The Gazette 1989

GAZETTE

DECEMBER 1989

restoring the statutory power of

partition and empowering the court

to order a sale of property in lieu of

partition.

Perpetuities

The Commission has indicated that

it is taking a serious and detailed

look at the Rule Against Perpetu-

ities. As an interim measure, it

recommends that easements,

options, profits a prendre and rent

charges over land should be

removed from the effect of the Rule

Against Perpetuities and that any

such amendment to the law should

provide that the Rule never applied

to those interests.

Words

What is in a word? At present,

there are few statutory provisions

which can help conveyancers in

interpreting certain key words like

"mo n t h ". The Supreme Court

decision in

Vone Securities -v-

C/arke

(1979) highlights the

problems involved. Thus, the

Commission sensibly suggests that

legislation should be enacted which

gives legal meaning to a number of

key words and phrases (such as

expressions of person, distance

and time).

Judgment Mortgage

Anyone interested in property need

not be reminded of either the im-

portance of judgment mortgages or

the complicated state of the law on

judgment mortgages after the

Tempany -v- Hynes

decision. The

Commission believes that, for the

purpose of judgment mortgages,

when a binding contract for the

sale of land has been entered into,

the law should treat the beneficial

ownership as having passed to the

purchaser from the time the con-

tract was made, subject to the

condition subsequent that he com-

pletes the sale.

Joint Tenancy

The Commission has suggested

that freehold land should be sever-

able and convertible into a tenancy

in common by a simple deed

between the parties in the same

way as a leasehold estate may be

severed.

Bain -v- Fothargill

As a general rule, if there is a

breach of contract by the vendor

then the purchaser is entitled to

damages. However, based on the

decision in the case of

Bain -v-

Fothergill,

where the breach relied

upon by the purchaser is the

vendor's failure to show good title

then, provided the vendor was not

fraudulent or acting in bad faith, the

purchaser is not entitled to recover

damages for loss of bargain but is

limited to recovering the deposit

and

so l i c i t o r 's

fees.

The

Commission believes that the rule

Bain -v- Fothergill

has outlived its

usefulness

and should

abolished. It is difficult to disagree

with the Commission on this point!

Forfeiture

Section 8 of the Forfeiture Act

1870 states that a convict may not

make any disposition of property

while in prison. This provision is not

only of little significance in practice

but probably unconstitutional as

well. The Commi ss i on has

recommended its abolition.

RECTIFICATION OF ANOMALIES

ARISING FROM MODERN

LEGISLATION

Planning

Section

27 of the

Local

Government

(Planning

and

Development) Act 1976 allows for

the High Court to prohibit the

continuance of the development of

land for which planning permission

is required and which is being

carried on without permission. This

is a provision of considerable

practical and political significance.

The Commission has recommended

that it be amended (a) by extending

the provisions of S.27(1) (a) to

cover development which has been

completed without the necessary

planning permission and (b) to

include in the section, a five year

limit on the bringing of applications

whether in respect of develop-

ments or unauthorised uses. Both

of these proposals, particularly the

second, are quite sensible and

would reduce a house buyers's

cost (but would they also reduce

the house buyer's protection?).

Land Act 1965

S.45

Section 45 requires an "unqualified

person" (within the meaning of the

section) who acquires an interest in

land not situated in a county bor-

ough, borough, district or town to

obtain the consent of the Land

Commission to the vesting of the

land in him. Most trading

companies would be "unqualified

persons". The problem is that

"rural areas" are being built up.

Shopping centres such as those in

Dundrum,

Ra t h f arnham

Stillorgan are in rural areas and the

WORLD

FAMOUS

BRAND

NAMES

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S M I T H *

CORONA

BUSINESS ELECTRONIC

EQUIPMENT

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Tel: (01) 509044

Long Mile Road,

FAX: (01) 509744

Dublin 12

4 49