Topic 2: Historical impacts on land law

Question 1

Tenure

Answer 1

Refers to terms upon which landowner holds land

Question 2

Estates

Answer 2

Entitlement to rights in land over time

Question 3

Subinfeudation

Answer 3

Adding another layer to the feudal structure - every time a piece of land is passed down - results in expansion

Question 4

Substitution

Answer 4

When an individual stepped out laterally and is replaced by somebody else - no expansion

Question 5

Services

Answer 5

Ongoing duties and responsibilities that somebody owed to somebody above them in the chain

Question 6

Incidents

Answer 6

One off duties or obligations eg unfree tenants had to sit in court when the travelling judge would come around to solve local disputes.
Still have that basic idea in land law today - S73(1) of the succession act of 1965 - the property will revert back to the state if the person dies without a will and no successor can be found

Question 7

Quia Emptores 1290

Answer 7

Prohibited any further subinfeudation (important in giving free tenants the right to freely transfer their land)
Exception in Ireland: the crown retained the right to subinfeudate: because of the plantations - resulted in the Fee Farm Grant

Question 8

Tenures Abolition Act (Ireland) 1662

Answer 8

Limited the circumstances in which incidents would be owed so that all that could be claimed was the payment of rent

Question 9

Abolition of feudal tenure

Answer 9

LCLRA s9 + s10

Question 10

Judicature (Ireland) Act 1877

Answer 10

• Fused the two court systems (common and chancery - equity)

- Provide both common law and equity principles, would use equity when conflict arose

Question 11

Trusts

Answer 11

• Originated as ‘uses’
• Developed a system where they would transfer land from A to B to the use of C: Idea of split ownership that’s at the heart of the idea of trusts - B being the owner and C being the equitable owner
• Statute of Uses (1535, 1634), execution of use designed to prevent development of use: Use upon the Use developed in response
• Origin for the modern trust: ownership rights split between two entities, one required to hold land for benefit of another, who has equitable rights

Question 12

Doctrine of Notice

Answer 12

• Burdens attaching to property
• Bona fide purchaser for value for legal estate / interest takes free of equitable rights of which had no notice (Only kicks in when valuable consideration paid, doesn’t count for inherited / gifted land)
• ‘equity’s darling’ - to be free of third-party right of which he is not aware

Question 13

Notice in the LCLRA

Answer 13

S86(1)

Question 14

Actual Notice

Answer 14

O’Connor v McCarthy [1982] 1 IR 161
Rumours floating around the town that someone else had rights
Courts said mere rumour didn’t count
Test is whether a reasonable man would act upon the information and regulate their conduct on the information
Question of subjective notice

Question 15

Constructive Notice

Answer 15

Northern Bank Ltd v Henry [1981] I.R. 1

Hunt v. Luck [1902] 1 Ch. 428

Question 16

Split by implication

Answer 16

• Resulting and/or constructive trusts
• Courts imply a split in legal and equitable ownership
• Rights although isn’t named

Question 17

Imputed Notice

Answer 17

Kingsnorth Finance v Tizzard 1986] 1 WLR 783

• Should the bank have been aware of rights wife had (had been coming to mind kids etc even though they were split up)
• Courts said bank hadn’t done enough to satisfy the requirement of reasonable enquires and inspections
• Significant burden on purchasers - upping complexity and cost of dealing with land

Question 18

Overreaching

Answer 18

S21 LCLRA - doctrine of overreaching, limits the significance of the doctrine of notice

• The idea that the purchaser of land can overreach (hop over) equitable rights in land (can buy land free of A’s rights)
• A’s rights move on and attach to the proceeds of sale
• prioritising dynamic security (protect the purchaser, feeds back into the market)

Question 19

Northern Bank Ltd v Henry [1981] I.R. 1

Answer 19

• Constructive notice
• Wife’s father had bought her a house, she and her husband decided to sell. Husband left the wife, he had obtained a loan and put the house up as security for that loan. Bank didn’t enquire as to whether wife had any hold on the property. Husband defaulted, looked for house
• Wife claimed equitable rights over the property - split by implication
• Trade up in the husband’s name but the wife had contributed considerably so had equitable rights
• Did the bank have notice of these rights?
• Courts concluded they hadn’t made any effort to get info on the rights, knew it was a family home, should have been on guard that all correspondance was to be sent to his workplace
• Court said objective test for enquiries which ought to have been made – what purchaser should reasonably have done (test/standard of reasonableness)
• Court emphasised what was involved was legal reasonableness
• Fairly reasonable burden

