103 / 298
GAZETTE
APRIL 1981
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.
The Rule in
Hunt v. Luck
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
"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."
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