{"id":281,"date":"2021-04-03T22:30:35","date_gmt":"2021-04-03T22:30:35","guid":{"rendered":"http:\/\/legalblog.ie\/?p=281"},"modified":"2023-11-05T22:01:24","modified_gmt":"2023-11-05T22:01:24","slug":"real-property","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/real-property\/","title":{"rendered":"Property Law Reform II"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/real-property\/#Succession\" title=\"Succession\">Succession<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/real-property\/#Adverse_Possession\" title=\"Adverse Possession\">Adverse Possession<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/real-property\/#Easements\" title=\"Easements\">Easements<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/real-property\/#Wills\" title=\"Wills\">Wills<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/real-property\/#Transfer_of_Land\" title=\"Transfer of Land\">Transfer of Land<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/real-property\/#Registration_of_Title\" title=\"Registration of Title\">Registration of Title<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Succession\"><\/span>Succession<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Inheritance Act 1833 changed and codified heirship.\u00a0 It removed anomalous ancient common law rules tracing entitlement from\u00a0 the last purchaser instead of last person seized.\u00a0 Lineal ancestors, as well as descendants, were admitted as heirs.\u00a0 Heirs of the half-blood were admitted.<\/p>\n<p>At the start of the 19th century, when a man died, with real estate held in fee simple, his widow was entitled to one third for life.\u00a0 This right could not be removed or deprived by will or deed or even a sale or mortgage.\u00a0 The only method by which it could be done was by levying an artificial fine procedure involving significant delay and cost.<\/p>\n<p>The Dower Act 1833 provided that a widow could claim dower only on lands belonging to her husband at the time of his death and then only regarding lands which he had not disposed of by his will.\u00a0An Act of 1890 gave widows, where husbands died intestate, a charge of \u00a3500 pounds out of real and personal estate in addition to dower.<\/p>\n<p>After the Land Transfer Act 1897, freehold land devolved onto the personal representative in the same manner as leasehold estates in England and Wales.\u00a0 This did not apply until 1959 in the Republic of Ireland and 1955 in Northern Ireland.<\/p>\n<p>At the start of the 19th century, only the general personal estate was liable for simple contract debts of the deceased.\u00a0 Otherwise the heir or devisee of freehold estates took it free from all debts except mortgages and deeds in which the heir was expressly mentioned.\u00a0 Even in relation to mortgage debt, the heir or devisee was entitled to be indemnified out of the general personal estate of the deceased.<\/p>\n<p>By various statutes, especially 3 &amp; 4 William IV in 32 and 33 Vic c 46, real estate was made available for payment of all debts. By Locke King&#8217;s Act, an heir or devisee took the real estate burdened with mortgage debt and was no longer entitled to be indemnified or exonerated by the personal estate holder.<\/p>\n<p>The law of Property Amendment Act 1859 empowered a devisee entrusted with real estate charged with debts to raise the sum required by sale or mortgage.\u00a0 This applied whether there was a charge in the will and removed an anomaly where there were no directions and particulars as to how to realize the charge.<\/p>\n<p>In England and Wales, the Land Transfer Act 1897 removed this anomaly by giving the personal representative power to sell or mortgage to pay for debts whether expressly charged or not.<\/p>\n<p>In Ireland, land purchased out under the Land (Purchase) Acts devolved in the same way as personal property.\u00a0 After the end of the 20th century, only the freehold unregistered estate passed to the heir at law.<\/p>\n<p>No death duties were levied on real estate until 1854.\u00a0 The Finance Act 1894 provided for Estate Duty on real estate.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Adverse_Possession\"><\/span>Adverse Possession<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>By statute 32, Henry VIII, a person who has undisturbed possession of land for 60 years could bar real actions and writs of right.\u00a0 This legislation remained in force until 1833 when the Statute of Limitations Act of that year significantly reformed the law and gave birth to the modern law on squatters and acquisition of title by exclusive possession.<\/p>\n<p>The period for which exclusive possession was reduced from 60 to 20 years.\u00a0 Where the true owner was out of possession without acknowledgment of title for 20 years, the Acts takes away his legal right to recovery and his rights to the property.\u00a0 He will be a trespasser even if he recovered possession.