The Gazette 1981

APRIL 1981

GAZETTE

Occupiers' Rights: A New Hazard for Irish Conveyancers? by J. M. G. Sweeney Professor of Common Law, University College, Galway

O CCUPATION, as a result of recent English decisions, is rapidly assuming more importance in conveyancing than it has enjoyed since the middle ages. As the relevant common law and statutory provisions are almost identical on both sides of the Irish Sea, these cross- channel cases are of absorbing interest to lawyers here. The unreported Irish case of Northern Bank Ltd. v. Henry (1975 No. 3130 P. 175/78) is, in a sense, of a piece with these decisions, although it may formally be classified as an example of constructive notice arising, not from occupation, but from not investigating title (as to which see Cheshire's Modern Law of Real Property, 12th ed., particularly p. 66). In this instance, the readiness with which the Irish courts accepted the claim of somebody who was in fact an occupying wife with rights under an undisclosed trust may suggest that our judges would not be unreceptive to the conclusions of the two recent English cases we are about to examine. It has always been required of the purchaser to inspect the land. The Conveyancing Act, 1882, effected little more than a restatement of the common law position when by s.3(l) (i), it laid down that, to avoid being affected by notice, a purchaser must have made "such inquiries and inspections . . . as ought reasonably to have been made by him." Wylie, Irish Land Law para. 3.072, p. 104, commenting on this subsection, emphasises the need actually to visit the land: "The proper steps in most cases involve two matters of substance, inspection of the property concerned and an investigation of the title to it." More than 100 years ago, an Irish judge, Christian, L J ., in Carroll v. Keayes (1873) I.R. 8 Eq. 97, at 134, had strikingly illustrated the conveyancer's primary concern with the question: who is in occupation, when he laid down that when a purchaser The Rule in Hunt v. Luck

This occupational aspect of the doctrine of constructive notice is known as the rule in Hunt v. Luck. The limits of this rule were of scarcely more than vocational interest until it was sought to use it to solve that most topical of social problems, the protection of the deserted wife. One common situation is that of the "bare" wife who not only has no legal interest in the property, but has not even an equitable interest by virtue of, say, having made a financial contribution to the purchase of the house. If the property is registered, then the husband's* registration as owner is subject to what in Ireland are called "burdens which without registration affect registered land" but, in England, more concisely, "over- riding interests." Although the absence of litigation about these burdens in this country may tend to make us regard the task as a mere formality, Irish solicitors, closing sales of registered land, invariably obtain from the vendors statutory declarations to the effect that the lands are not subject to such burdens. S.72(l) (J) of the Registration of Title Act, 1964, includes among these burdens the following:— "the rights of every person in actual occupation of the land or in receipt of the rents and profits thereof, save where, upon enquiry made of such person, the rights are not disclosed;" This follows, almost verbatim, the wording of s.70 (1) (g) of the Land Registration Act, 1925, which still applies in England and Wales, and for convenience this paragraph will be referred to as "paragraph (g)." Except for the inclusion of the rights of a person "in receipt of the rents and profits," paragraph (g) is a statutory application to registered land of the rule in Hunt v. Luck. National Provincial Bank Ltd. v. Ainsworth [19651 A.C. 1175, decided that the right of a wife — qua wife — to reside in the matrimonial home was not a burden protected by paragraph (g). Where the wife has an equitable interest In another typical situation, whilst the husband may be the legal owner, his wife may have an equitable interest. Supposing the property to be unregistered, does the rule in Hunt v. Luck protect the wife from a sale or mortgage 103

"sees someone other than the vendor in possession . . . and makes no inquiry, he purchases under the legal presumption that that person has the fee, and when it afterwards turns out that he has some lesser interest than that, why so much the better for the purchaser — he is getting more than he presumably bargained for."