Fee Farm Grants
Fee farm grants are effectively freehold interests subject to rents and covenants. They are leases forever. They are relatively common in Ireland when compared with other common law jurisdictions.
The 2009 Land and Conveyancing Law Reform Act prohibit the creation of new fee farm grants. If an attempt is made to create a fee farm grant, it is deemed to create a fee simple interest, freed and discharged from and rent, and subject only to such covenants and provisions which are consistent with the nature of a fee-simple interest under the Act. Existing fee farm grants continue and may be transferred.
Feudal Fee Farm Grant
Feudal fee farm grant could be created by private individuals prior to 1290. After that, the Crown only could make such a grant, not being bound by legislation. A small number of such grants may still exist, especially in Northern Ireland and the northern counties of the Republic, where they were granted in the Ulster plantation, following forfeiture of the land of the native lords. The Crown granted the lands subject to a so-called chief rent or quit-rent.
The Crown purported to grant rights to create freeholds subject to rents, notwithstanding the statutory prohibition, under the Royal Prerogative. The power of the Crown to grant such exemptions and statute was abolished in 1688. In these cases, the tenant in chief entitled to the ultimate fee-simple might be an individual in the case of a grant created under the last mentioned powers.
Where there is feudal tenure (relationship) between the grantor and grantee, the feudal service is payment of the rent. At one time, the estate will revert back (escheated) to the Crown, where the want of an heir. The State succeeded to the Crown’s interest in the Republic of Ireland. The Succession Act now provides that the State holds the fee farm grantees’ interest as ultimate intestate successor.
Covenants in such grants will continue to run on the basis of the ancient feudal laws governing the relationship between freehold tenants and sub-tenants. Tenants do not hold under leasehold tenure, which later developed. The relationship is technically a vestige of the feudal lord and tenant relationship.
In theory, the fee farm grantee’s interest could be forfeited for non-payment of rent. Technically distress might exist for recovery of the rent. but this may be inconsistent with the Constitution and the European Convention on Human Rights.
Enfranchisement Fee Farm Grants
A further class of fee farm grant arose from the statutory grant of additional, longer-term rights (enfranchisement) to certain potentially perpetual leaseholders in the mid-19th century. In each case, the underlying leases were perpetually renewable. The legislation provided for the grant of a fee farm grant, effectively a lease forever, in lieu of the existing renewable lease.
One category covered certain such leases granted by the established church, with covenants to renew subject to payment of a fine on renewal. The Church of Ireland fee farm grants were created under the Church Temporalities Act 1833 and before the Irish Church Act, 1870 took effect. Another category of such conversion fee farm grant Trinity College, Dublin, Leasing and Perpetuity Act 1851, related to leases of land granted by the Governors of Trinity College. The 1833 and 1851 acts gave the lessees a right to a conversion fee farm grant.
Leases for lives renewable forever were perpetual interests, which equity protected by allowing renewals, even if the strict terms for renewal were not followed. Such interest developed from the 18th Century to some extent in order to circumvent the penal laws which limited the property rights which could be granted to a person who was not a member of the established church.
The most common form of conversion grant arose under the Renewable Leasehold Conversion Act 1849. This legislation applied generally to all existing lease for lives renewable forever. The 1849 Act created a general right to obtain a fee farm grant in place of the lease for lives. Many city centre titles are held under this type of title.
In each case, the fee farm grant created a freehold interest (effectively a lease forever), subject to a rent, a fee farm rent and to the covenants and conditions in the underlying lease for lives, and such supplemental covenants as may be applied.
New leases for lives created after the 1849 Act take effect as a fee farm grant. Leases for lives still subsisting in 1980 were converted into fee-simples interest practically equivalent to a new form of fee farm grant.
After the 2009 land law reforms, any instrument purporting to create a fee farm grant, or grant a lease for life or lives renewable for ever or for any period which is perpetually renewable, vests in the purported grantee or lessee a legal fee simple or, as the case may be, an equitable fee simple. Any contract for such a grant entered into after such commencement operates as a contract for such a vesting.
Lease For Ever Fee Farm Grants
The third and most common form of fee farm grant arose under the Landlord and Tenant Law Amendment Act Ireland 1860. This Act, consolidated and restated landlord and tenant law and is still largely in force and is commonly referred to as Deasy’s Act.
Deasy’s Act allowed the parties to contract for a lease on such terms as may be agreed. The Act allowed for the creation of a lease for ever. The earlier common law restrictions, including in particular the requirement that there be a reversion i.e., a separate landlord’s interest was not to apply. A lease forever, by definition a freehold interest and a fee farm grant could be granted.
