Northern Ireland, A Freehold Estate

Discuss, with reference to relevant NI legislation and case law.

Any type of an estate in land can be divided into two general categories, these are ‘freehold’ and ‘leasehold,’ both of which derive from feudal law and are capable of creating differing types of entitlement, the major difference in the two is the tenet of seisin which, although there is no clear explanation it relates to the link between tenure and estate but encompasses ideas of responsibility and ownership in that may people can have an interest in land but only one will own it. The former of these two categories will be broken down into its three main types, namely, fee simple, fee tail and life estate1 before exploring the extent that it is possible to claim ownership of a freehold estate.

Freehold is said to be the; ‘permanent ownership of land or property with the freedom to sell it when you wish,’2 although as we shall see this is subject to conditions. A freehold estate is a type of estate created under feudal law and the feudal system of tenure which eventually replaced the native Irish Brehon law3. It was introduced to Ireland during, and in the centuries after the Norman Conquest.4 The conquest in itself resulted in all land ultimately vesting in the King and being governed through the concepts of tenure and estate5 and for this fact alone it would easy to agree wit the above assertion.

During Ireland’s early history under Norman rule, the feudal system of tenure ‘became not only a system of landholding, but also a system of government and provision of revenue.’6 The tenure system involved a process of grants and sub grants and further sub sub grants, also know as subinfuedation, in return for services such as tenures in ‘chivalry,’ ‘socage’ and ‘Frankalmoign.’7 Therefore, in this way, ‘tenure’ can be seen as the circumstances upon which the land is held and ‘estate’ as the length of time you may hold land for.8 Consequently therefore it is only possible to own an estate or interest in land.9

‘The land itself is one thing, and the estate in the land is another thing, for an estate in the land is a time in the land, or land for a time, and there are diversities of estates, which are no more than diversities of time.’10

This form of land granting created a type of ‘pyramid’ structure with the King at its peak in complete ownership and all land being held for, or off him by his tenants in chief who then in turn sub granted to others11. Currently the idea of holding land ‘off the Crown’ is seen as ‘an amusing historical relic’12 although this sentiment does not change the rules of intestacy and bona vacantia. The king also retained the right of ‘Forfeiture’ which was a royal prerogative allowing confiscation of the land of anyone convicted of treason regardless of their position in the pyramid structure.13

Although the scope of this essay does not permit an examination of leasehold tenure, which evolved alongside, and indeed originated from feudal tenure, it would be prudent to mention it as it relates to fee farm grants which created association much like that of landlord and tenant within s 3 of ‘Deasy’s Act’14 which includes several inferred leasehold covenants such as s.41 which deals with peaceful enjoyment and quiet possession. Provided that rent is paid and tenant’s covenants are adhered to S.42 deals with the payment of rent or ‘compensation.’ In the Conveyancing Act 1892, S.3 states that;

‘Any lease which prohibits assigning or underletting’without consent of Landlord ‘Tennant shall not be fined unless the lease requires Tennant to pay ‘reasonable sum’ re legal expenses’.

There are also leases renewable for lives forever now governed by s 36 of the Property (NI) Order 1997. Both of which will be further explored later. For now it will be sufficient to point out that the very nature of both leases and landlord and tenant relationships can impact on land ownership. Also if we contrast the idea of fee simple absolute in possession and restrictions on ownership through the use of restrictive covenants that by their nature run with the land it may be easier to understand how it affects ownership, for example a church land grant that stipulates that the land or buildings cannot be used for the sale of alcohol or a covenant that restricts the sale of tobacco as in the facts of Craigdarragh Trading Co Ltd v Doherty15 which dealt with the lack of written permission when assigning a leasehold interest. There are also covenants that restrict the ability to sublet part of a lease which was the question under consideration in Northern Carriers Ltd v Larne Harbour16 and the practice of perpetual rent For example, leasehold tenure included the practice of collecting ‘ground rents’ in respect of dwellings. It is important to note that this was curtailed in the Republic of Ireland by the Landlord and Tennant (Ground Rents) Act 1978 and in Northern Ireland by the Property (NI) order 199717

