Freehold Legal Estate
Prior to the 2009 legislation, a great variety of legal estates could, in theory, exist. Most of those rights have now been transformed into rights under a deemed trust so that the relevant property is generally capable of being sold free from such rights, which accordingly, attach to the proceeds of a sale.
It is a fundamental principle of freehold ownership, that generally, it may be freely left to successors and may be sold. There are, however, exceptions and qualifications to these rights. The right to freely leave to whomsoever one chooses has been modified to some extent, by succession law. See the sections on succession in relation to the rights of spouses cohabitant ’s civil partners and children.
Most restrictions on the free saleability of freehold title to land are void. Restrictions which claim to limit the ownership and the right to sell to a limited group, are likely to be invalid. Generally, restrictions on the transfer of ownership are suspect and may be against public policy. Exceptionally, restrictions which shall leave the vast majority of persons as possible owners may be upheld.
Most freehold agricultural land in the State was acquired by the Land Commission in the period from the end of the 19th century to the middle of the 20th century and vested in tenant farmers. See the separate section on the Land Acts and the Land Commission.
The Land Commission had powers to oppose restrictions on persons who acquired land from it. The condition could be imposed to require the person in whom title was vested, to reside continuously on land to the satisfaction of the Land Commission. This was upheld on a constitutional challenge. Most such restrictions were repealed in 2005.
The 2009 legislation declares the general principle that fee-simple interest is freely alienable. An argument might be made that this applies only to ordinary fee-simple,s but are not those subject to special conditions and restrictions.
Housing legislation has traditionally replaced restrictions on ownership of land vested by housing authorities in former tenants. Typically there is a period during which the land may not be sold or transferred, without the consent of the Local Authority. The purpose is to ensure that the person does not become subject to social housing rights again. Many of these limitations have been reduced or removed. For example, the standard restriction on local authority tenant-purchased houses requires consent to transfer for a period of up to  years.
Words of Limitatio
Formerly, special words were required to create and transfer a freehold estate. If the correct words were not used, a life estate only would pass. This was irrespective of the intention of the parties to the deed. The requisite wording required that the deed be transferred to the “purchaser and his heirs”. The Conveyancing Act, 1881 allowed the substituted words, “in fee simple”. The wording applied to transfers to individuals, but not corporations.
Another relatively arbitrary aspect of freehold deeds, arose from the so-called Statute of Uses. Where land was conveyed without payment of the full money, the Statute of Uses presumed there to be a use (a predecessor to the modern trust) in favour of the transferor, so that the deed could be ineffective. In this case, special wording was required to make it express that the conveyance was to be absolute. This additional wording, to satisfy the Statute of Uses, came to be inserted in most freehold deeds, even for purchased properties, in order to remove any doubt as to the issue.
A conveyance of (even) the equitable interest in property required strict wordings. This was modified slightly, so that strict wording would only be required, if technical language was used. Strict wording is not required in wills. Wills have always operated with reference to the intention of the deceased maker.
Wills are only title documents in relation to the conveyance of freehold unregistered title, prior to 1959. In other cases, and in all cases since 1959, the title passes to the party to whom a grant of representation issues.
Registered title land passes by completion of an instrument of transfer in the prescribed format. Strict words of limitation were never required and the transferor transfer the entire registered estate unless a contrary intention is clearly expressed.
2009 Act Reforms to Words of Limitation
The 2009 Act provides that in a conveyance of an unregistered estate without words of limitation, the fee-simple or other interest of the grantors is presumed to pass unless a contrary intention appears. This provision also applies to conveyances made before the 2009 Act. This is without prejudice to anything done or interest disposed of, or acquired in consequence of the failure to use the required words.
Where an interest is acquired prior to the commencement of the 2009 Act, due to the failure to use the correct words of “limitation”, that interest is extinguished unless the person concerned applies to court, obtains an order and registers that order within 12 years.
The court may make an order declaring that the applicant is entitled to or has acquired the interest. It may refuse to make the order if it is satisfied, that no substantial injustice would be done to any party. In lieu of declaring entitlement, it may order that the person entitled to the interest, be paid compensation as the court thinks appropriate.
The 2009 Act abolished the so-called “rule in Shelley’s case”. This was an ancient rule which deemed there to be a grant of a freehold estate in a case, where it might not appear at first sight to have been intended. If for example a life interest is given to A with remainder (i.e., the future interest) thereafter to his “heirs” it was presumed that A was to obtain a freehold estate (instead of a life interest together with a freehold interest for his heirs). This could even occur where there was another interest between the apparent life estate and the later estate to that person’s heirs.
The 2009 Act abolishes the rule and provides that when an interest in land is given to the heirs of a particular heir or class of heirs or issue of a person, those latter persons are to take their inter under the deed separately. Therefore, in the above circumstance, the first person will obtain a life interest and his heirs will take an immediate future interest. The interest will of course be held under a trust of land. The above mentioned provisions which apply to the failure to use the correct words of limitation, also apply in this case. There is a similar provision for application to the court within 12 years by persons thereby prejudiced.
Where in relation to unregistered title, the word “heirs” is used as a word of limitation (i.e. to define the estate passing) it takes effect in the same way as a common law deed (gives a freehold deed to the person named, and nothing to his heirs). Where the word “heirs” is used as a word of purchase, it may give a future interest to the heirs concerned.
