The Gazette 1993

GAZETTE

0 0 K

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

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