The Gazette 1993

GAZETTE

would be highly interesting to learn

more of the circumstances which

enabled such tenants to erect, and retain

possession of, their houses on the basis

of such a precarious interest in the site!

Accordingly, the 1967 Act gave a right

to acquire the fee simple to a person

who, by himself or his predecessors in

title, had been in continuous

occupation as yearly tenants for all of

the preceding 25 years at a rent less

than the RV, if,

inter alia,

the buildings

had been erected by the tenant whilst

in occupation (there was a presumption

in the tenant's favour to this effect).

This provision comprised only those

properties which were at all material

times yearly tenancies. After the

Landlord and Tenant Commission had

made its recommendations", s. 15 of

the 1978 (No. 2) Act, 1978 made it no

longer necessary for the applicant to

have held under a yearly tenancy for

all of the 25 years. Provided the land

has been held continuously for at least

25 years, it can have been held under

any one or more of the following:-

(a) a yearly tenancy arising by express

agreement;

(b) a yearly tenancy arising by

operation of law or by inference on

the expiration of a lease; or

Rent Restrictions Acts implied by

holding over property on the

expiration of a lease reserving a

yearly rent.

One unobstrusive but important change

is that a purchasing tenant is no longer

required to be in occupation. The rent

must be less than the rateable valuation

at the time the acquisition is begun but,

by s.9 of the 1984 Act, the rent/RV test

need not be satisfied if there is proof

that the buildings were erected by the

tenant or a predecessor in title. These

provisions enable a yearly tenant to

acquire the fee simple, but not a

reversionary lease.

Some Suggested Reforms

Whilst the Constitution, and the

European Convention of Human

Rights, may prevent the proposed

abolition of domestic ground rents, it

would seem unquestionable that,

politically, the momentum for further

reform of the system, in the tenant's

favour, will continue. The writer feels

that, even if the radical reforms

proposed are abandoned, there are still

ample opportunities for reform within

the system.

. . . it would seem . . . that politically,

the momentum for further reform of

the system in the tenant's favour will

continue.

One might perhaps commence with the

rent/RV test. If the rent is less than the

RV, this will in most cases indicate a

low rent and, therefore, very likely a

ground rent. But is it not unnecessarily

restrictive to be confining holders of

long leases and yearly tenants to

situations where such low rents apply?

Would it not be a welcome extension

of the compulsory acquisition system

to give the tenant a choice so that, if he

could not meet the rent/RV test, there

would be some other more generous

test which might accommodate him? It

does not seem likely that a test as

severe as the rent/RV test could absorb

that many ground rents so what other

test could be available as an option to

the tenant?

Generally, the rent fixed by the Circuit

Court for a reversionary lease is one

eighth of the "gross rent", reduced,

where appropriate, by a special

allowance for works carried out by the

lessee or his predecessors in title. For

such purposes, the "gross rent" is, in

general terms, the Court's estimate of

the rack rent for the property. The

writer suggests that if the tenant could,

as an alternative to the rent/RV test,

qualify under ss.l0(2) or 15 (as amend-

ed) of the 1978 (No. 2) Act if his rent

were less than one eighth of the "gross

rent", this would enable many more

tenants to enlarge their estate into fees

simple than are at present eligible

If the writer were to go on to suggest

that, where the rent/RV or alternative

test available is complied with, and the

other statutory requirements are met,

the tenant should be

conclusively

entitled to enfranchise, such a

suggestion might appear to reflect a

bias in the tenant's favour. However,

the European Court of Human Rights,

j citing the US Supreme Court's support

| for state legislation for the compulsory

! transfer of title from lessors to lessees

| in the interests of reducing the

concentration of land ownership, has

already indicated

that taking the

leaseholder's side in this issue is not

necessarily a breach of the European

Convention of Human Rights.

Our Irish system appears to differ

greatly from that of our English

neighbours in the importance the

former attaches to proof of who erected

j the buildings, tempered though this

may be by presumptions in the tenant's

favour. When, for example, the

Landlord and Tenant Commission

| recommended

that a leaseholder

under a long lease at a low rent (from

which it could be inferred that the

lessor did not erect the buildings)

should be entitled to claim a reversion-

ary lease, it did not, expressly at least,

include in its recommendations the

I requirement, now found in condition 2,

| that the buildings were not erected by

| the lessor. It is as a result of such

arguably excessive requirements that

Irish applicants have to agonize over

who erected buildings dating, for

example, from 1750

- and beyond -

whereas if a test such as the rent/RV

test were conclusive, they would be

! spared such interesting but arduous and

expensive enquiries. It is also suggest-

ed that, instead of requiring a term of

not less than 50 years, condition 2

should follow the English example and

require only a lease granted for a fixed-

term exceeding 21 years

Critics of enfranchisement sometimes

! forget that the ground rent system often

inflicts severe hardship on the tenant

| without conferring any benefit on the

landlord. Too often they seem to

presuppose a landlord and a tenant,

each fully conversant with his rights

and their value, who need be left only

to market forces for justice to prevail.

However, experience shows that the

freehold reversion is often of no value

to the owners, whose whereabouts may

be unknown and who may not even

[ know of its existence. This results in

! the property being afflicted by a bad

title which is like a sentence of death

| since properties must be marketable if

they are not to fall into decay. To the

conveyancer not the least attractive

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