The fee farm grant allowed the creation of a relationship between grantor and grantee, with all the covenants and conditions including the rent, that could be provided in a lease between lessor and lessee. The grantor did not own a reversion or any fee-simple interest. He had a right of entry to recover the fee-simple interest for breach of condition
Layers of fee farm grants and sub-grants could be granted in the same way as layers of leases and sub-leases.
Creation & Enforcement
It appeared that the creation of a new fee farm grant under the 1860 Act did not require words of limitation, being effectively leases. It was generally understood that the fee simple words of limitation were required for the transfer of the fee farm grantee’s interest, prior to the 2009 land law reforms Words of limitation are a strict formula of words which were required in a deed, in order to convey a fee simple/freehold estate.
In the case of the Church land conversion fee farm grants, rent is recoverable in the same manner as a lease. A statutory right of ejectment was granted under the 1849 act. Similarly, a statutory right of ejectment was provided in respect of Deasy’s Act grant. A Deasy’s act fee farm grant, being a lease for ever, may contain a forfeiture clause equivalent to that in the lease.
Ejectment is not permissible in relation to leases of dwelling houses, after 1978 reforms. In practice, ejectment would be rarely granted, given the likelihood of relief against forfeiture in most such leases.
In the case of conversion grants, the covenants and conditions in the original lease apply. The courts took the view that if the covenants (such as restriction on alienation) would have been void in relation to a fee-simple interest, it would be void in relation to such a fee farm grant. The 2009 Act upholds the alienability of such interest.
Covenants in a Deasy’s Act fee farm grant are as effective as leasehold covenants. Deasy’s Act grants were sometimes used by developers in freehold estates. Restrictions on transfer, which may be inserted in a lease were arguably void, as inconsistent with the inherent nature of the freehold interest. The general ground rents legislation applies to fee farm grants. Most covenants, save those preserved by law, are released on the acquisition of the fee simple interest.
An owner of land could grant/sell a freehold estate and reserve a rentcharge in his favour. A rentcharge is an annual sum paid by the owner of freehold land to the owner of the rentcharge, a person who need have no other legal interest in the land. No on-going relationship, leasehold or freehold, exists between the parties. The rent charge is an independent property interest. Words of limitation are required.
There was a common law right of action to recover the rent under a rentcharge. There was no right to take distress or to recover the land. A right of re-entry for non-payment could be provided. No statutory right of ejectment could be inserted. Covenants and conditions could be inserted, but they were subject to the usual restrictions on freehold covenants. A statutory right of distress was granted, which was abolished in 2009.
The right to buy out fee-simple interest applies in respect of rent charges. Separately, the Conveyancing Act allowed a special procedure whereby the capital value of the rent charge could be lodged in court, and property could be sold free from the rent charge.
The fee tail was abolished by the 2009 Land Law reforms. A fee tail was a freehold estate which in its purest form, provided for the passage of ownership through successive male heirs. It served as a mechanism to keep land within families over generations. However, it ran counter to the principle of marketability.
The estate was created by a conveyance to the grantee and the heirs of his body. The fee tail could not be transferred, either by deed or will. The estate passed to the descendants of the original grantee. If they died out, it would pass back to the original grantor’s descendants. It commonly provided that it must pass through a line of male, or more rarely female heirs.
To the limited extent that fee tails continued to exist, the old rules of descent applied to them. In the case of a fee tail in its simplest form, it passes to the male heir in accordance with the older ruled on succession. Methods were recognised by the court from medieval times to bar the fee tail, and effectively convert it into a fee simple interest. This was recognised and formalised by statute in 1834.
The grant of new fee tails was prohibited by the 2009 land reform act. The 2009 Act converted any existing fee tails into fee-simple. Any attempt to create a fee tail after the 2009 Act contains a, creates a fee-simple instead.
A common law, a fee tail was created by a conveyance of the grantee and the heirs of his body or an equivalent expression. The Conveyancing Act allowed the alternative formulation “in tail”, “in fee tail”, “in tail male”, “in tail female”, as the nature of the interest required.
The Succession Act, in an attempt to restrict fee tails, provided that they could be created only in a will, by the use of words of limitation, i.e. the above formula where generally a fee-simple would be created.
Tenants in tail have most of the powers of a fee-simple owner. They are not liable for waste. Waste is an unreasonable or improper use of land by the estate owner in lawful possession of the land. A party with another interest in the land may take legal action on waste committed by an individual who also has an interest in the land. Such disputes commonly arise between life tenants and remainder owner.
The fee tail owner could not create leases or rights which could bind their estate. They were granted powers to create leases for three lives, or 41 years, binding on successors by in tail, by 1634 Act.
Legal fictions developed in order to “bar” the fee tail or enlarge the fee tail into a fee-simple interest at common law. These developed very quickly after the right to create the fee tail was granted by concession in the late 13th century. By the 15th century, the method was well-established and involved a legal fiction.
