weekly lease.
• The periodic tenancy ends when either party gives notice.
• In Common Law this period is typically the length of time of the lease.
• Therefore, for a weekly lease, the period of required notice would be a week.
• There are exceptions to this, e.g., 6 months’ notice for a yearly periodic lease but a year for agricultural land.
• Also, legislation now regulates the area: See further the Residential Tenancies Act 2004

Question 6

Leases for a term certain

Answer 6

• The duration of a lease for a term certain is determined at the outset of the lease.
• Once the specified period of time ends, the lease terminates automatically.
• A lease for a term certain may still include a notice period and/or a renewal clause.

Question 7

Reversionary Leases

Answer 7

• This is a lease which is set up that that when one lease ends, the reversion is leased to someone else.
• Ordinarily, when a lease ends, the reversion goes to the landlord, but in this instance the reversion is assigned to another person in a leasehold interest.

Question 8

Hybrid Estates

Answer 8

• Hybrid Estates combine elements of the freehold estate and the leasehold estate.
• Thus, they are hybrids or mixtures of the two.
• Often the hybrid estates will be of indefinite duration (like a freehold estate) but require the payment of some form of rent (like a leasehold estate).

Question 9

Land and Conveyancing Reform Act 2009 - Hybrid estates

Answer 9

• Primarily Hybrid Estates have been abolished under the 2009 Act.
• However, this does not have retrospective effect.
• Thus, these hybrid estates still exist in Irish law if created prior to the 2009 Act.

Question 10

Hybrid estates - types

Answer 10

• Leases for Lives Perpetually Renewable
• Leases for Lives Combined with a Term of Years
• Fee Farm Grants

Question 11

Hybrid estates - types

Answer 11

• Leases for Lives Perpetually Renewable
• Leases for Lives Combined with a Term of Years
• Fee Farm Grants

Question 12

Hybrid estates - types

Answer 12

• Leases for Lives Perpetually Renewable
• Leases for Lives Combined with a Term of Years
• Fee Farm Grants

Question 12

Hybrid estates - types

Answer 12

• Leases for Lives Perpetually Renewable
• Leases for Lives Combined with a Term of Years
• Fee Farm Grants

Question 13

Leases for lives Perpetually Renewable

Answer 13

• The duration of a lease for lives perpetually renewable endured for the lives of named people (usually three) and upon their death the tenant would replace the deceased with another person. In this way the lease was perpetually renewable.
• A renewal fee, called a fine, had to be paid in order to replace the deceased person.
• • The grantor was still technically a landlord, but the tenant effectively held a freehold interest which lasted for the lives of the replaceable people, who could be renewed as they died, thus allowing the interest to be perpetually renewable.
• Developed for social reasons.
• Therefore, in the 1800s if a person was granted such a perpetually renewable lease they would have the right to a parliamentary vote. However, the person who would have granted the lease (the landlord) would retain influence over the person (e.g. that this vote would be used to support their interests). Also the “landlord” could attach certain conditions and covenants to the land.
• Irish law was very flexible about the formation and renewal of perpetually renewable leases.
• A perpetually renewable lease for lives could be transferred without any precise words of limitation.
• The intention of the grantor was of primary importance.
• A doctrine known as the “old equity of the country” developed in Ireland whereby the landlord had to allow for the renewal of lives, even where there was a delay after all the lives had died.
• The House of Lords in England was not as kind to such leases and did not agree that equity should help the lessee where he had lost his interest through his own fault.

Question 14

Tenantry Act 1779

Answer 14

• The legislation set out that the treatment of leases for lives perpetually renewable by the Irish courts was to continue.
• However, problems arose with the payment of fines and the fact that it became difficult for the landlord to know if the people who determined the duration of the lease had died and been replaced or not.

Question 15

Renewable Leasehold Conversion Act 1849

Answer 15

Section 37 set out that any attempt to create a lease for lives perpetually renewable would result in the creation of a fee farm grant (more on this later).

Question 16

Land and Conveyancing Law Reform Act 2009

Answer 16

• Section 12(2) sets out that any attempt to create a lease for lives perpetually renewable will result in the creation of a fee simple for the intended grantee.
• The Tenantry Act 1779 and the Renewable Leasehold Conversion Act 1849 have been repealed.
• However, it is still possible that a lease for lives perpetually renewable might have survived the enactment of the 2009 Act and will continue to operate as such as Section 12(2) does not act retrospectively.
• Section 12(2) sets out that any attempt to create a lease for lives combined with a term of years, will result in the transfer of a fee simple to the grantee.
• It is however, again possible, that such leases may have survived the Act.

