Land Law question

golum

Not the most exciting topic in the world I know...but am struggling with this area a bit.
Was wondering if anybody could help out with a clear-cut ( at least somewhat) explanation of situations in which a person may be able to expand a leasehold interest into one in fee simple. In particular I was wondering if the lease has to be of a particular length, or have a specific period left to run.
Also any info re covenants related to having to build a dwelling on the land, any help appreciated...

dermot_sheehan

look at sections 9 and 10 of the Landlord and Tenant (Ground Rents) No.2 Act 1978

9.—(1) This Part applies to a person who holds land under a lease, if the following conditions are complied with:
[GA]
( a ) that there are permanent buildings on the land and that the portion of the land not covered by those buildings is subsidiary and ancillary to them;
[GA]
( b ) that the permanent buildings are not an improvement within the meaning of subsection (2);
[GA]
( c ) that the permanent buildings were not erected in contravention of a covenant in the lease; and
[GA]
( d ) one of the alternative conditions set out in section 10.

10.—The following are alternative conditions one of which must also be complied With in a case to which section 9 relates:
[GA]
1. that the permanent buildings were erected by the person who at the time of their erection was entitled to the lessee's interest under the lease or were erected in pursuance of an agreement for the grant of the lease upon the erection of the permanent buildings;
[GA]
2. that the lease is for a term of not less than fifty years and the yearly amount of the rent or the greatest rent reserved thereunder (whether redeemed at any time or not) is of an amount that is less than the amount of the rateable valuation of the property at the date of service under section 4 of the Act of 1967 of notice of intention to acquire the fee simple or the date of an application under Part III of this Act, as the case may be, and that the permanent buildings on the land demised by the lease were not erected by the lessor or any superior lessor or any of their predecessors in title:
[GA]
provided that it shall be presumed, until the contrary is proved, that the buildings were not so erected;
[GA]
3. that the lease was granted by a lessor to the nominee of a person (in this paragraph referred to as the builder) to whom land was demised for the purpose of erecting buildings thereon in pursuance of an agreement between the lessor and the builder that the builder having contracted to sell the buildings would surrender his lease in consideration of the lessor granting new leases to the builder's nominees;
[GA]
4. that the lease was granted by a lessor to the nominee of a person (in this paragraph referred to as the builder) in pursuance of an agreement between the lessor and the builder that the lessor, upon the erection of the buildings by the builder, would grant leases to the builder's nominees;
[GA]
5. that the lease was granted, either at the time of the expiration or surrender of a previous lease or subsequent to such expiration or surrender—
[GA]
( a ) at a rent less than the rateable valuation of the property at the date of the grant of the lease, or
[GA]
( b ) to the person entitled to the lessee's interest under the previous lease,
[GA]
provided that the previous lease expired or was surrendered before the 31st day of March, 1931 and that it would have been a lease to which this Part applied had this Act then been in force and provided that it shall be presumed, until the contrary is proved, that the person to whom the lease was granted was so entitled;
[GA]
6. that the lease is a reversionary lease granted on or after the 31st day of March, 1931, to a person entitled thereto under Part V of the Act of 1931 or the Act of 1958, whether granted on terms settled by the Court or negotiated between the parties;
[GA]
7. that the lease, being a lease for a term of not less than fifty years, was made—
[GA]
( a ) partly in consideration of the payment of a sum of money (other than rent) by the lessee to the lessor at or immediately before the grant of the lease and, for this purpose, any money paid in redemption of any part of the rent reserved by the lease (whether the money was paid in pursuance of a covenant in the lease or in pursuance of an agreement made between the lessee and the lessor during the currency of the lease) shall be deemed to be part of the consideration, or
[GA]
( b ) partly in consideration of the expenditure (otherwise than on decoration) of a sum of money by the lessee on the premises demised by the lease, or
[GA]
( c ) partly in consideration of both that payment and that expenditure,
[GA]
where the sum so paid or expended or the total of those sums was not less than fifteen times the yearly amount of the rent or the greatest rent reserved by the lease, whichever is the less.

golum

Thanks a lot for that. Just one final question, if anybody would care to clarify it. " Permanent buildings" could a building that was erected by has been almost completely destroyed fall into this category?

stepinnman

"Permanent" in the context of the 1978 Act means not Temporary - as in immovable. A lean-to or shed for instance would not constitute a permanent structure - a ruin or building in a state of disrepair would still come within the definition of "Permanent Building".

Victor

Permanent probably means anything that can't just be lifted and removed (lifted and broken doesn't count). So the framed picture hanging on a thread, suspended from a nail, that is hammered into a wall is temporary, the nail is permanent. Strictly speaking, the same framed picture, if it was screwed to the wall, would be permanent as removal would mean breaking things (removing the fixing from the wall and leaving a hole). Likewise, the hot water immersion is permanent as it can't simple be plugged out like the kettle.

stepinnman wrote: »

"Permanent" in the context of the 1978 Act means not Temporary - as in immovable.

There doesn't seem to be any such definition in the act.

