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GAZETTE
JULY/AUGUST 1993
. . . the ground rent system often
inflicts severe hardship on the tenant
without conferring any benefit on
the landlord.
feature of the ground rent legislation is
the mechanism it provides for solving
certain conveyancing problems which
would otherwise be insoluble. Thus, '
Professor Wylie says of the vesting
certificate which by virtue of s. 22( 1)
; of the 1978 (No. 2) Act operates to
convey to the applicant free from
j incumbrances the fee simple and any
j
intermediate interests in the
dwellinghouse:-
"The vesting certificate has sweeping
effect. It conveys all relevant interests
to the applicant free from all
incumbrances. It affects interests of
i all persons, even those who are
! unknown, under disability or simply
; not joined
21
."
| Similarly, s. 8 of the 1967 Act confers
on the County Registrar, when hearing
applications to acquire the freehold
1
reversion both in the case of
dwellinghouses and businesses, like
powers of overcoming conveyancing
difficulties. By means of the
j
overreaching device the Registrar of
i Titles, or the County Registrar, as the
case may be, becomes an alchemist, by
statute enabled to solve the problems
of pyramid titles by almost literally
turning them into gold. For an
! equivalent of the extraordinary power
to vest an indefeasible title in the
purchaser, possessed by each of these
officers, one has to recall the Landed
Estates Court conveyance the effect
I of which was so eloquently brought
| to life by Christian LJ in
Re
\ Tottenham's Estate
22
when he described
how
". . . by a sort of conveyancing
magnetism, it would draw . . . from
the absent, the helpless, the infant, the
married woman, the mentally
imbecile, nay, even the unborn, every
| particle of estate and interest, legal or
j equitable, present and future, known
j
or unknown, patent or latent, in the
! land expressed to be conveyed, and
I would concentrate the whole in the
I purchaser, freed from everything the
conveyance itself did not save."
Footnotes.
1. Although even a yearly tenancy could be
subject to a ground rent, and the practice
varied so much as to provide little
guidance, in
Finn
v.
Barry
[1941] IR,
450, 465, Johnston J. stated that 99
years had been regarded for 150 years as
the customary period of a "building
lease". There was a higher rate of stamp
duty on leases for a term exceeding 100
years: Stamp Act, 1870, Sched., Stamp
Act, 1891, 1st Sched.; and, although a
term of 100 years was not subject to the
higher duty, 99 years was adopted for
safety. In
McKenna
v.
Stack,
74 ILTR
91, 177, the applicant for a reversionary
lease claimed that it was the invariable
custom of the Listowel Estate office to
grant leases for 100 years only.
2. It would be no less dangerous
prematurely to describe a yearly tenancy
as "as good as freehold" as occurred in
Kehoe v.
C.J. Louth & Son
[1992]
ILRM 282.
3. The Minister replied similarly to another
Parliamentary Question on 30 January,
1992 and confirmed that the
Government had no plans for a
referendum on the abolition of ground
rents.
4. "Review of the Fianna Fail-Progressive
Democrats Programme for Government
1989-1993", pp. 8-9. The text of the
Programme, first agreed in July, 1989,
was released on 19 October, 1991.
5. Thus, the current Minister for Justice,
Ms. Maire Geoghegan Quinn, replying
to a Parliamentary Question on 10
February, 1993, not only omitted all
reference to the proposals of the
previous Government but pointed out
that the existing law "provides a ready
means by which any person can abolish
the ground rent payable on a
dwellinghouse". She told how, already,
about 60,000 householders had availed
themselves of that opportunity and,
significantly, reminded the Deputy with
whom the P.Q. had originated, that "any
proposal to abolish ground rents without
compensation would not be in keeping
with Constitutional requirements."
6. The ground rent legislation referred to in
this article as "the 1931 Act", "the 1943
Act", "the 1958 Act", "the 1967 Act",
"the 1978 Act", "the 1978 (No. 2) Act",
"the 1980 Act" and "the 1984 Act", are
the Landlord and Tenant Act, 1931, the
Landlord and Tenant (Amendment) Act, .
1943, the Landlord and Tenant
(Reversionary Leases) Act, 1958, the
Landlord and Tenant (Ground Rents)
Act, 1967, the Landlord and Tenant
(Ground Rents) Act, 1978,the Landlord
and Tenant (Ground Rents) (No.2)
Act, 1978, the Landlord and Tenant
(Amendment) Act, 1980 and the
Landlord and Tenant (Ground Rents)
(Amendment) Act, 1984.
7. On the assumption that the definition in
the 1978 (No.2) Act would apply,
this would include a fee farm grant:
Wylie, Irish Landlord and Tenant Law,
35.9n„ 36.16n.
8. By s. 2( 1) of the 1978 Act, a lease (other
than a reversionary lease) of a dwelling
made after the passing of that Act, shall
be void if the lessee would, apart from s.
2, have the right to enfranchise. The Act
came into force on 16 May, 1978.
9. The 1931 Act was the first attempt to
deal with this problem which succeeded
in getting on the statute book, but it was
not, of course, the first attempt. A series
of bills similar in conception to the 1967
Act and commencing with the
Leaseholders (Facilities for the Purchase
of the Fee Simple) Bill,1883 were
introduced in the House of Commons
and the Dail before the 1931 Act
became law.
10. Supra; n.l.
11. The words emphasised were deemed to
be inserted by s2(i) of the 1943 Act.
12. Report on Reversionary Leases under
the Landlord & TenantActs
(Pr.2532,1954) para. 73.
13. Ib.,para.77.
14. Report on Ground Rents (Pr 7783,
1964), para. 61, p.20.
15. Report on Certain Questions arising
under the Landlord and Tenant Acts,
1958 and 1967 (Prl. 59, 1968), para.131.
16 In England, the "low rent" needed to
qualify a "long tenancy" for enlargement
was, in the case of certain tenancies,
defined by s. 4(1) of the Leasehold
Reform Act 1967, not only by reference
to a rent/RV test but to the letting value
as well of the property. However, the
difficulty of comparing the English with
the Irish code, at least as the latter
applies in provincial towns, is
highlighted as one read in
Manson
v.
Duke of Westminster
[ 1981 ] QB 323 at
326 that the London house in question
which the tenant held subject to a
controlled rent of £100 per year and had
acquired in 1973 for a premium of
£18,500, had a rateable valuation of
£1,076.
17. Case of James (Case No. 3/1984/75/119,
European Court of Human Rights, 21
February 1986) citing
Hawaii Housing
Authority
v.
Midkiff,
467 US 229 at 241
ff,81 L Ed 2d 186 at 198 ff (1984).
18. Report on Certain Questions arising
under the Landlord and Tenant
Acts,1958 and 1967 (Prl. 59,1968),
para. 68.
19. As in
Barry
v.
Registrar of Titles
[1992] ILRM 62.
20. Leasehold Reform Act, 1967, s. 3(1).
21. Op.cit, 36.213n.
22. (1869)IR 3 Eq. 528.
*J.M.G. Sweeney is Professor Emeritus of
Common Law, University College Galway
and Consultant Solicitor, Murray
Sweeney, Solicitors, Limerick.
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