Question 17

Leases for lives combined with a term of years

Answer 17

• A lease for lives combined with a term of years was a lease whereby the tenant would receive a freehold estate pur autre vie with a lease for a term of years attached.
• This lease was not renewable.
• The main aim of the lease was to secure votes from the grantees by granting them an interest in the land for a limited period of time.
• Essentially the lease was determined by both the length of the lives that were chosen and the term in years specified. There was, however, sometimes doubt as to whether this time ran concurrently or successively. This would usually depend on how the grant was constructed.

Question 18

Fee Farm Grant

Answer 18

• A fee simple subject to a perpetual rent.
• Possessed particular relevance in Ireland.
• The grantee of a fee farm grant obtained a right to hold the land forever subject to the payment of a fee farm rent.
• If this fee farm rent was not paid, then the fee farm grant would terminate.
  1. Feudal Fee Farm Grants
  2. Conversion Fee Farm Grants
  3. Deasy’s Act Grants
  4. Grants Subject to a Rent charge

Question 19

Feudal Fee Farm Grants

Answer 19

• The Quia Emptores which restricted subinfeudation in England, did not have the same effect in Ireland.
• This meant that sometime after the feudal system had died out in England, it was being used in Ireland.
• During the Plantations for instance, it was common that the crown would subinfeudate land to supporters in Ireland for the payment of a chief rent, known as a quit rent. These supporters were then given extensive freedom to subinfeudate the land themselves.
• Using this power to subinfeudate the land, the feudal regime was operated in Ireland after its demise in England. The kind of land holding which was given to grantees was a fee simple subject to the payment of a “rent”. These were known as Fee Farm Grants.

Question 20

Feudal Fee Farm Grants

Answer 20

• The Quia Emptores which restricted subinfeudation in England, did not have the same effect in Ireland.
• This meant that sometime after the feudal system had died out in England, it was being used in Ireland.
• During the Plantations for instance, it was common that the crown would subinfeudate land to supporters in Ireland for the payment of a chief rent, known as a quit rent. These supporters were then given extensive freedom to subinfeudate the land themselves.
• Using this power to subinfeudate the land, the feudal regime was operated in Ireland after its demise in England. The kind of land holding which was given to grantees was a fee simple subject to the payment of a “rent”. These were known as Fee Farm Grants.

Question 20

Feudal Fee Farm Grants

Answer 20

• The Quia Emptores which restricted subinfeudation in England, did not have the same effect in Ireland.
• This meant that sometime after the feudal system had died out in England, it was being used in Ireland.
• During the Plantations for instance, it was common that the crown would subinfeudate land to supporters in Ireland for the payment of a chief rent, known as a quit rent. These supporters were then given extensive freedom to subinfeudate the land themselves.
• Using this power to subinfeudate the land, the feudal regime was operated in Ireland after its demise in England. The kind of land holding which was given to grantees was a fee simple subject to the payment of a “rent”. These were known as Fee Farm Grants.

Question 21

Feudal Fee Farm Grants

Answer 21

• The Quia Emptores which restricted subinfeudation in England, did not have the same effect in Ireland.
• This meant that sometime after the feudal system had died out in England, it was being used in Ireland.
• During the Plantations for instance, it was common that the crown would subinfeudate land to supporters in Ireland for the payment of a chief rent, known as a quit rent. These supporters were then given extensive freedom to subinfeudate the land themselves.
• Using this power to subinfeudate the land, the feudal regime was operated in Ireland after its demise in England. The kind of land holding which was given to grantees was a fee simple subject to the payment of a “rent”. These were known as Fee Farm Grants.

Question 21

Feudal Fee Farm Grants

Answer 21

• The Quia Emptores which restricted subinfeudation in England, did not have the same effect in Ireland.
• This meant that sometime after the feudal system had died out in England, it was being used in Ireland.
• During the Plantations for instance, it was common that the crown would subinfeudate land to supporters in Ireland for the payment of a chief rent, known as a quit rent. These supporters were then given extensive freedom to subinfeudate the land themselves.
• Using this power to subinfeudate the land, the feudal regime was operated in Ireland after its demise in England. The kind of land holding which was given to grantees was a fee simple subject to the payment of a “rent”. These were known as Fee Farm Grants.