Question 20

Kingsnorth Finance v Tizzard 1986] 1 WLR 783

Answer 20

• Imputed notice
• Should the bank have been aware of rights wife had (had been coming to mind kids etc even though they were split up)
• Courts said bank hadn’t done enough to satisfy the requirement of reasonable enquires and inspections
• Significant burden on purchasers - upping complexity and cost of dealing with land

Question 21

Hunt v. Luck [1902] 1 Ch. 428

Answer 21

• Constructive notice
• If there’s somebody occupying the land you buy and those individuals have property rights the purchaser is automatically deemed to have constructive notice of those rights
• Only way to avoid it is to ask physically - knock on the door and ask
• If they lie and say they do then that doesn’t impose rights, if they say they don’t then you can rely on that
• Big emphasis placed on this method in this case - cumbersome and unsatisfactory

Question 22

Three types of notice

Answer 22

Actual notice: notice handed directly to the person

Constructive notice: imposing duty on purchasers to make reasonable investigation to see if there are any equitable rights

Imputed notice: when agent (eg estate agent) has or ought reasonably have had knowledge of the notice

Question 23

Equity looks on that as done which ought to have been done

Answer 23

Equity will give effect to a transaction as having done enough to transfer a certain estate

Question 24

Tempany v Hynes [1976] IR 101

Answer 24

• When you’re at the contract stage and haven’t yet completed the deeds, when the price has been paid over the new owner is deemed to have the equitable estate
  equitable owner upon completion of payment
• S52 of the LCLRA 2009: ‘…the entre beneficial interest (equitable interest) passes to the purchaser on the making, after the commencement of this Chapter, of an enforceable contract for the sake of other disposition of land’

Question 25

Walsh v Lonsdale (1882) 21 Ch D 9

Answer 25

• Will have done enough to create an equitable lease by payment - here in leasehold

Question 26

Equity looks on that as done which ought to have been done cases

Answer 26

Tempany v Hynes [1976] IR 101

Walsh v Lonsdale (1882) 21 Ch D 9

Question 27

Specific Performance

Answer 27

Doctrine that establishes that where you have a contract to enter into the sale or purchase of land, the courts can force you to complete that contract and enter into the exchange of deeds stage
- Aranbel v Darcy [2010] IEHC 272
Conclusion: Specific Performance is not a remedy the court should award in vain. -it shouldn’t be used.

Question 28

Aranbel v Darcy [2010] IEHC 272

Answer 28

• specific performance
• Where you had a new development people queued up overnight etc to pay a deposit for a unit - usually around 10% - at which point a contact signed (required to be completed in legal terms)
• Housing market crashes during construction so by the time the building finished the market price is considerably less than the original amount, 10% of which was paid
• Involved three separate sets of tenants in 2006 who had paid deposits for apartments in Citywest
• In 2008 were called upon to complete their purchases, argued they were no longer in a position to do that given the economic circumstances at the time (The apartments now worth 50% less than had been agreed)
• Courts considered that when the market was going well the developers were usually happy to let the contract fall through and just keep the deposit but now weren’t happy to do that as would be a big loss
• Clarke J said an important principle of equity that equity should not act in vain - shouldn’t give an equitable remedy when it was futile to do so
• If someone would find it impossible to complete then orders for specific performance shouldn’t be made
• Ordered damages instead
• Clarke emphasised threshold for specific performance wasn’t just hardship
• Conclusion: Specific Performance is not a remedy the court should award in vain. -it shouldn’t be used.

Question 29

Principle of Alienability

Answer 29

concept of not being unduly restrained in one’s alienation of property rights – landholders should be free to deal with their property as possible in the circumstances of organised society - one of the most important legacy of feudal period

Question 30

Bona Fide Purchaser

Answer 30

Purchaser of land over which a 3rd party holds equitable rights of some kind.

Question 31

equity’s darling

Answer 31

to be free of third-party right of which he is not aware