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existing legal estates such as life estates, estates
pur autre vie and "leases" for lives and/or years
would be equitable.
This type of "family" as
opposed to "commercial" interest would be over-
reachable under the settlements proposal.
In
addition various interests are capable of being
created by law, i.e. land obligations (see infra) in
fee simple or for a term of years, charges by way
of legal mortgage, rights of entry and possibilities
of reverter. All other interests are equitable.
(2)
Abolition of Feudal Tenure
This is proposed for abolition.
Since the
Tenure Abolition Act (Ireland) 1662 and sub
sequent reforms, the feudal system of tenure has
had little practical significance in Ireland, the only
theoretical concomitant now remaining being the
fact that all land is ultimately held of the Crown.
Accordingly the fee simple absolute in possession
becomes equivalent to absolute ownership. This
in turn makes possible the repeal of a number of
ancient statutes, including the redoubtable Quia
Emptores 1290.
(3)
Abolition of Entails
The entail which was modified but not abolished
in England in 1925, is proposed for burial in
Ireland. The strict family settlement has been
made virtually extinct by the successive charges
of estate duty, and entails can in any event be
barred. The proposal is,
therefore,
to convert
existing or future purported fees tail into fees
simple, a
similar provision
in New Zealand's
Property Law Act 1952 providing a useful pre
cedent. Only unbarrable entails and estates tail
after possibility of issue extinct remain, but these
become equitable and can only exist behind the
settlement provisions.
Settlements and Co-Ownership
A complete new and much simpler code is pro
posed to replace the Settled Land Acts 1882-90,
and the code is quite different conceptually from
English law as contained in the Settled Land Act
1925 and certain sections of the Law of Property
Act 1925. The basis of the code is that in all cases
where land is held for interests in succession a
trust is imposed and the legal estate is therefore
always
in trustees (not exceeding four in number).
This trust will be a simple trust unless a trust
for sale is specifically imposed. The trustees of the
trust land have extensive powers of delegation to
the life tenant. Existing settled land is converted
into land held upon the new "statutory trusts"
(i.e. a simple trust) but here delegation to the
tenant for life of managerial powers is automatic.
The tenant for life also must (a) be consulted
before a sale by the trustees and (b) has the right
to request a sale by notice to the trustees.
The trustees have all the powers of a beneficial
owner except as specifically
restricted by
the
statute. The settlement provisions comprise some
32 clauses as opposed to the 120 sections of the
Settled Land Act 1925 (plus some 11 more in the
Law of Property Act 1925) and it is our hope that
we have drafted a code which is simple yet flex
ible.
Co-ownership has been
reformulated on a
somewhat similar basis to English law. The legal
estate is always vested in not more than four
trustees as joint tenants, either on the statutory
trusts (see supra) or on trust for sale; a tenancy
in common may only exist in equity. This pro
vision is designed to prevent the fractionalisation
of the legal estate which can now occur.
Conveyancing Reforms
These are numerous and detailed. They include
(a) reduction of period of commencement of title
to 15 years (a similar reform having been intro
duced in England by the Law of Property Act
1969); (b) the absolute right of the lessee to call
for the title to the fee simple in proposed leases
of thirty-five years and upwards; (c) abolition of
need for words of limitation on conveyances of
fees simple; (d) abolition of requirement of selling
of deeds; (e) complete redrafting of the extremely
intricate implied convenants for title; (f) various
provisions as to costs being borne by the party
incurring the service, including one (likely to be
controversial) designed to stop the practice of
making the vendor's estate agent's commission
payable by the purchaser with whom there is no
direct contractual relationship.
Mortgages and Incorporated Hereditaments
A new and detailed code is proposed for mort
gages under which the only form permitted would
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