A lean-to or shed for instance would not constitute a permanent structure

Be careful of such language - a lean-to might be of more substantial construction than the main building, as can a shed.

There are different definitiosn of a lean-to. http://images.google.ie/images?hl=en&q=lean-to&btnG=Search+Images&gbv=2

For example, this conservatory is a lean-to http://www.oakconservatories.co.uk/lean-to.htm

These sheds can be simply picked up and put on the back of a truck: http://www.gardens-and-decor.com/Wood_Storage_Sheds.htm (although they tend to be flat-packed). Whereas this one could not: http://www.allspan.co.nz/page.php?4 Its not about size, but whether it is "joined with the earth".

a ruin or building in a state of disrepair would still come within the definition of "Permanent Building".

Agreed, it is still "joined with the earth".

fliptzer

I have a question regarding a fee tail.[/FONT]

Say if a property was conveyed to X with the phrase ‘to X and his heirs’ and X wanted to sell the property.

I know that X can apply for a disentailing assurance and eventually expand it into a fee simple.

However can X simply sell on the property as is, ie without barring the entail? If he can does he have to cater for his heirs in any way?

superficies

First of all with that disposition it would convey a fee simple; for FT you need to add words of procreation
Secondly, someone could decide to sell the fee simple under the Settled Land Acts 1882-1890 instead of barring the entail. Here the future holders are protected by overreaching and a number of processes have to be fulfilled. The Settled Land chapter in any standard text book should explain it clearly enough

partyguinness

It will no longer possible to create fee tails when the new land law legisaltion is enacted. Just a little note. It is currently at the Bill stage. Sorry but the correct title has escaped me.

fliptzer

Thanks for the replies, I've just remembered the rule in Shelly's Case applies so it's a fee simple - duh!

evercloserunion

fliptzer wrote: »

I have a question regarding a fee tail.[/FONT]

Say if a property was conveyed to X with the phrase ‘to X and his heirs’ and X wanted to sell the property.

I know that X can apply for a disentailing assurance and eventually expand it into a fee simple.

However can X simply sell on the property as is, ie without barring the entail? If he can does he have to cater for his heirs in any way?

fliptzer, this is not an application of Shelley's Case but a simple conveyance of a fee simple. "and his heirs" are the words of limitation for a fee simple, not a fee tail. As for your question, I believe X could sell on his land, but regardless of the estate apparently conveyed the buyer's estate in the land would cease immediately upon X's death and the land would revert back to X's issue (an estate pour autre vie). Thus the estate has very little value and it is unwise to sell it without first seeking a disentailing assurance.

superficies

If s/he were to sell under the Settled Land Acts and all requirements of the Acts were fulfilled then the purchaser would receive a fee simple (s. 3, SLA 1882). But anyway, the sooner they abolish the fee tail (and bass that Bill generally) the better for everyone I reckon!

evercloserunion

I'm actually kind of saddened by the prospective bill. I dunno, I guess I just think it's cool that our current system has some minimal evidence of the old feudal system which, though not desirable, was extremely interesting.

Like I know our system is nothing like that system but thefact that it was a gradual evolution instead of just wiping out thye old system completely in one act means that the two systems are kinda connected or something.

It's the difference between finding out you were decended from royalty and finding out you were grown in a test tube.

Victor

evercloserunion wrote: »

It's the difference between finding out you were decended from royalty and finding out you were grown in a test tube.

You can be both. While there a great hullaballoo that Obama had realtiosn from Offaly and is related XYZ on the otherside, ultimately we are all related.

Just because something is old, doesn't mean it is good. Sure it may have stood the test of time, but some parts of land law have gone beyond that test and are repugnant to "common sense" - how can you buy a building, but still have to pay ground rent, etc. A balance needs to be struck, preventing future anomalys, but respecting current property rights - as protected by the consitution.

evercloserunion

Victor wrote: »

You can be both. While there a great hullaballoo that Obama had realtiosn from Offaly and is related XYZ on the otherside, ultimately we are all related.

Just because something is old, doesn't mean it is good. Sure it may have stood the test of time, but some parts of land law have gone beyond that test and are repugnant to "common sense" - how can you buy a building, but still have to pay ground rent, etc. A balance needs to be struck, preventing future anomalys, but respecting current property rights - as protected by the consitution.

I didn't say it was good.Most of feudal tenure is bad,in today's circumstances anyway. It's just so... fascinating. Back when land was the basis for everything else, including social status, and was intertwined completely with politics.

maidhc

evercloserunion wrote: »

It's just so... fascinating.

I'd hate to know what you find boring! :pac:

johnnyskeleton

Victor wrote: »

You can be both. While there a great hullaballoo that Obama had realtiosn from Offaly and is related XYZ on the otherside, ultimately we are all related.

Just because something is old, doesn't mean it is good. Sure it may have stood the test of time, but some parts of land law have gone beyond that test and are repugnant to "common sense" - how can you buy a building, but still have to pay ground rent, etc. A balance needs to be struck, preventing future anomalys, but respecting current property rights - as protected by the consitution.

Anomalies.