As well as the obligations of service created under freehold tenure there were rights created that impacted on ownership such as ‘homage’ which included court attendance as well as an oath of fealty and ‘Wardship’, which allowed the lord to be financially compensated when the heir, for whom the land was held, reached his majority and took possession of the land. Another landlord right created under tenure was the doctrine of ‘Escheat’ which, occurred when a tenant died without an heir the land reverted to the immediate lord above him in the pyramid arrangement. As feudal tenure died out18 this meant ultimately it reverted to the Crown. Currently under s 16 of the Administration of Estates Act (NI) 195519 Escheat has been replaced by the concept of bona vacantia20 in intestate issues where there are no successors making Crown reversion statute based.

One of the few methods which existed under feudal law for the disposal of land was called substitution, the most basic explanation of which would be that a lord could substitute his own position in the pyramid with another, without creating further tiers in the pyramid through subinfuedation, but by granting them his own tenure, removing himself from the pyramid in relation to that particular piece of land21. Other interests in land were created as well under tenure but they were held to be sometimes something less than estates22 and sometimes, as in the case of Northern Ireland something engineered to suit the political climate of the times.

This is exemplified by the continuing existence in NI of certain hybrid forms of title and tenure such as ‘fee farm grants’ prohibited under the Quia Emptores 1290 which also allowed possessors of ‘free and common socage’ to grant or lease land without having to acquire the landlord’s permission.23 Also ‘leases for lives renewable forever,’ the latter were converted into fee farm grants under the Renewable Leasehold Conversion Act 1849. The fee farm grant was in essence a fee simple but with conditions, namely a payment by the grantee and his descendants of a perpetual rent to the landlord and his descendants that created a type of feudal tenure between the landlord and the grantee and his descendants24. At the time of confiscation and resettlement the Tenures Abolition Act (Ireland) 1662 dictated that the grant would have had to have been ‘free and common socage’ as Wylie points out the Crown, who in itself could not be bound, often ignored this and allowed, through letters patent, subinfuedation in Ireland even though it was questionable as to whether the; ‘Crown had the right to grant this dispensation to those who were clearly themselves bound by the statute.’ 25

Other factors which may impact on ownership are words of limitation and the use of the proper methods of conveyance and bequeathal. The case of Re Courtney highlights the importance of words of limitation and fee farm grants in Northern Ireland. In this case the proper words of limitation were not used whilst transferring a fee farm grant, initially the proper phrasing was ‘to X and his heirs’. The Conveyancing Act of 1881 purportedly removed the necessity for the inclusion of ‘and his heirs’ with the replacement of ‘in fee simple’ but unfortunately neither phrase was included resulting in the transfer of a life interest only. This is because where the words are imprecise the Courts will normally find that the intention was to transfer the smallest estate possible. In this instance that was a life estate26.

In Re Ford and Ferguson’s Contract although the habendum stated that a ‘grantee’ meant ‘heirs and assigns’ unless contrary intention was shown the document itself did not include the word ‘heirs’ and the Master of the Rolls held that the document lacked the ‘necessary terms of art’ and therefore did not transfer the fee simple27.

It is important to note that at present under Article 28 of the Property (NI) Order 1997 you can no longer create a fee farm grant and any attempt will be construed as creating a fee simple.28

As previously stated there are three foremost types of freehold estate. Fee simple absolute in possession which basically means an ownership with the right to leave it to anyone you choose after death, with no limits being placed upon that ownership and enjoying immediate occupation29, consequently it is seen as the closest to complete ownership30which commonly has;

‘The potential to last forever, with a high probability that they will do so in an age when a last will and testament will avoid the consequences of a death intestate leaving no persons entitled to succeed.’31