<\/p>\n<p>Exceptions were maintained in favor of persons under disability or persons overseas.\u00a0 They had ten years to assert their right.\u00a0 Rights did not begin to run against future interest holders until they became enjoyable in possession.<\/p>\n<p>A new Limitation Act was passed in 1874 reducing the period of 20 years to 12.\u00a0 Persons with disabilities were given six years.\u00a0 The exception in favor of persons overseas was removed.<\/p>\n<p>The reversioner was allowed 12 years from the time the previous owner was dispossessed or six from the time he became entitled in possession whichever is longer.\u00a0 Barring if one reversioner became barred all later reversioners.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Easements\"><\/span>Easements<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In the case of easements, rights or prescription could arise at common law.\u00a0 They could not be obtained by long use of itself would in practice could be so required through the mechanism of a number of fictions.\u00a0 Use from so-called living memory created a report of a presumption that there was a lawful origin by grant.\u00a0 \u00a0Notionally, proof was required to 1189 but the presumption was created on evidence tracing back to living memory.<\/p>\n<p>The Doctrine of Modern Lost Grant was invented by the courts and juries were entitled to presume a lost grant once 20 years use was claimed.\u00a0 This could be rebutted by proof that it arose after 1189 or on some other negating ground.<\/p>\n<p>The Prescription Act 1832 sought to put the law on a more rational basis.\u00a0 20 years period was specified as a general period for acquisition of easements and 30 yersin other cases. The legislation provides that some of the basis on which the lost modern grant could be rebutted are no longer applicable.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Wills\"><\/span>Wills<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In the early 19th century, a will had to be witnessed by three competent credible witnesses.\u00a0 General devises spoke\u00a0 from the date of the will and not the death. \u00a0Freehold land after acquired did not pass unless the will was amended.\u00a0 A device of real estate without words of limitation presumptively caused a life estate to pass even in the case of will.<\/p>\n<p>The Wills Act 1837 reformed the law of wills substantially.\u00a0 A will is valid if signed in the presence of two witnesses. The credibility of witnesses is not a factor unless the witness is a husband or wife of the testator.\u00a0 Wills speak from death for both real and personal estate.\u00a0 A gift to a predeceasedchild takes effect as if the child had died immediately after the testator.<\/p>\n<p>Real estate is coudl be\u00a0 devised without words of limitations.\u00a0 A will is to be interpreted without technical language and it is presumed that the entire estate of the testator is to pass until the contrary is shown.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Transfer_of_Land\"><\/span>Transfer of Land<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A transfer of real property during life was executed at the start of the 19th century by a lease and release.\u00a0 A number of other even more anomalous methods existed.<\/p>\n<p>Under the lease and release a vendor may agree for the sale of a property for a year in consideration of a\u00a0 nominal amount.\u00a0 This then vested the legal right of possession in the purchaser.\u00a0 In this case the reversion in the vendor could be released by another deed for which the true consideration was set out.\u00a0In 1841, an Act provided that a release if made in pursuance of the Act should be as effectual as a lease and release.<\/p>\n<p>Finally, the Real Property Act 1845 provided that all real estate, corporeal hereditament should be deemed to lie in grant as well as in delivery.\u00a0 The common law principle that the actual delivery of possession or the later principle that a notional delivery by aid of the statute of uses became unnecessary.\u00a0 The deed of grant then supplanted the lease and release as the common method of conveyancing.<\/p>\n<p>The Conveyancing and Law of Property Act of 1881 modified the principle that the rate of remuneration of the solicitors was dependent on the number of words. \u00a0Short formulations were provided for covenants and title by the use of certain key words most commonly &#8220;as beneficial owner&#8221; for full covenants.\u00a0 A simple form of statutory acknowledgment was provided for.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Registration_of_Title\"><\/span>Registration of Title<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Registration of title developed in the United Kingdom in the mid to late 19th century. The earlier systems of registering title and recording title in Ireland were supplemented by the Local Registration of Title Act 1891.