The Gazette 1976

GAZETTE

January 1976

Maurice Curran, solicitor

This book is the first comprehensive Treatise on Land

Law in Ireland and will be welcomed with delight by

practitioners and law teachers concerned with this

branch of the law and by every student. One might

imagine the differences between Irish Land Law and

English Land Law (with the large exception of the

1925 Property Legislation in the United Kingdom)

were not too great and that, by careful use of the Split

mind that all Irish Students learn to develop when

using English Text Books, one could be fairly confident

that one had a fair grasp of Irish Land Law. Having

read Mr. Wylie's great work, this illusion is shattered.

There are enormous areas, the Land Acts, Registration

of Deeds and the Law of Landlord and Tenants spring

immediately to mind, where Irish Law is substantially,

and indeed at times in its basic nature, quite different

from that of our near neighbours.

Not only is this a useful book for the Student of

Land Law but will be exceptionally useful to students

of Equity and Succession—two areas in which one was

most unhappy endeavouring to rely on English Text

Books because of the 1925 legislation in England and

the Succession Act in Ireland.

The author has not restricted his researches to

Ireland and the U.K.: there are references to Australian

Law and in particular one was interested to learn that

some Sections of our 1961 Charities Act are based very

closely on Australian precedents. The Table of

Periodicals includes

American Law Journals, Historical

Reviews, The South African Law Journal,

the

Sydney

Journal, The Jrish Ecclesiastical Record

and

The

University of Malaya I

Review

amongst others.

Turning to the contents, the first Chapter is a

brilliant sketch in less than 50 pages of the history of

Irish Land Law. There is copious citation of sources

and a teacher of Legal History using these sources and

this Chapter will not be found wanting by his students.

It is interesting to learn that the ancient Irish Patron/

Client relationship was terminable at will and based on

contract not tenure (as it was of course in the feudal

system) which was an early indication, perhaps, of the

approach adopted in Deasy's Act many centuries later

in which the relationship of Landlord and Tenant is

also based on contract (page 8).

The Chapter dealing with Fee Farm Grants and

leases for lives is excellent. This Reviewer was un-

familiar with the Tenantry Act (Ireland) 1779 dealing

with leases for lives with covenants for perpetual re-

newal, which confirmed the views of the Courts that

the estate granted to the tenant was intended to be

perpetual. This Act is still in force. The text does not

appear to state whether this right to renew, which would

now presumably produce on renewal a Fee Farm

Conversion Grant, is an equitable right to a Fee Farm

Grant or a mere equity.

The distinction between a mere equity and an

equitable interest, which is very much an Irish develop-

ment and rates very little comment in Megarry &

Wade on the Law of Property, is discussed in detail

on page 106. The writer appears unhappy, in this

reviewer's opinion quite rightly, at the extension of the

of the doctrine of mere equities in Ireland, which often

means that an interest which in England would be

treated as an equitable interest in land is here treated

as a mere equity. This question arises mostly in con-

nection with priorities and the writer makes strenuous

efforts in the chapters on priorities, both as regards

the doctrine of notice and as regards the Registration

of Title and Registration of Deeds Acts, to reconcile

Irish Court decisions with the equitable principles and

maxims. The decision in

Tench

Molyneux

—(1914)

48 ILTR—is discussed and one gets the impression

that the author is not entirely happy with the line of

decisions that followed from it, including

Devoy v.

Hanlon—(1929)

I.R.—and

Re Strong—

(1940)

I.R.

In this connection it is good to be reminded of

Section 75 Sub-section (2) of the Registration of Title

Act 1964 which provides "where a registered Charge

is expressed to be created on any land for the purpose

of securing future advances (whether with or without

present advances), the Registered Owner of the Charge

shall be entitled in priority to any subsequent Charge

for the payment of any sum to him in respect of such

future advances which may have been made after the

date of, and with express notice in writing of, the

subsequent Charge". McAllister in his book on Regis-

tration of Title comments on this Section as follows: —

"It appears that the fact that the registration of a

subsequent Charge is not notice within the meaning of

Section 75 (1) of the Act. (In McAllister the reference

is to Section 76 (1) but this is clearly a typographical

error). The entry of a Caution or Inhibition in the

the owner of such subsequent Charge would appear not

to be notice. The owner of such Charge for future

advances can safely continue to lend money on the

security of the Charge in priority to any subsequent

registered Charge: Section 74 of the Act. The only

notice that he would appear to be affected by would

be express notice in writing of the creation of a sub-

sequent Charge; so that advances could be safely made

on the security of his Charge until such notice was

received by him".

With regard to unregistered land, the Author states (at

page 647) that no further advances will secure priority

over a subsequent mortgage if the person making the

further advance has notice of the intervening mortgages

at the time of making that further advance and "in

the case of an obligation to make further advances,

where notice would deprive the person under the

obligation of priority, it seems that he is protected by

being deemed to be no longer subject to that obligation

once the mortgagor creates the intervening mortgage".

He goes on to say that "it was held in

O'Byrne's

E.ytate--(1885)

15LR I r—t hat even where the

successive mortgages are all registered in the

Registry of Deeds, a prior mortgagee can still

tack further advances so as to squeeze out of

priority an intervening mortgagee, provided

had no notice of the intervening mortgagee when

he made his further advance". This ruling results

from the earlier decisions of the Irish Courts that mere

registration in the Registry of Deeds is not notice for

these purposes. If the intervening registered mortgagee

wishes to protect himself, he must give express notice

to the prior mortgagee whose mortgage is expressed

to secure further advances.

In the discussion on party walls (at page 375), there

is reference to the Boundaries Act (Ireland) 1721 and

the Dublin Corporation Act 1890. The former Act

enables one owner to build a fence or wall on the

boundary line in respect of which there has been no

dispute for three years and to charge half the cost to

his adjoining neighbour. The cost is recoverable as a

debt owed. The latter Act deals with the repair of

party structures and gives an owner the right to enter

on the property of an adjoining owner to carry out

repairs and other works. These Acts do not appear

to have been much used, probably because most people

are not aware of their existence.