Where restrictions of ownership are placed upon a fee simple they can come in the form of ‘conditional fee simples’ or ‘determinable fee simples.’ A conditional fee simple, be it a condition precedent or subsequent, may include words such as ‘unless’, ‘if’, ‘on condition that’ or ‘provided that’ during its construction. It occurs where land is given but the condition attached inflicts some clause on the enjoyment or possession of the land, such as, ‘provided someone does not do something’. This does not invalidate the land gift nor does it mean that the gift is given back automatically if a condition is carried out. It will be legal unless the condition is uncertain or against public policy.32 Blathwayt v Baron Cawley exemplifies the former; land was left to numerous people on the stipulation that they would loose their entitlement with it passing to the next in line if they became a Roman Catholic. When this in fact happened the Court looked at the subject of uncertainty and held that because of well recognised statute dealing with matters of faith and established precedents in wills and settlements it could not avoid on this ground33. Re Moore is an example of a conditional fee simple void for reasons of public policy; in this case the testator’s sister was to receive money while she continued to live ‘apart from her husband this was held to be contrary to public policy on issues of marriage.34’

A determinable fee simple occurs where a grantee receives an equitable estate until the determinable event occurs at which time it reverts back to the grantor immediately. Words such as ‘until’, ‘so long as’, ‘whilst’ or ‘during’ indicate a determinable fee simple. Where it is held void the whole grant fails35

A fee simple qualified by a condition subsequent can be difficult to distinguish from a determinable fee simple; in Re Kings Trust36 Lord Porter M.R. said the difference was ‘little short of disgraceful to our jurisprudence.’ It is where land is granted but can be lost upon the occurrence of that subsequent condition but if that subsequent condition is in opposition to public policy such as alienation, Re Dunne’s Estate37, or uncertainty as well as public policy as was found in Re Johnston38 it will be held void. Also the rule in Clavering v Ellison39 must be considered and it states that if a Court cannot see exactly from moment of its construction what events will give rise to forfeiture then the condition is void. When this happens it is only the condition that is invalidated and the grant will pass without the condition therefore creating a fee simple absolute. Lord Denning MR described conceptual uncertainty, may void a condition subsequent but not a condition precedent, in Re Tuck40

A fee simple qualified by a condition precedent ‘is a condition which must be satisfied before an interest in land arises’.41 Much like a condition subsequent it can be void for uncertainty, Re Doherty42 also Re Porter43 Smith has stated that;

‘The law regarding determinable and conditional fees is all to easy to mock. The examples show how a well advised grantor can choose which to employ. There is no point in the law striking down gifts that can be validly made by a slight change of wording.’44

The fee tail estate is also hereditary much like a fee simple and could be granted by will under The Wills Act 1837 ss.28 and 34, or by deed or through one of the earliest forms of transfer, such as the livery of seisin and something of an archaic device originating from the statue De Donis Conditionalibus 1285 and usually created by deed under the Real Property Act 1845 with its transfer and the method of barring an entail being governed by the Fines and Recoveries (Ireland) Act 1834 and came about through the frustrations of the landed gentry. It was normally used to pass land to a male heir and in so doing keep family land within the family but it went further in that it protected the heirs ability to inherit regardless of whatever the grantee did with the land.45

The third and final estate looked at is the life estate which is simply what it says; ‘an estate to last for someones life only.’46 it is of little commercial use as it would be impossible to invest on the unknown term of someones life although prior to the Property (NI) Order 1997 leases for lives renewable forever and leases for lives combined with terms of years were of fairly substantial value. An important distinction between fee tail, fee simple estates and life estate is that the first two are know as ‘states of inheritance’ whereas a life estate does not necessarily pass to heirs.

As well as issues of tenure, conditions, restrictions, obligations under leasehold, Crown reversion and so on there are many other limitations to ownership such as factors of Co-ownership where ‘jus accrescendi’ or the right of survivorship in matters of joint tenancy will defeat a will. Briefly, whoever holds land in either joint tenancy or tenancy in common47 is said to hold it concurrently. Making the co-owners of the land a; ‘single unit for the purpose of certain transactions in respect of that land.’48 The four unities and ‘jus accrescendi’ are what set joint tenancy apart from tenancy in common. We will look at these very briefly as they are less relevant to ownership than they are in establishing joint tenancy and therefore the right of survivorship.

