State Property

234

A slightly academic question:
1. Is it possible for a freehold interest to devolve on the state by means of bona vacantia?
2. If so, what happens to this interest if the state wishes to disclaim it?

Section 32 State Property Act 1954 (http://www.irishstatutebook.ie/1954/en/act/pub/0025/sec0032.html#sec32)
This only seems to deal with fee farm interests and leasehold interests. I can't see anything on other freehold interest e.g. a fee simple. I will admitt that it would be unlikely for the state to wish to disclaim an interst of this nature but I would be interested to know what would happen. Land has to have an owner after all.

Gazzetta

Generally no. On the death of an owner it will pass to personal reps or if none then vest in the President of the High Court, until it is claimed under inheritance or acquired by way adverse possession. But it is not bona vacantia and so does not become state land. But where owned by a company that is struck off it will pass to the Minister of Finance - in fact this is expressly described as bona vacantia in the same Act.

234

But, to take the example of a fee simple interest that vests in the President of the High Court on intestacy where no relative can be found for per stripes distribution to take place; then the fee simple interest devolves on the state? What would happen if the state wanted to disclaim this interest if e.g. it was subject to a variety of burdens, judgment mortgages etc. and was more trouble that it was worth?

Gazzetta

Chancery jurisprudence has all sorts of examples and exceptions. But I am not aware of the state routinely acquiring property on intestacy. And it would need a statutory power to. Normally the land (or the legal estate to be more exact) will vest until someone claims it. "Vest" is always used to describe this. It does not devolve per se as far as I am aware, but it is possible to acquire possession adversely against the President. In fact it happens very often in the case of intestacy.

dermot_sheehan

There is a provision for the nominee of the State to apply under Order 79 rule 5(1) of the Superior Court Rules (dealing with probate) for letters of administration.

If a person died intestate and there were no heirs found (it is technically impossible to have no heirs as everyone is related to the rest of the human race), the nominee of the state can take out letters of administration and vest the property in the State.

After 12 years any claim by an eventual heir would be statute barred.

234

Thanks gabhain; I knew there was a mechanism for vesting otherwise unclaimed property in the state but I waasn't sure what it was.
I am still interested in any answers to my second question. What happens if there is no heir or intestate beneficiary to be found and the state does not assert any interest in the property? Our ssytem of land law is predicated on the assumption that land must have an owner.

dermot_sheehan

Who ever is in possession would have possessory title which would become absolute after 12 years.

I just want to add to my previous message and to dispute what Gazetta has said about there needing to be a statutory basis, bona vacantia is a common law doctrine that operates in addition to the State Property Act.

There is a provision for the State to apply to the High Court for a declaration that bona vacantia has operated in relation to a piece of property.

With regard to intestacies though, as I previously indicated an appropriate application would be for the State to take out letters of administration since there is an owner of the property, the President of the High Court.

Section 28 would catch dissolved bodies corporate, the only situation I can think where bona vacantia might apply would be were an unincorporated body owns property but ceases to exist and there isn't a trust in which trustees could be appointed under the trustee act to manage the property.

234

Thanks, that seems to deal with nearly all possibilities. However, what would happen if property vested in the President of the High Court and the state did not seek letters of administration? I guess what I really want to know is, is it possible for land not to have an owner?

Gazzetta

gabhain7 wrote: »

Who ever is in possession would have possessory title which would become absolute after 12 years.

I just want to add to my previous message and to dispute what Gazetta has said about there needing to be a statutory basis, bona vacantia is a common law doctrine that operates in addition to the State Property Act.

There is a provision for the State to apply to the High Court for a declaration that bona vacantia has operated in relation to a piece of property.

With regard to intestacies though, as I previously indicated an appropriate application would be for the State to take out letters of administration since there is an owner of the property, the President of the High Court.

Section 28 would catch dissolved bodies corporate, the only situation I can think where bona vacantia might apply would be were an unincorporated body owns property but ceases to exist and there isn't a trust in which trustees could be appointed under the trustee act to manage the property.

Here is the statutory authority:

Succession Act 1965, Section 73.—(1) In default of any person taking the estate of an intestate, whether under this Part or otherwise, the State shall take the estate as ultimate intestate successor.

(2) The Minister for Finance may, if he thinks proper to do so, waive, in whole or in part and in favour of such person and upon such terms (whether including or not including the payment of money) as he thinks proper having regard to all the circumstances of the case, the right of the State under this section.

(3) Section 32 of the State Property Act, 1954 (which provides for the disclaimer of certain land devolving on the State by way of escheat or as bona vacantia) shall extend to the grantee's interest under a fee farm grant and the lessee's interest under a lease, where the State has a right to such interest as ultimate intestate successor.

According to Wylie on Irish Land Law, Section 73 replaces the old law of escheat, as regards realty, and bona vacantia, as regards personalty - thereby indicating that BV did not apply to land. (In fact English law sources confirm this as being the position in England prior to 1925 - meaning it was the common law position. Actually now BV applies to land in England.) Apparently the State will declaim ultimate succession in favour of charities and persons with a moral claim on the deceased.

As to the President's role in cases where there is an inheritor, land vests in the President pending the raising of representation of letters of administration – however long that may take (Gleeson v Feehan (Supreme Court 1996)). The President does not own the land beneficially. In the meantime a third party may enter into possession adversely to that of the President over 6 / 12 years – not 30 years as in the case of land truly owned by the state.

Of tangental relevance, perhaps, bear in mind that Article 43.2 of the Constitution provides “The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.”

Consistent with the Constitution the Succession Act provides at Section 10 (1) that “The real and personal estate of a deceased person shall on his death, notwithstanding any testamentary disposition, devolve on and become vested in his personal representatives.”

And Order 79 rule 5(1) of the Superior Court Rules (which deals with intestacy as opposed to probate of wills i.e. testacy) is premised on the applicant (including the state) “having a beneficial interest in the estate of the deceased.”

dermot_sheehan

S. 73 replaces the common law rules of bona vacantia for intestacies.

There are other situations in which bona vacantia can arise, for example to dissolution of a unincorporated association.

Bona vacantia arises at common law as one of the perogatives of the crown which is now vested in the state.

s. 127 of the registration of title preserves this right.

krd

Gazzetta wrote: »

Of tangental relevance, perhaps, bear in mind that Article 43.2 of the Constitution provides “The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.”

I saw this article a while back. And I wondered is it actually meaningful, since there are inheritance taxes. A tax on a transfer of property is in effect a confiscation of part of that property. And property can be requisitioned through compulsory purchase. So is the article a completely meaningless statement.

Gazzetta

gabhain7 wrote: »

S. 73 replaces the common law rules of bona vacantia for intestacies.


There are other situations in which bona vacantia can arise, for example to dissolution of a unincorporated association.

Bona vacantia arises at common law as one of the perogatives of the crown which is now vested in the state.

s. 127 of the registration of title preserves this right.

So for nearly all practicable purposes BV is a statutory regime and common law BV only applies to land already acquired prior to Succession Act 1965 (hence Section 127 RoTA) and possibly with clubs but even then there are a number of cases in which BV was held not to applied.