The legal fiction was itself formalised in the Fines and Recovery Ireland Act 1834. The Act reflected the practice recognised by the court. By execution of a so-called disentailing assurance and enrolling it in the High Court within six months, the fee tail could be converted into something close to a fee simple. The subsequent descendants etc., who might otherwise have acquired the interest, did not receive compensation.
A power of sale was granted to the fee tail owner by the Settled Land Acts. This legislation gave powers of sale generally, to life tenants in landed estate simply to a settlement, so that the interests of the descendants attached to the purchase money.
A fee tail could continue for so long as there were heirs of the body of the original grantee. Therefore, each successive owner did not necessarily have to have issue, provided that they were other issue of the original grantee. If all the grantee’s heirs died out, then the lands would revert back to the original grantor.
A base fee might arise where a fee tail was imperfectly barred under the 1834 legislation or under its earlier common law equivalent. The issue in tail might be barred, but the descendants of the grantor may have a right if there ceased to be descendants of the grantee. The interest was saleable to third parties and could be left by will. However, if the descendants of the original grantee died out, it could terminate.
A base fee could arise where there was an imperfection in the common law or statutory conversion process, such as failure to enrol the deed or failure to obtain the consent of the life tenant. A number of mechanisms existed to convert a base fee into a fee-simple. A new disentailing assurance could be executed and enrolled.
Barring the entail required “the protector”, generally the life tenant or person entitled to the first freehold estate. If consent was not obtained, a base fee arose which barred the rights of these descendants, but not necessarily other persons entitled thereafter or the descendants of the original grantor. If the life tenant or other protector consented, the fee simple could be barred subject to the existing life estate.
In landed families, the life tenant and remainderman/son typically joined together to resettle the land and bar the entail.
Once the protectorship ends, the 2009 land law reforms converted the base fee into a fee-simple, where the life tenant was still in place. The interests are converted into equitable interest under a trust of land.
Waste is an unreasonable or improper use of land by an individual in rightful possession of the land. A party with an interest in land may take legal action where waste is committed by an individual who also has an interest in the land. Such disputes may arise between life tenants and remainderman.
An injunction may issue to restrain the waste. Damages may also be granted for waste. The four common types of waste are voluntary, permissive, ameliorating, and equitable waste. Voluntary waste is the willful destruction or carrying away of something attached to the property. In an action for voluntary waste, the plaintiff must show that the waste was caused by an affirmative act of the tenant. Such waste might occur if a life tenant (a person who possesses the land for his lifetime, after which a remainderman takes possession) chops down all the trees on the occupied land and sells them as lumber.
Voluntary waste will also occur, for example, if the tenant of an apartment removes kitchen appliances that are attached to the apartment floors and walls. More commonly, the tenant breaks a window, damages walls or woodwork, or otherwise damages the apartment. Landlords typically protect against this type of voluntary waste by requiring a damage or security deposit from the tenant at the commencement of the lease.
When the tenant vacates the apartment, the landlord inspects for waste. If the apartment has been damaged, the landlord will use part or all of the deposit for repairs. If the damage exceeds the deposit, however, the landlord may file an action seeking damages for the repairs not covered by the deposit.
Permissive waste is an injury caused by an omission, rather than an affirmative act, on the part of the tenant. This type of waste might occur, for example, if a tenant permits a house to fall into disrepair by not making reasonable maintenance /repairs.
Ameliorating waste is an alteration in the physical characteristics of the premises by an unauthorized act of the tenant that increase the value of the property. For example, a tenant might make improvements that increase the value of the property, such as remodelling a bathroom. Generally, a tenant is not held liable if she commits this type of waste.
Equitable waste is a harm to the reversionary interest in land that is inconsistent with fruitful use. This Cause of Action is recognized only by courts of Equity and is not regarded as legal waste in courts of law. For example, if the life tenant begins to cut down immature trees, the remainderman, who will someday take possession of the property, may file an action in equity seeking an injunction to stop the cutting. The remainderman would argue that the cutting imperils the productive use of the land in the future because the value of the land after the immature trees have been cut would be decreased.
In an action for waste, a plaintiff commonly will seek damages for acts that have already occurred and request an injunction against future acts. A court will order an injunction if it finds that irreparable harm will occur and that the legal remedy would be inadequate unless otherwise provided by statute. Certain laws provide for temporary relief if acts of waste are either threatened or committed.
The ordinary measure of damages for waste is the diminution in value of the property to the nonpossessor as a result of the acts of the possessor. This is frequently difficult to measure, particularly in situations where a significant period of time will elapse before the plaintiff is entitled to actual possession.
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