‘The four unities, all of which must be present for a joint tenancy to exist, are the unities of ‘ (a) possession, (b) interest, (c) title and (d) time.’49

The possession must be equally shared by all the co-owners and they must all hold the same interest, i.e. one of them cannot hold a fee tail while the others hold life interests. Further, all interests acquired by the joint tenants must be acquired by the same title and the interests of each of them must vest at the same time. Without any one of these, lack of unity of time would result in creating only a tenancy in common. See Hickson v Hill50

Adverse possession is the ‘displacement of the paper owner’ from their estate and can occur through ‘a title derived aliunde’ this can happen by accident, defective title deeds, through possession of abandoned land or incomplete succession. In Northern Ireland you need to adversely possess the land under article 21 of the Limitation (NI) Order 1989 for a period of 12 years from the time the right of action ‘acrues’.51 There are exceptions to the 12 year rule these are Crown land which must be possessed for 30 years or the foreshore which takes 60 years governed by the Northern Ireland (Miscellaneous Provisions) Act 1932. After this period the land is owned by the adverse possessor and Leigh v Jack52. There also must be physical control of the land and have animus possidendi which is the mental element need and loosely means the intent to ‘exclude all others including the true owner’ an example of adverse possession is to be found in Treloar v Nute53 which unfortunately was not a very clear example of the mental element in that, all he did was fill in a ditch occasionally allow his stock to graze there and allow his son to ride a motorbike.

Pearce and Mee said that;

‘Ownership cannot be seen as absolute dominium over the thing to which an owner is entitled. The law places limits upon the ways in which an owner may enjoy his property’.54

Just some of the legislation limiting enjoyment of land in Northern Ireland would include the Statute of Westminster III, (Quia Emptores, 1290) the Northern Ireland Treasure Act 1996, which governs treasure trove. In matters of the foreshore adjoining tidal waters the authority is the Northern Ireland (Miscellaneous Provisions) Act 1932, s 9. Mineral development act (NI) 1969 which vests certain minerals in the Crown, likewise the Petroleum (Production) act(NI) 1964 and also the Landlord and Tenant Amendment Act 1860 ‘ Deasy’s Act.’ The Rent (NI) Order 1978 affects the rights of landlords in relation to ownership by granting rights to tenants of repair and tenure. It is also worth noting the Land Registration Act (NI) 1970 which started a system of Land Registry in Northern Ireland. Schedule 5 integrated the Land Registration Act 1925 and what it effectively means is that if you buy land and do not register it you will not really own it. Escheat still exists for those who suffer bankruptcy under the Insolvency (Northern Ireland) Order 1989 (No. 2405 N.I. 19) articles 152 & 288 and compulsory purchase orders vesting land on behalf of the Crown.

It is important to note that although Northern Ireland is part of the UK, the Law of Property Act 192555 does not apply there. Instead land law in Northern Ireland is made up of Laws passed for Ireland as a whole, NI legislation and case law, persuasive English case law and certain statutory provisions from the Republic of Ireland. This raft of multi-jurisdictional legislation is a consequence of Northern Irelands turbulent political and historical past relationship with the rest of the UK56 and because of this there is a need for reform with proposals including the monumental decision to; ‘abolish the concepts of tenure and estates and provides that in future what is owned is the land itself’. And it will be that land that can in the future be disposed of. The rule against alienability will survive along with the ability of land owners to create interests less than full ownership’ and proprietary estoppel will also survive. Perpetually renewable leases, life interests, fee farm grants will all be gone in an effort to make land law and Conveyancing easier.

‘The Bill is concerned only with removing the concept of tenure so far as it relates to land ownership and it is not intended to deal otherwise with matters concerning the royal prerogative’57.

Although the proposals go along way towards establishing true ownership of land in Northern Ireland as opposed to concepts of ownership of estate while compulsory purchase orders, Crown reversion and both documental and statutory restrictions exist it will be arguable whether true ownership or just the ability to dispose of land exists therefore it would be reasonable to conclude on the discussion within this essay that a ‘freehold estate’ does not amount to full ownership.

