Land law question

veronymus

If anybody can help answer my query, I would be grateful. I've looked through both Wylie and Lyall on Land Law for an answer and have either missed it or it's not there.

If I had a fee simple conditional with a condition subsequent i.e. on condition that I do not become a solicitor and I wished to sell my interest, do the conditions transfer to the purchaser? In other words, even after alienating my interest, would the purchaser's interest be subject to a right of re-entry by the grantor if I then went on to qualify as a solicitor?

Thanks

Peregrinus

It must depend on how the condition is worded. But (a) the courts generally don't like these conditions, and to the extent that the language creating them is at all ambiguous they are likely to read the condition down, not up. Secondly, the more widely the condition is drawn, the more likely it is that the courts will strike it down as being contrary to public policy.

veronymus

Peregrinus wrote: »

It must depend on how the condition is worded. But (a) the courts generally don't like these conditions, and to the extent that the language creating them is at all ambiguous they are likely to read the condition down, not up. Secondly, the more widely the condition is drawn, the more likely it is that the courts will strike it down as being contrary to public policy.

Thank you Peregrinus.

My reading does tell me that the courts are loathe to give effect to conditions that are ambiguous. In the above scenario though, the condition is quite clear - I retain my interest on the condition that I don't qualify as a solicitor. What I am really wondering about is if, for argument's sake, the condition holds and I sell my interest, does the purchaser get a fee simple absolute or a fee simple conditional upon me not becoming a solicitor? Or another way of putting it might be, can conveyance be a way of defeating a condition?

Intuition tells me that that would be too easy but I can't find a definitive answer.

Peregrinus

As I say, you'd need to know exactly what the grant says - not some summary or paraphrase. What the court will seek is the grantor's intention, and they can't get that from reading someone else's summary of what they think the effect of the grant is.

If the wording in the grant is ambiguous, the courts could go one of (at least) two ways.

1. What is the rational link between ownership of the land and the grantee not qualifying as a solicitor? Is the grantor likely to have wanted the grantee not to become a solicitor even after he had ceased to have any interest in the land? If there is no reason to think that the grantor would have wanted this, then read the restriction down.

2. The wider reading makes the land virtually unsaleable for the life of the grantor. Who is going to buy the land if, at some point in the future, the grantee might qualify as a solicitor? Whatever his intentions at the time of sale, there can be no guarantee that he won't later qualify as a solicitor, so who will pay for the land in these circumstances. Therefore, the wider reading will act as a restraint upon alienation, which we don't like and which is contrary to public policy. Therefore, we prefer the narrower reading.

You could raise other arguments - e.g. is the condition, whether read widely or narrowly, contrary to public policy as an attempt to restrict the constitutional right to earn a livelihood? But that raises whole other issues.

veronymus

Thanks again Peregrinus, much appreciated.