Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Standard view
Full view
of .
Save to My Library
Look up keyword
Like this
1Activity
0 of .
Results for:
No results containing your search query
P. 1
"In Northern Ireland, a freehold estate does not necessarily amount to full ‘ownership’ of property”

"In Northern Ireland, a freehold estate does not necessarily amount to full ‘ownership’ of property”

Ratings: (0)|Views: 113 |Likes:
An essay for the 2011 Undergraduate Awards Competition by anthony doherty. Originally submitted for Land Law at University of Ulster, with lecturer Alice Diver in the category of Law
An essay for the 2011 Undergraduate Awards Competition by anthony doherty. Originally submitted for Land Law at University of Ulster, with lecturer Alice Diver in the category of Law

More info:

Published by: Undergraduate Awards on Aug 29, 2012
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
See more
See less

05/13/2014

 
1
"In Northern Ireland, a freehold estate does not necessarily amount to full ‘ownership’ of property”
 The Oxford Dictionary of Law
1
 
defines ownership as “the exclusive right to use, possess, anddispose of property subject only to the rights of persons having a superior interest.” This
definition is couched in the legal understanding of ownership and is probably far removed fromthat held by the average home owner. For them the definition
s first section embodies theconcept of ownership and the possibility of anyone else having any say in how they dispose oruse the land might seem foreign. It is important to realise, however, that in law there istheoretically no absolute ownership of land
2
. In order to examine this issue it is first necessaryto explain a few key concepts.Historically land was granted from the superior land holder,
the crown in Northern Ireland’s
case. What particular connections there were between the
“grantee”
individual and the landwas known as tenure. This delineated one
s relationship with the superior landholder, but itdid not stipulate how long one could remain on the land. This duration of connection with theland is known as the estate in land. Thus regardless of the nature of the tenure, the estate inland could vary. Today land can be held either through a leasehold or a freehold with a freeholdbeing perceived as the nearest to absolute ownership in land.In real terms the rights of the crown, or rather the government today, still have a bearing on
that “absolute ownership”. The feudal concept of e
scheat allowed land to revert back to thecrown once the estate determined. This finds its modern voice in the concept of bonavacantia
3
; should a freeholder die intestate, without relatives, then the property will effectivelyrevert back to the crown.Even before the potential freeholder has the estate passed to them there is the somewhatarchaic conveyance to be negotiated. Traditionally for a fee simple to be passed during thelifetime of the grantor, then a specific formula of words had to be followed. Originally the
proper wording was “to X and his heirs”
4
. The Conveyancing Act of 1881
5
supposedly removed
1
Oxford Dictionary of Law 2006 (6
th
ed)
2
Megarry and Wade
The Law of Real Property 
(2008)(7
th
ed) Sweet and Maxwell page 37
3
Admin of Estates (NI) Act 1955 s.1 (5)
4
Wylie
 
Irish Land Law 
(2010) (4
th
ed) Bloomsbury s.
4.26. The words “to X” being the words of purchase ,”and his heirs” being
the words of limitation
5
The Conveyancing Act of 1881, s.51
 
2
the requirement for the inclusion of “and his heirs” with the substitution of “in fee simple”
6
.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
7
, must not deviate from theestablished terminology, and even an explanation within the habendum will not be enough tosave the fee simple
8
. The Law of Property Act
9
and the Land and Conveyancing Law reformAct
10
have effectively removed the need for specific words of limitation in England, Wales andIreland; in Northern Ireland the situation remains unchanged
11
. This was demonstrated in theRe Courtney case
12
, 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
13
can lead to its loss. Should a trespasser exercise physical andanimus possidendi control for twelve years, then the original
freeholder’s
title is extinguished
14
 and she cannot take action against the trespasser
15
, who must then register their new title.
16
 This principle of adverse possession will continue in Northern Ireland despite earlier concernsover human rights issues
17
.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
18
through will or conveyance
19
.
6
But court authority and caution have instead lead to the retention of the original phrase and the new wording. Re Ford andFergusons Contract [1906] 1 IR 607.
7
Mallory's Case (1601) 5 Co Rep 111b at 112a
8
Re Ford and Fergusons Contract [1906] 1 IR
607. See also Foyle and Irish Feathers Co’s Contract *1918+ 1IR 13
 