* Lenihan ‘Royal Prerogatives and the Constitution’ (1989) 24 Ir Jur (NS) 1

* Rook ‘Property Law and the HRA 1998: A Review of the First Year’ [2002] Conv 316

* Dowling ‘Ejectment for Non-Payment of Rent’ SLS NI 1986

* Dowling ‘The Genesis of Deasy’s Act’ (1989) 40 NILQ 53

* Thompson ‘Oral Agreements for the Sale of Land’ [2000] Conv 245

1 J. Wylie, Irish Land Law, (Butterworths, Wiltshire, 3rd edn, 1997) pg 178

2 Soanes, C., Oxford English Mini Dictionary, (Oxford University Press, Oxford, 7th Ed., 2007,) pg., 223

3 Pre 12th century but existing in varying degrees right up until the 17th century. J. Wylie, Irish Land Law, (Butterworths, Wiltshire, 3rd edn, 1997) pg 12

4Ibid pg 12

5 Allodial in nature in that the king had complete ownership of the land without the need to pay a rent or give a service for it. It is almost opposite in nature from the feudal system of tenure that he employed.

6 J. Wylie, Irish Land Law, (Butterworths, Wiltshire, 3rd edn, 1997) pg 59

7 Tenures in chivalry included grand sergeantry, which involved ‘personal service’ to the king and knight service, which provided the king with a type of ‘standing army’ at the expense of his tenants in chief. Initially socage involved agricultural services later converted to rent and Frankalmoign was simply an ‘obligation by the tenant to pray for his lord’s soul’. See J. Wylie, Irish Land Law, (Butterworths, Wiltshire, 3rd edn, 1997) pg 64-67

8 J. Wylie, Irish Land Law, (Butterworths, Wiltshire, 3rd edn, 1997) pg 60

9 R. Pearce, J. Mee, Land Law, (Round Hall Sweet & Maxwell, Dublin, 2nd edn, 2000) pg 47

10 Walshingham’s Case, (1573) 75 ER 80

11 J. Wylie, Irish Land Law, (Butterworths, Wiltshire, 3rd edn, 1997) pg 66

12 R. Sexton & B. Bogusz, Land Law: Text, Cases and Materials, (Oxford University Press, Oxford, 2009) pg 8

13J. Wylie, Irish Land Law, (Butterworths, Wiltshire, 3rd edn, 1997) pg 66-67

14 The Landlord and Tenant Law Amendment Act, Ireland 1860

15 Craigdarragh Trading Co Ltd v Doherty (1986) NI 218

16 Northern Carriers Ltd v Larne Harbour(1981) NI 171 Ltd

17 J. Wylie, Irish Land Law, (Butterworths, Wiltshire, 3rd edn, 1997) pg 81

18 Through the application of the Statute Quia Emptores 1290 which prohibited subinfuedation and the Tenures Abolition Act (Ireland) 1662

19 The Succession Act 1965 in the Republic of Ireland achieved the same result.

20 Ownerless property

21 J. Wylie, Irish Land Law, (Butterworths, Wiltshire, 3rd edn, 1997) pg73

22 i.e. an easement such as a right of way would be considered an interest, you could not be held to own the land only to have a right of way over it.

23 ‘also know as the rule against inalienability’

24 Be that landlord either the Crown or the immediate superior lord.

25 J. Wylie, Irish Land Law, (Butterworths, Wiltshire, 3rd edn, 1997) pg 76-77

26 Re Courtney (1981) NI 58; ‘Accordingly, my decision is that technical words of limitation are necessary to convey, inter vivos, the legal fee simple in land held under a fee farm grant, and since the 1965 document does not contain any such words, it was not effective to convey to the Misses Courtney Hugh’s fee simple estate in his undivided one-third share of the Armagh property. I fully realise that in so deciding I am not giving effect to Hugh’s intention when he executed the 1965 document, but it seems to me that on the authority of RE Ford & Ferguson’s Contract (supra) the intention of the maker of the instrument does not come into the matter if the technical requirement of words of limitation is not satisfied…….My decision does not mean that the 1965 document is completely ineffective: a grant to a person without the necessary words of limitation can create a life estate in favour of the grantee: Challi’s Real Property (supra) (page 341) and this seems to me to be the effect in law of the 1965 document.’

