LW392 – Property Law

CA due 6th December

 Worth 30%
 Choose 1/4 topics, look especially into “Is there property in a corpse”
 Can make your own question, given there is consultation
 3,500 word count, excluding footnotes and bibliography (Oscola Ref)
 Focus on independent legal research, articles, books and cases
Lylle on Land Law, 5th ed.

What is property?
Control
 Having exclusive control is indicative of owning one’s property
 It is about the rights and responsibilities of an individual toward the property
 You have a set of free rights to do what you will with the property (sell it, throw
it away, manage it, give it away), but you also have responsibilities, in regard
towards the law, other people (starting a drug trade on the phone, not causing
harm to others) etc.
 Property also has a value of transmissibility and succession when the original
owner is no longer there to own it
Incidents of property
 Use, possession, management, income, capital, security, transmissibility,
absence of term, duty to prevent harm
Property rights are not personal rights
Property is a right in rem – against other people in general
As opposed to in personam – against one particular person, like contract
Categorization of property
 Real (land) – houses, books, laptops, anything physical, any “movable” property
 Personal (chattels)

Land as the subject of Property

Land includes itself but also all that lays on that land, above, on, and below. Water,
soil, ore, shrubbery, trees, are all part of the land
 Nature
 Buildings
 Water
 Foreshore
 Subsoil
Originally the concept of owning land from “heaven to hell”, ownership of all property
above and below
Now days, the more reasonable approach is used, especially to airspace
 Bernstein v Skyviews Ltd [1978] QB 479 – drone taking photos of someone in
their garden, tried selling them to the person. Sued under trespassing but failed.

No such thing as absolute ownership

You may own your property, but it is always dependent on people around us. Different
people exercising different right.
 Some people have bigger rights, like owning the phone, but others have a lesser
right to that phone, as to not get harmed by it.
Property rights can be functionally understood as rights, which extend to intangible
matters such as rights of way
Property rights exist in rem rather than in personam
Ownership of land in this jurisdiction cannot be said to be absolute. The state can
compulsory purchase land subject to compensation irrespective of the estate or
interest someone has in the property – S212 Planning and Development Act 2000

Law of finding
Relativity of title – hierarchy of owners
True owner will always have the strongest claim to an object
In the absence of a true owner, the default rule is first possession
 Armory v Delamire (1722) - Chimney sweep, found broach and sold it to the
jeweller. Neither the owners of the home or the jeweller has the biggest right to
it. The chimney sweep boy has the strongest tie/first possession of the object
 Hanna v Peel (1945) – finder maintains possession against all, but the true
owner
 Parker v British Airways [1982] 1 All ER 834 – man finds a bracelet on a semi
owned area of an airport and gives it to British Airport, and o let him know if
anyone finds it or not. After a time of unclaimed possession, Parker finds that
British Airways sold it. Parker argues he found it first and has possession right
over it. British Airways argue that it was on their land and hence the possession
is theirs. The court ruled in favour of Parker, saying its not a controlled
 environment, and anyone could have easily put in the effort to find it. There was
also no lost and found policy.
 In circumstances where the owner of the land exercises possession of land and
control over it extensively, they may trump the right of possession of the
original owner
 Elwes v Brigg (1886) 33 Ch D 562 – object found below the soil, the owner of the
land will have the stronger claim to it

Treasure trove
Originally a royal prerogative, as long as the items buried had the intent to be
recovered
Webb v Ireland [1988] IR 353
 Father and son find Christian metalwork in Tipperary using metal detectors.
They brought them forward to national museums. They were told they would be
honourably treated, in part by awarding them 10k euro each. The finders
declined and sued for possession of the artifacts.
 The court ruled against, stating its treasure trove and it belongs to the nation.
 HC held in favour of Webb, abolishing the royal treasure trove test.
 The SC reversed and held in favour of the state, arguing the treasure trove
doctrine is within the sovereign rights of the people and belongs to the state as
national heritage and is” not the exclusive property of the finders”. Finders were
awarded 25k euro each.
National Monuments Act 1994
 S2 – ownership of archaeological objects with no known owner vests in the State
 S5 – offence to not give in objects of archaeological significance
 S7 offence to posses detection device on site without ministerial licence
 S10 – monetary compensation is to be awarded
Doctrine of Estates – Freehold Estates

Determinable Fee Simple

The estate arises when a fee simple is granted subject to the communication of a
state of affairs
The duration of the estate is fixed by the occurrence of a particular evet. The estate
lasts as long as the condition described in it continues to exist – which may be forever
F the even is certain to happen then it is not a fee simple, the nature of a fee simple
estate is that is can potentially last forever
The estate will end automatically on the happening of a specified event, which may or
may not happen
The grantor retains the possibility of a receiver, if the event occurs, the estate will
revert back to the original grantor