9
Law of Property Act 1925
10
Land and Conveyancing Law Reform Act 2009
11
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.
12
Re Courtney [1981] NI 58 @ 65-66
13
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
14
Limitation(NI) Order 1989, Art 26
15
Limitation(NI) Order 1989 ,Art 21
16
The Northern Ireland Law commission have recommended the employment of the process of parliamentary conveyance forthe dispossessed
holder’s
title to the new holder.
17
 
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
 
18
Lyall
Land Law in Ireland 
(2000) (2
nd
ed) Sweet and Maxwell page 325
19
Subject to strict rules regarding the fomula of words used.
 
3
A fee tail estate is again capable of lasting forever but can only pass to descendants of theoriginal grantee;
20
it is therefore not freely alienable. A fee tail can be transformed into a feesimple by barring the entail.
21
A few fee tail estates still exist, but the Northern Ireland LawCommission recommends that no more should be created and any existing fee tails will beconverted to fees simple absolute
22
.Finally a life estate is based upon the life span of a designated person and on their death theestate returns to the original grantor upon reversion
23
. Life estates in Ireland could sometimesbe much more complex than this, as shall be examined later.
24
 The taxonomy of freehold estates does not stop there. There are modified fees and there arefees simple absolute, which mean that the owner can dispose of and use the land in anymanner they see fit
25
. This notion of 
ownership is not as absolute as the old “cujos est solum”
maxim would suggest
26
. Those legally on the land who find items upon the land have a bettertitle to the find than the landowner.
27
The freeholder may in fact have a better claim for itemsattached to their land
28
but in reference to minerals or treasure trove found upon their land,then there is a great deal of legislation vesting control of these finds to the Government.
29
 Neither does the freeholder control the sky above her except to a reasonable height
30
nor is shefree, amongst other things, to either own wildlife
31
or divert water courses on her land
32
. Thereis also the issue of licenses attached to the land
33
as the purchaser, unless genuinely apurchaser without notice may be estopped from revoking these licenses
34
.
20
Statute De Donis Conditionalibus (1285)
21
Fines and Recoveries Act Ireland 1834
22
Northern Ireland Law Commission report NILC 8 2010 Page16 s.3.16
23
Under proposed new legislation in N.Ireland, life estates will be regarded as equitable interests. Northern Ireland LawCommission report NILC 8 2010 page 16
24
See page 7 below
25
Within the limits of statute and the common law, i.e tort rule of Rylands v Fletcher (1868) L.R. 3 H.L. 330 (HL),see alsoTransco Plc v Stockport MBC [2003] UKHL 61; [2004] 2 A.C. 1 (HL)
26
 
Cujos est solum, ejus
est usque ad coelum et useque ad inferos.” The freehold owner owns all that is above the surface to an
unlimited extent and owns all below the surface to the centre of the earth.
27
Parker v British Airways [1982] 1 All ER 834
28
Elwes v Brigg (1886) 33 Ch D 562
29
Chapelle
Land Law 
(2006) (7
th
ed) Pearson Longman,page 26; Eg The Coal industry Act 1994 , The Treasure Act 1996 s.5, ThePetroleum Act 1998 s.17
 
30
Bernstein v Skyways [1977] 3 WLR 136 and the Civil Aviation Act 1982 s.76
31
The Case of Swans (1592)
32
Water Act 2003 ss24
33
Wylie
Irish Land Law 
(2010) (4
th
ed) Bloomsbury s.20.04 see also Bayley v Conyngham (1863) 15 ICLR 406, the successor tothe freehold are bound by these licenses.
34
Morrow v Carty[1957] NI 174

You're Reading a Free Preview

Download
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->