27 In Re Ford and Ferguson’s Contract [1906] 1 I.R. 607

28 Article 28 (1) of the Property (NI) Order 1997

29 J. Bray, Unlocking Land Law, (Hodder Education, London, 3rd edn, 2010) pg 4

30 J. Wylie, Irish Land Law, (Butterworths, Wiltshire, 3rd edn, 1997) pg 178

31 Ibid 179

32J. Bray, Unlocking Land Law, (Hodder Education, London, 3rd edn, 2010) pg 4

33 Blathwayt v Baron Cawley [1976] AC 397

34 Re Moore (1888) 39 CH D 116

35 J. Bray, Unlocking Land Law, (Hodder Education, London, 3rd edn, 2010) pg 5

36 Re King’s Trust (1892) 29 LR Ir 401 per lord Porter M.R. at 410

37 Re Dunne’s Estate, [1988] IR 155

38 Re Johnston (1986) NI 229

39 Clavering v Ellison (1857) 44 ER 545

40 Re Tuck [1978] 1 All ER 1047 Ch 49, 59, ”Conceptual uncertainty’ arises where a testator or settlor makes a bequest or gift upon a condition in which he has not expressed himself clearly enough. He has used words which are too vague and indistinct for a court to apply. They are not sufficiently precise. So the court discards the condition as meaningless. It makes it of no effect, at any rate when it is a condition subsequent. ‘Evidential uncertainty’ arises where the testator or settlor, in making the condition, has expressed himself clearly enough. The words are sufficiently precise. But the court has difficulty in applying them in any given situation because of the uncertainty of the facts. It has to resort to extrinsic evidence to discover the facts, for instance, to ascertain those whom the testator or settlor intended to benefit and those whom he did not. Evidential uncertainty never renders the condition meaningless. The court never discards it on that account. It applies the condition as best it can on the evidence available.’

41R. Pearce, J. Mee, Land Law, (Round Hall Sweet & Maxwell, Dublin, 2nd edn, 2000) pg 74

42 Re Doherty [1950] NI 83

43 Re Porter (1975) NI 157

44 R. J. Smith, An Introduction to Land Law, (Pearson Education Ltd, Essex, 2nd edn, 2010) pg 135

45 J. Wylie, Irish Land Law, (Butterworths, Wiltshire, 3rd edn, 1997) pg 244-266

46 J. Wylie, Irish Land Law, (Butterworths, Wiltshire, 3rd edn, 1997) pg 179

47 Although these are forbidden under the Law of Property Act 1925 in England and Wales there is no such prohibition in Northern Ireland.

48 J. Wylie, Irish Land Law, (Butterworths, Wiltshire, 3rd edn, 1997) pg 428

49 Ibid 430

50 Hickson v Hill (1857) 3 Ir Jur (ns) 165 also J. Wylie, Irish Land Law, (Butterworths, Wiltshire, 3rd edn, 1997) pg 431

51 Equivalent legislation in England would be land Registration Act 2002 (10 years) and Statute of Limitations 1957 (amended 1991) in the Republic of Ireland

52 Leigh v Jack (1879) 1879 5 Ex D 264

53 Treloar v Nute (1976) 1 WLR 1295

54 R. Pearce, J. Mee, 2nd edn, Land Law,Round Hall Sweet & Maxwell, Dublin, 2000 pg 39

55 Which is arguably the most significant legislation in relation to land law in the UK

56 From the time of the Norman Conquest and subsequent numerous rebellions, the confiscation, resettlement and plantation of Ireland, the partition and formation of the Irish Free State and the law reforms of the 20th century.

57 Norther Ireland Land Law Commission on Land Reform NILC 8 (2010)