Language difference between a determinable fee and conditional

subsequent
Determinable/Conditional
 While/But if
 During/Provided that
 As long as/On condition
 Until/If it happens that
 Will end automatically/Will not end automatically
 Grantor retain possibility of reverter/Grantor retains the right of re-entry

Invalid Conditions
Restrictions on alienability – if the condition restricts from division of property of
owner, it is invalid
Restrictions that are invalid on grounds of uncertainty
Restrictions on marriage
Ethnic of sectarian restrictions
Religious restrictions
Equitable Life Estate
 A life estate is an interest in land for as long as a person lives
 The estate will REVERT to the remainderman upon death in fee simple
 Section 11 LCLRA 2009 makes Life Estates EQUITABLE ONLY! Legal Life Estates
can no longer be created
 Where a life estate is created out of freehold land a trust will come into
operation. The person granted the life estate is the beneficiary of the trust.
 Subject to the Doctrine of Waste - conversion of a life estate into an equitable
interest only by the 2009 Act does not affect a life owner’s liability for waste.
Duration and alienability
 Duration of a life estate only lasts for the chosen persons lifetime
 Cestui que vie – the person whose life is chosen
 Pur autre vie – the life of another (determines on death of someone other than
the holder)
 The holder of a life estate CAN alienate their interest BUT the interest will
terminate upon their death
 The buyer will have to forfeit the land upon their death
 It will revert to the remainderman

Pre 2009 Fee Tail

 An estate of inheritance which sought to keep property within the
bloodline
 Medieval “maritagium” – limiting the class of heirs who can inherit
 Fee tail general/fee tail male/fee tail female/fee tail special
 The tenant in tail could not sell the land to someone else. The buyer would
only acquire an interest for the duration of the life of the tenant in tail.
 LCLRA 2009 prohibits the creation of future fee tails (Section 13) An attempt to
create a fee tail will result in the creation of a fee simple estate
 Where a person was entitled to a fee tail prior to the enactment of the 2009 Act,
a fee simple estate will vest in that person (Section13(3))
 There is no need to enrol a deed subject to the 1834 Act provided that the
protectorship has ended
Duration and alienability
 The tenant in tail essentially held a life estate which would pass to descendants
only.
 The estate would end when the bloodline dried up.
 The fee tail estate was Inalienable
 Tenant in tail could not sell or dispose of the estate by will
 Barring the entail was subject to the Fines and Recoveries Act 1834
 Consent of the “protector” needed to bar the entail
 Not subject to doctrine of waste
Doctrine of Estates – Leasehold Estates

What is an estate?
The law measures ownership of land in terms of estates –Section 10(1) LCLRA 2009
The term estate is used to describe the portion of time during which an individual is
entitled to exercise rights of ownership over land
Lyall defines an Estate as a ‘period of time for which a person has rights and duties
over the land’
The nature of the estate will dictate
the duration
rights and responsibilities over the land

Leasehold Estates
 A leasehold interest is a lesser estate than a freehold interest
 Leasehold estates are for a certain duration - a tenant holds property for a term
of years and subject to conditions and rent – based on contract
 S.11(2) LCLRA 2009 describes a leasehold estate as arising when a tenancy is
created for any period of time or any recurring period
 Leasehold estates are carved out of the freehold estate (one stick in the bundle
of rights)
 The Lessor is the freeholder who lets his property for a certain term e.g.
Yearly/monthly. Subleases are carved out of leases and the lessor in that case is
the lessee in the Head Lease
Bundle of Rights
Fee simple (Freehold) 66% -
Leasehold 20%
Sublease 14%

Types of leaseholds
Leases for a term certain/fixed term lease
 These are relatively common and straightforward
 Duration of the lease is determined from the beginning
 Once the term expires, the lease terminates automatically
 The lease can include a clause to the effect that a specific period of notice is
given
 A renewal clause will not change the type of lease
Periodic tenancy
 Lease lasts for a definitive period of time that renews automatically
 These tenancies can be express or implied
 Duration of the tenancy will be the same as the periods of rental payment.
 The periodic tenancy will come to an end when either the tenant or landlord
gives notice to that effect.
 Notice periods required are set out in the Residential Tenancies Act 2004

Reversionary leases
 Almost all leases are followed by a reversion in favour of the landlord
 This means that the landlord is entitled to reversion after the period specified in
the lease has come to an end
 The landlord can also grant a separate lease to begin after one lease comes to
an end
 A lease that is set to begin within the landlord’s reversion is called a
reversionary lease
 S. 11(3)(a) LCLRA provides for reversionary leases