Question 21

Feudal Fee Farm Grants

Answer 21

• The Quia Emptores which restricted subinfeudation in England, did not have the same effect in Ireland.
• This meant that sometime after the feudal system had died out in England, it was being used in Ireland.
• During the Plantations for instance, it was common that the crown would subinfeudate land to supporters in Ireland for the payment of a chief rent, known as a quit rent. These supporters were then given extensive freedom to subinfeudate the land themselves.
• Using this power to subinfeudate the land, the feudal regime was operated in Ireland after its demise in England. The kind of land holding which was given to grantees was a fee simple subject to the payment of a “rent”. These were known as Fee Farm Grants.

Question 21

Feudal Fee Farm Grants

Answer 21

• The Quia Emptores which restricted subinfeudation in England, did not have the same effect in Ireland.
• This meant that sometime after the feudal system had died out in England, it was being used in Ireland.
• During the Plantations for instance, it was common that the crown would subinfeudate land to supporters in Ireland for the payment of a chief rent, known as a quit rent. These supporters were then given extensive freedom to subinfeudate the land themselves.
• Using this power to subinfeudate the land, the feudal regime was operated in Ireland after its demise in England. The kind of land holding which was given to grantees was a fee simple subject to the payment of a “rent”. These were known as Fee Farm Grants.

Question 21

Feudal Fee Farm Grants

Answer 21

• The Quia Emptores which restricted subinfeudation in England, did not have the same effect in Ireland.
• This meant that sometime after the feudal system had died out in England, it was being used in Ireland.
• During the Plantations for instance, it was common that the crown would subinfeudate land to supporters in Ireland for the payment of a chief rent, known as a quit rent. These supporters were then given extensive freedom to subinfeudate the land themselves.
• Using this power to subinfeudate the land, the feudal regime was operated in Ireland after its demise in England. The kind of land holding which was given to grantees was a fee simple subject to the payment of a “rent”. These were known as Fee Farm Grants.

Question 22

Land and Conveyancing Law reform Act 2009

Answer 22

• Section 9(2) (abolition of feudal tenure) does not affect any fee farm grant made in derogation of the Statute Quia Emptores 1290 (S 9(3)(c).
• This means that any feudal fee farm grant that may have survived continues to exist after the 2009 Act.
• Due to the large-scale land repurchasing schemes which operated in the late 19th and early 20th century, whereby tenants could purchase the freehold interest in land, it is unlikely that many feudal fee farm grants would continue to exist in any case.

Question 23

Conversion Fee Farm Grants

Answer 23

• These conversion fee farm grants developed as a result of the problems with the lease for lives perpetually renewable.
• The Renewable Leasehold Conversion Act 1849 established a scheme whereby the perpetually renewable lease could be converted to a fee farm grant.
• Renewable Leasehold Conversion Act 1849:
  1. Section 37: Any attempt to create a lease for lives perpetually renewable after 1 August 1849 would result in a fee farm grant.
  2. Section 1: Any lessees for lives could choose to convert their lease to a fee farm grant under the Act.
  o There was not a huge uptake on the option to convert the lease for lives perpetually renewable to a fee farm grant.
  o This was possibly due to the fact that potential calculated rent might be more costly then the fines payable to renew the lives in the lease.
• Land and Conveyancing 2009:
  o Section 8(3) repeals the Renewable Leasehold Conversion Act 1849, removing the possibility of converting such leases to a fee farm grant.
  o However, existing converted fee farm grants continue to operate under Section 12(4) of the Act.

Question 24

Deasy’s Act Grants

Answer 24

• Section 4 of the Landlord and Tenant (Amendment) Act 1860 (Deasy’s Act) was interpreted by the Irish Courts as allowing the creation of a landlord tenant relationship in respect of freehold land thus facilitating the creation of a fee farm grant (Chute v. Busteed (1865) 16 Ir CLR 222)

Question 25

Grants subject to a Rent charge

Answer 25

• A grant subject to a rent charge is a fee simple which is subject to the payment of rent. The grantor themselves created this fee farm grant.
• The rent charge is attached to the land and is a kind of incorporeal hereditament.

Question 26

Land and Conveyancing Law Reform Act 2009

Answer 26

• Section 41 does not allow the creation of new rent charge grants.
• However, as the section does not act retrospectively, rent charge grants that existed prior to the Act will continue to operate.