\u00a0 All land purchased out through the Land Commissions was mandatorily registerable in the Land Registry.\u00a0I<\/p>\n<p>The registration of title legislation was designed to avoid the need for repeated investigation of title.\u00a0 The registrar maintains all titles on its books up-to-date and a guarantee of state title is given.<\/p>\n<p>The first\u00a0 registration of title in England took place in 1862.\u00a0 It only provided for the registration of the fee simple titles after examination.\u00a0 The Act was not a success.<\/p>\n<p>The Land Transfer Act 1875 proceeded in the principle that the land owners could register a possessory title without having to investigate title.\u00a0 Some person not necessarily, the fee simple owner could be be registered as proprietor subject\u00a0 to cautions and inhibitions to prevent the proprietor dealing without respecting rights under trust.<\/p>\n<p>The Act was not compulsory and was largely a dead letter until the Land Transfer Act 1897.n England and Wales, the Land Transfer Act 1897 created the modern Land Registry.<\/p>\n<p>The Land Transfer Act reflects the modern Land Registry and is equivalent to the 1891 Act in Ireland.\u00a0 Freehold estates and land could be registered with absolute, qualified or possessory title.\u00a0 The three registers were kept, the property register, proprietary-ship register and charges register.<\/p>\n<p>The first part contains description of the property referring to a plan.\u00a0 The second contains details of the owner and class of title.\u00a0 The charges register specifies which mortgages, easements, registered encumbrances, restrictive covenants with which the land is burdened.<\/p>\n<p>No investigation of title is necessary with apossessory title application.\u00a0 Over time, possessory title gained strength and could be converted into absolute title.<\/p>\n<p>A fee simple owner may be registered as proprietor and also as trustees for sale. Mortgagees with power of sale\u00a0 tenants for life could\u00a0 become entitled to sell.<\/p>\n<p>In the case of possessory title with which most properties were initially registered, proprietorship was made subject to all estate&#8217;s rights and encumbrances existing at the date of registration.\u00a0 Holders of minor interests could protect themselves by registration of the caution, inhibition or restriction.<\/p>\n<p>Restrictions provide that land might not be sold unless monies are paid to certain parties e.g. the trustees of the settlement or into court.\u00a0 Inhibitions provide that no transfer should happen until certain circumstances applied.<\/p>\n<p>The register was made subordinate to the rights, interest of the persons in possession.\u00a0 A person must investigate who is in possession and the rights and interests arising from such possession.\u00a0 The registered owner must be the person with a current interest and possession.\u00a0 Future interests were not registered.<\/p>\n<p>The 1897 protected the true owner in possession.\u00a0 It created a right of compensation by persons damaged by mistakes in the Registry.\u00a0 Ownership of title was transferred by a simple statutory form of transfer.\u00a0 Leasehold estates may be registered under the legislation provided there was at least 40 years to run.\u00a0 This period was later reduced to 21 year.<\/p>\n<p>The 1875 and 1897 Act provided for the creation of a registered charge.\u00a0 The registered charge holder was given the powers of the mortgagee by deed.\u00a0 He had statutory power of sale, foreclosure, or even power to appoint a receiver.\u00a0The charges ranked in order of registration.<\/p>\n<p>The 1897 Act allowed creation of a land mortgage by deposit of the land certificate.\u00a0 The land certificate issued in respect of each title as an instrument to prevent fraud.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-281\" data-postid=\"281\" class=\"themify_builder_content themify_builder_content-281 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Succession The Inheritance Act 1833 changed and codified heirship.\u00a0 It removed anomalous ancient common law rules tracing entitlement from\u00a0 the last purchaser instead of last person seized.\u00a0 Lineal ancestors, as well as descendants, were admitted as heirs.\u00a0 Heirs of the half-blood were admitted. At the start of the 19th century, when a man died, with [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[32],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/281"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=281"}],"version-history":[{"count":5,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/281\/revisions"}],"predecessor-version":[{"id":28828,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/281\/revisions\/28828"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=281"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=281"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=281"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}