the requirement for the inclusion of “and his heirs” with the substitution of “in fee simple”
.The importance of this for the potential freeholder is that a failure to follow the correctwording will result in the passing of a life estate and not a fee simple. The wording of theconveyance must, for example include the plural form heirs
, must not deviate from theestablished terminology, and even an explanation within the habendum will not be enough tosave the fee simple
. The Law of Property Act
and the Land and Conveyancing Law reformAct
have effectively removed the need for specific words of limitation in England, Wales andIreland; in Northern Ireland the situation remains unchanged
. This was demonstrated in theRe Courtney case
, when a
fee farm grant’s inadequately worded conveyance inter vivos,
caused a freehold estate to be replaced by a mere life estate.A further concern for the freeholder is the concept of adverse possession, where a failure toexercise control over the land
can lead to its loss. Should a trespasser exercise physical andanimus possidendi control for twelve years, then the original
title is extinguished
and she cannot take action against the trespasser
, who must then register their new title.
This principle of adverse possession will continue in Northern Ireland despite earlier concernsover human rights issues
.There are three types of freehold estates within the U.K and Ireland. The first two, a fee simpleand a fee tail are inheritable estates. The final type is the non-hereditary life estate. A feesimple is an estate in land that is theoretically capable of lasting forever and can be inherited orpassed on inter vivos. The statute of Quia Emptores established that holders of fee simpleestates have the right to freely transfer or alienate property
through will or conveyance
But court authority and caution have instead lead to the retention of the original phrase and the new wording. Re Ford andFergusons Contract  1 IR 607.
Mallory's Case (1601) 5 Co Rep 111b at 112a
Re Ford and Fergusons Contract  1 IR
607. See also Foyle and Irish Feathers Co’s Contract *1918+ 1IR 13
Law of Property Act 1925
Land and Conveyancing Law Reform Act 2009
Although the Northern Ireland Law Commission Report, suggests that both the use of archaic conveyaning techniques(10.8@page48) and the words of limitation for conveyance of a freehold (10.11 @page 48) should be removed.
Re Courtney  NI 58 @ 65-66
The title holder must be shown to have loss both physical and animus possidendi, and the trespasser has taken over both of these for the statutory period of 12 years. Limitation(NI) Order 1989 , Art 21.Treloar v Nute 1976 1 WLR 1295
Limitation(NI) Order 1989, Art 26
Limitation(NI) Order 1989 ,Art 21
The Northern Ireland Law commission have recommended the employment of the process of parliamentary conveyance forthe dispossessed
title to the new holder.
Cooke, E ‘
Adverse Possession after
J.A. Pye(Oxford) Ltd V the United Kingdom’
57 N. Ir. Legal Q. 429 2006; Concerns over thehuman rights element of adverse possession seem to have abated due to the final decision of the European Court Of HumanRights in J A Pye (Oxford) Ltd. V UK (2006) 43 EHRR 43
Land Law in Ireland
ed) Sweet and Maxwell page 325
Subject to strict rules regarding the fomula of words used.