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NOVEMBER 1993
Report on Land Law and
Conveyancing Law: (5)
Further General Proposals
Law Reform Commission, 1992,
23pp, paperback, £6.00.
As the title indicates this is the fifth in a
series of reports issued since 1989 by
the Commission on the subject of
reform of our land law and
conveyancing system. In preparing
these reports the Commission has had
the guidance of a Working Group of
experts, including several very
experienced practitioners. The result has
been a wide range of recommendations
which are eminently sensible and
which, if implemented, would remove
the flaws in our current system which
cause most problems.
The Report under review is no
exception. Its recommendations are
grouped into three categories. The first
contains those relating to simplification
of conveyancing generally. One
addresses the problems created by the
Land Registry requirement that a
company document lodged for
registration should have been executed
under the seal of that company.
Generally this does not cause a problem
where the company in question is an
Irish or UK company, because a
company seal is usually used in such
cases, but problems do arise where the
company is based in a jurisdiction
where it is not usual to have a corporate
seal, such as the Netherlands. The
Commission recommends that the
registering authorities should be able to
accept that a document has been validly
executed if that execution complies with
the legal requirements of the
jurisdiction in which the executing body
is incorporated.
Another recommendation is the
amendment of sections 10 and 12 of the
Trustee Act, 1893, to enable new
trustees of an unincorporated
association like a club or community
organisation to be validly appointed by
a majority of members present at a
general meeting (without the need for
appointment by the last surviving
trustee or that trustee's personal
representative, as required by section
10) and a copy of the resolution,
certified by the chairman of that
meeting, to operate as a vesting deed
relating to the association's land (for the
purposes of section 12).
The third recommendation in this
category is one long overdue, namely,
abolition of the need for words of
limitation in conveyances of
unregistered
land. This change was
made in England in 1925 and for
registered
land in Ireland by section 123
of the Registration of Title Act, 1964.
The Commission decided not to take up
one further suggestion made by Mr
Mervyn Taylor
TD, that one joint tenant
should be able unilaterally by notice to
sever the joint tenancy and thereby
convert it into a tenancy in common.
The TD had in mind the situation of the
family home of a husband and wife who
have separated, but the Commission
concluded that the solution suggested
might cause more problems than would
solve and anticipated, rightly, that the
matter would be overtaken by proposed
legislation. The Matrimonial Home Act
recently passed by the Oireachtas
changes the position of spouses
dramatically in relation to the family
home by giving each spouse equal
rights of ownership to the home and
household effects, unless they agree
otherwise.
The second category of recommenda-
tions involves rectification of anomalies
arising from modern legislation. One is
to amend the Planning Acts to give
Planning Authorities jurisdiction to
grant planning permission in respect of
development of land below the high
water mark (within a three mile zone),
eg, for a jetty ; another is to amend the
Companies Acts to provide that all
charges created by an overseas company
owning land in Ireland (but
not
having a
place of business here) should be
registered on the charges register in the
Companies Office (this would now
catch, for example, equitable mortgages
by deposit not registerable in the
Registry of Deeds). A third
recommendation involves amendment
of section 90 of the Registration of Title
Act, 1964, which is the section enabling
a transferee of registered land to deal
with it before the formalities of regist-
ration of the transfer are completed. The
amendment recommended is twofold:
first, to extend such dealings to the
granting of leases (thereby facilitating
sale and leaseback arrangements) and,
secondly, to clarify that such dealings
may involve part only of the and
transferred.
The third category of recommendations
relates to landlord and tenant law and
deals with various aspects of the
Landlord and Tenant Acts, legislation
which continues to cause a multitude of
problems. One recommendation is
designed to reverse the effect of the
Supreme Court's ruling in
Fitzgerald v
Corcoran
[1991] LLRM 545 that a
sporting or recreational club may have
the right to acquire the fee simple in its
clubhouse and ancillary areas. The
Commission takes the view that such an
organisation's statutory rights should be
confined to obtaining a sporting lease
under the Landlord and Tenant Act,
1971, or, if there is to be the right to
acquire the fee simple in some of its
land, it should remain subject to the
covenants restricting user to sporting
etc, activities, in accordance with section
28 of the 1978 (No 2) Act. Section 28
is, of course, a particularly troublesome
provision and, indeed, the Commission
had earlier drawn attention to its
apparent effect on collateral covenants
(see also
Whelan
v
Cork Corporation
[1991] LLRM 19, affd Supreme Court,
15th November 1990) see
Report on
Land Law and Conveyancing Law: (1)
General Proposals
, LRC 30 - 1989,
351