Where the word “heirs” are used in a deed as word of purchase, then unless a contrary intention appears, they are interpreted to mean the persons who would be entitled on intestacy, if the prior ancestor had died without a will.
Prior to the 2009 Act, it was possible to create determinable fee-simple estates and fee simple estates, subject to conditions. A freehold estate could be granted on terms that it is determinable or is subject to a condition. After the 2009, such interests can only take effect under a trust of land.
A determinable fee (freehold estate) ends automatically on the occurrence of the condition. Some words in the deed of grant are consistent with the determinable fee. Other words are consistent with a conditional interest. The courts are more willing to find a conditional interest, as it does not lead to automatic termination of the ownership right.
A determinable fee ended automatically on the happening of the relevant event. Words like “until”, “as long as”, “during”, or while might imply a determinable fee. In contrast, words like unconditional, provided that, both, if etc., were likely to be interpreted as a conditional fee.
Determinable fees end automatically on the occurrence of the defined event. This is why the Court leans against defining them. The statute of the limitations issue does not arise. The right of the grantor or successors is a so-called possibility of reverter. The right could not be transferred at common lawl. It would appear to be freely transferable after 2009 reform.
Determinable rights are much more easily created under a trust. The trust may specify to whom the land will pass, in the event that the condition fails. In this way, it is more flexible than a conditional estate. If nothing is specified then the asset potentially reverts to the person who made the trust.
Conditions may apply to the vesting of the interest in the first place conditions precedent) or they may apply after it is vested (conditions subsequent). It is a matter of interpretation of the grantor’s intention, as to which class of interest applies. If a condition of its nature applies at a point in time at the outset, it is more likely to be a condition precedent (a precondition). If it is an on-going obligation, it is more likely to be a condition subsequent.
A conditional fee does not end automatically if the condition is broken. It gives the grantor or his successors a right of re-entry which must be asserted. It was not possible to create rules by which the land would pass automatically to a third-party on breach of the condition. If the condition is void as being against public policy, it is simply struck out and the fee-simple interest comes absolute.
A further important practical point is that the right of entry, is itself subject to the Statute of Limitations. Once this period of 12 years expires, the right to re-enter terminates and the estate becomes absolute. The right of entry for a condition broken, is now freely assignable. Prior to the 2009 Act, it could only be transferred by will or on intestacy.
Public Policy Issues
The courts did not regard such conditions with favour, as they could lead to the defeasance of an established and vested interest. The conditions were in some cases, because of the terms of the condition itself, held to be objectionable and void as against public policy. If they were not severable, they fell away and an absolute interest would be taken. It is possible to obtain relief against forfeiture for breach of condition provided, that there is no gift over under a trust to anoher.
The condition might be void because it sought to restraint sale or limit the grantee’s freedom in an overly broad way (e.g. marry only a very limited class). In modern times, it might be found to be in breach of public policy because it is unlawful discriminatory (e.g.in racist terms). After the 2009 Act, it is still possible to create a fee-simple interest subject to conditions.
The conditions applicable to both determinable estates and estates subject to a condition, may be in terms that are against public policy. Attempts to make land inalienable (i.e. incapable of being transferred) are potentially invalid on public policy grounds. A limitation restricting sales / transfers to a limited number or class of persons, may be valid provided that it does not constitute unlawful discrimination against public policies. If they are too narrow, they might amount to an invalid restriction on transfer.
If the sale restriction is permissible in not unduly restraining transfer, may be challenged on discrimination and human rights grounds. Conditions which provide that a person must reside or occupy the property, may be invalid, in some cases. It will depend on the particular circumstances, whether it is against public policy. In some such cases, the restrictions are found to be void for being insufficiently certain. In other cases, they are not capable of being fulfilled or may be frustrated by a party with an adverse interest.
Conditions that requires a person to take up the donor / testator’s name may be valid in some cases. In some cases, it may be void for uncertainty in so far is it is a continuing obligation. Where the condition is simply applicable or not at the outset, there is less of an issue.
It is relatively easy to assume a surname. Arms grants may be obtained from the Chief Herald of Ireland. Arms are ancient rights and their status in modern Ireland is unclear.
Complete restraints on marriage are almost always void as against public policy. Partial restraints (i.e., limiting the category or time when a person may marry) may be potentially valid. If they are interpreted as providing for the person until he / he marries, then they are much more likely to be upheld. In the 19th century, gifts subject to a condition (commonly not to marry a Catholic) were upheld in particular circumstances, at least subject to some conditions.
After the Constitution, questions may arise whether any restriction on the right to marry is consistent with the Constitution at all. The requirement that a person be brought up and /or remain in a particular religion, are potentially subject to chance on the grounds of uncertainty or unlawful discrimination. Legacies and benefits given to children on condition that they are brought up in a particular religion may be held invalid on the basis that it infringes the parents’ right to educate children as they see fit.
The Equal Status Act provides that a person must not discriminate on the grounds set out, in disposing of any estate or interest in a property. Prohibited grounds are gender, family status, marital status, sexual orientation, religion, age, disability, race, colour, nationality, ethnic, or national origin. Dispositions by will or gift are exempted.
Transfers of an estate or interest on terms by which they are not available to the public generally or to a section of the public may in some cases be valid. Provision for accommodation for a person in a part or a self-contained part of a person’s home may be valid. Different considerations arise where it affects his private or family life, or other persons residing in the house.
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