The Fee Simple: Restrictions

Question 1

What is assessed in determining whether a restriction on a fee simple is valid?

Answer 1

The effect on its alienability
the certainty of the clause; and
its compatibility with public policy

Question 2

What happens if a condition precedent is invalid?

Answer 2

the fee simple is never alienated to the grantee as the condition required for this to happen cannot be fulfilled

Question 3

What happens if a condition in a conditional fee simple is invalid?

Answer 3

the transferee gets to keep the fee simple free of the invalid condition

Question 4

What happens if a determining event in a determinable fee simple is invalid?

Answer 4

the transferee gets nothing

Question 5

What are the impermissible restrictions?

Answer 5

• Restrictions on alienation
• Restrictions regarding children
• Names and arms clauses
• Restrictions on marriage
• Ethnic, sectarian, and religious restrictions

Question 6

What is Alienation?

Answer 6

• Alienation (ability to transfer land) is considered as an intrinsic aspect of the fee simple. This was established in the Quia Emptores and is confirmed in the Land and Conveyancing Law Reform Act 2009 (s.9(4)). Any condition that restricts alienability is viewed as against public policy.

Question 7

Alienation: What is the Doctrine of Repugnancy?

Answer 7

all restrictions that limit alienability are viewed as invalid as it is repugnant to the concept of the fee simple estate

Question 8

Alienation: What happened in Re McDonnell 1965?

Answer 8

• McDonnell left property in a complex trust.
• Clause: “It is my will and I direct that my lands situate at Closutton and Farranafreney shall not be sold but shall remain in my family to this extent that is to say that my said lands shall not be sold or assigned to any person who is not a member or a descendant of a member of my family.”
• Budd J: Invalid condition due to the restriction on alienability

Question 9

Alienation: What is Strict application in Ireland?

Answer 9

• Similar application of the law in Billing v. Welsh (1871) IR 6 CL 88 (attempt to restrict alienation to a class of people) and Byrne v. Byrne (1953) 87 ILTR 183
• De Londras suggests that there might be an exception if the exception applied to just one named person, but this is mere speculation.
• Re Fitzsimons [1992] 1 IR 295: a limitation on the sale of existing land which had been transferred to the beneficiary during the life of the testator in order to attain land devised in a will, was deemed acceptable as the clause did not relate to the land being devised.

Question 10

Alienation in the UK?

Answer 10

• Seems to take a more open approach to such clauses (“a broad, policy-based test”)
• Doe v. Pearson 6 East 173 (1805)
• Two sisters were left a fee simple in a will. There was a condition that if neither had issue then the land could only be alienated to their other sisters or their other sisters’ issue (children). The court held that the condition was valid.
• Attwater v. Attwater 18 Beav 330 (1853)
• A fee simple was granted subject to the condition that it could only be alienated to one of five brothers. Here the condition was rejected as invalid.
• In re Macleay LR 20 Eq Cases 186 (1875)
• A fee simple was granted to a brother on condition “that he never sell it out of the family”. This condition was held to be valid.
• Jessel MR: The test was “whether the condition takes away the whole power of alienation substantially; it is a question of substance, not of mere form”.

Question 11

Requirements involving children?

Answer 11

• Requirements that involve children are often invalid.
• This is particularly the case where there is a requirement that the child live apart from their parents

Question 12

Children: What happened in Re Boulter 1922?

Answer 12

• Grandchildren of testator would receive land “upon the express condition that such children or child are or is at all times during their or his respective minorities (both before and after my decease) maintained in England and do not reside abroad except for periods not exceeding six weeks in each year”.
• The children’s mother was German, and their father wished to work abroad as a linguist due to economic depression.
• Sargant J. held that these kinds of conditions had a prejudicial effect on children’s relationships with their parents especially where due to circumstances parents needed to move abroad.
• If enforced the condition would mean that the children would be separated from their parents.
• Therefore, the condition was invalid as it was contrary to public policy.

Question 13

Children: What happened in re Johnson: Morgan v. McCaughey [1986] ?

Answer 13

• If the condition was valid then a 15-year-old boy would have to live apart from his parents.
• The boy was also prevented from fulfilling the condition because his aunt would not let him live with her (as required by the condition).
• Carswell J:
  o “a condition tending to bring about the separation of parent and child [is invalid], whether or not it was designed by the testator to have such an effect”.

Question 14

Marriage?

Answer 14

• There is an unenumerated right to marry in the Irish Constitution.
• There is also a right to marry in the European Convention on Human Rights and the EU Charter of Fundamental Rights.
• A clause completely limiting a person’s right to marry would therefore be invalid. Notwithstanding this, traditionally restrictions phrased so that it was apparent that the intention was to provide for a person until they married were allowed.
• Therefore, ‘to A in fee simple until they marry’- a determinable fee which would be acceptable.
• Whereas ‘To A in fee simple but if A marries the grantor has a right to entry’- a conditional fee which would be unacceptable.
• This is notwithstanding the fact that both clauses are essentially doing the same thing (giving A fee simple while they remain single).

Question 15

Marriage: Partial Restrictions?

Answer 15

• Most of the cases regarding marriage restrictions are old and therefore it is not clear how a modern court would treat such clauses.
• According to Wiley (2020): It is a question of construction whether the restriction should be regarded as sufficiently in restraint of marriage (in terrorem) as to contravene public policy. Further, a clause might be void for uncertainty- it could be unclear how the person can comply with the clause (e.g., if requirement to take a spouse’s name usually unclear in what context the name would have to be used).
• Keily v. Monck (1795) 3 Ridg PC 205: only marry someone with an exorbitant income was too broad as restricted almost anyone from becoming the person’s spouse.
• Greene v. Kirkwood [1895] 1 IR 130: could not marry someone below her social class was upheld as a valid condition

Question 16

Insufficiently Certain Conditions:

Answer 16

• From a practical perspective a condition must be sufficiently certain for it to be interpreted and applied.
• Clavering v. Ellison (1859) 7 HLC 707, at 725 Lord Cranworth:
  o “I consider that, from the earliest times, one of the cardinal rules on the subject has been this: that where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the courts can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine.”

Question 17

Names and arms clauses:

Answer 17

• Requirements which require the grantee to adopt a particular name or coat of arms
• Mainly such clauses fail due to lack of uncertainty- it is uncertain when, where how often etc. the different name or coat of arms needs to be used.
• But in essence the name aspect is possible.
• In Irish decision of Kearns and McCarron v. Manresa Estates Ltd. (1975 Unrep) HC, Kenny J found that a ‘name an arms’ restriction was void for uncertainty as could not determine when ‘a person has disused or discontinued to use the surname which he is obliged to assume.’

Question 18

Names and Arms clauses: What happened in Austen v Collins 1866?

Answer 18

lost right to land because he could not obtain authority to use the required coat of arms

Question 19

Names and Arms Clauses: What happened in Re Fry 1945?

Answer 19

condition that required a wife to adopt a name which was not her husbands was contrary to public policy

Question 20

Names and Arms Clauses: What happened in Re Neeld 1962?

Answer 20

different marital names were acceptable

Question 21

Religion:

Answer 21

• Rights to practise religion under Article 44 of the Constitution guarantees religious freedom and Article 9 European Convention on Human Rights.
• Again, more common in the past. Often would fail due to lack of certainty- e.g., how to determine if one has ceased to ‘practise’ the required religion?

Question 22

What happened in Re Burke’s Estate [1951] ?

Answer 22

• Testatrix left a gift for the maintenance and education of a minor in the Roman Catholic School in Ireland.
• The gift was to be forfeited if the minor ceased to practise the religion.
  The minor’s mother was Catholic, and their father was Protestant.

Gavin-Duffy P:
- The condition was void for uncertainty.
- It was not possible to ascertain what constituted cessation in the practice of the religion

Question 23

Discriminatory Conditions:
What happened in re Dunne 1988?

Answer 23

Property left in fee simple in a will “subject only to the condition that my dwelling house and lands thereof shall not be sold or otherwise conveyed or transferred by them or either of them, their successors or assigns, to any member of the Meredith families of O’ Moore’s Forest, Mountmellick”.

The court held that “seeking to perpetuate old family divisions and carry them forward into future generations who may occupy the lands after the death of the testator” by the application of a condition was contrary to public policy.

Question 24

Multi-part conditions subsequent?

Answer 24

• It is possible to transfer a fee simple with multiple conditions.
• This can prove problematic if one of the conditions is invalid.
• If the conditions are to be read separately then the invalidity of one will not affect the other. However, if they are viewed as composite, then both conditions will be invalid.

Question 25

What happened in re Coghlan 1963?

Answer 25

• A farm was left to a nephew on trust “provided my said nephew shall marry (if he be married at my death) and come to reside there within one year from the fate of my death, and in event of my said nephew not marrying and coming to live there as aforesaid, in trust to sell said farm and house and all stock and contents and apply the proceeds of such sale for the celebration of Masses…”
• The nephew contended that the requirement for residence was uncertain as it did not specify how long the residence was to be. Further, he argued that the residency requirement was part of a composite condition and therefore the whole condition was invalid and should not apply.
• Supreme Court: Conditions subsequent are to be strictly construed. “If there be doubt as to whether the two conditions are entirely distinct…or are composite…the doubt should be resolved in such a manner as to not invoke divesting.”
• The court should consider the “object and intention of the testator in the will”.
• The court had to consider “the prevalent desire among Irish countryfolk to preserve a family farm in the hands of the family”.
• Bearing this in mind, the marriage requirement was connected to the residence condition and therefore they could not be separated. Due to the uncertainty of the residence requirement, the entire condition fell.