Leases forever
 LCLRA 2009:
 Fee grant grants can no longer be created (s. 12(1))
 Any attempt to create a FFG or lease for lives or years that is perpetually
renewable will instead create a FS (s. 12(2))
Tenancy at will; no longer exist in law
 The law used to recognise this type of estate, which were tenancies that lasted
for an indefinite period of time and were not necessarily subject to a payment.
They could be terminated at the will of either party
 In effect they were more like licenses, particularly when based on a family
relationship
 N.B: They no longer exist in law as they are not included in the
definition of a leasehold estate under s. 11(3) LCLRA
Tenancy at sufferance; no longer exist in law
 These types of leases arose where a tenant held over the tenancy when the
time period expressed in the tenancy agreement had come to an end
 The tenant was not entitled to possession of the property, but the relationship
between the landlord and tenant was a leasehold one
 N.B: They no longer exist in law as they are not included in the
definition of a leasehold estate under section 11(3) LCLRA

Adverse Possession
The owner of the land can be dispossessed of their land if they don’t use it. If
someone else uses that land, and may take possession of that land instead
The default rule of finding is first possession, finder maintains the strongest
possession against anyone, accept the original owner. If the true owners interest in
the property is gone, the finder may have now the strongest claim to the property
In other words, the doctrine of Adverse Possession:
 Allows trespassers to gain ownership over a certain area given they meet the
required criteria and if
 The original owner fails to reclaim their land within an appropriate time period
Limitation Periods
 The doctrine of adverse possession is governed by the Statute of Limitaions
1957
 Limitation periods are time limits in which you can bring a claim. They are
absolute - strict rules against inordinate and inexcusable delay!
 Limitation Periods can bar your cause of action.
 In land law they can also extinguish your interest in a property (subject to a
squatter taking possession and the paper title owner being dispossessed)
 In essence, it bars your action to recover land which has been possessed by a
third party
 Adverse Possession Law provides against the futile use of land/ The Law wants
Landowners to invest in their Property/Onus on Landowners to exercise their
rights over their Property

Squatters Rights
Adverse Possession is a doctrine allowing a “squatter” or “trespasser” to claim
rights in land IF…
 Certain rules are satisfied by the squatter
 The paper title of the owner fails to evict the squatter or trespasser within the
statutory time period

Time limits to recover land

12 years generally (S.13(2a) Statute of Limitations)
30 years if land owned by state authority (S.13(1a) Statute of Limitations)
60 ears if the land is foreshore(S.13(1b) Statute of Limitations)

Statutory Authority S. 2(1) SoL:

  “State authority” means any authority being—
 (a) a Minister of State, or
 (b) the Commissioners of Public Works in Ireland, or
 (c) the Irish Land Commission, or
 (d) the Revenue Commissioners, or
 (e) the Attorney General’.
 *NB* This definition excludes local government – county councils, urban
district councils etc. Also excludes the Chief State Solicitor (O'Hagan v Grogan
[2012] IESC 8).
 So the ordinary period – 12 years – in which to initiate action applies to
these.

Proving Adverse Possession

Adverse possession/trespasser must demonstrate that they have been in possession
of the property for these time periods
Following the lapse of the requisite period, the paper title owner in then statute barred
from bringing a claim to recover the land
The squatters right of action begins to run when two elements are present
 The paper title owner has given up the possession of the land
 The squatter takes possession of the land

Squatter must prove

 Possession is adverse
 Factual possession
 A necessary intention – animus possidendi
 Dispossession of the true owner
 Absence of a defence

Possession Is adverse
 Section 18(1) of the 1957 Act: time must run in favour of someone – there
needs to be a trespasser
 Trespassing is not a problem with Adverse Possession - Possession must be
adverse to the True Owners Title
 Lyall: “must not be by consent”
 If you are there with permission it is NOT adverse. You must be a Trespasser!
– Allen v Mathews [2007]
 Possession must be inconsistent with the title of the true owner Murphy v
Murphy [1980]
 If the squatter acknowledges the landowner, possession is not adverse
 Acquiescence is not permission!

Factual Possession
 Lyall: “An Appropriate Degree of Physical Control” over the particular
piece of land
 An External Act over the Land
  Dunne v Iarnrod Eireann: “sufficient degree of exclusive physical control
must depend on the circumstances, in particular the nature of the land and
the manner in which land of that nature is commonly used or enjoyed”
 Character & Value of the Property – How can the Property be used? - The
Lord Advocate v Lord Lorat [1880]
Proving Factual Possession
 Grazing cattle – Convey v Regan
 Farming not sufficient in Dunne v Iamrod Eireann
 Fencing – Seamus Durack Manufacturing v Considine / Murphy v Murphy
 Walls, locks, guard dogs, signage, drainage
 Dumping and temporary storage. Storage will not be sufficient to prove factual
possession (inconsistent with intention to possess exclusively) – Doyle v O’Neill
 Dealing with the land “as an occupying owner might have been expected to” –
Powel v McFarlane

Animus Possidendi
 In addition to factual possession, squatter must also demonstrate and intention
to possess the property to the exclusion of all others
 The Court will look at the State of mind of the Trespasser- Feehan v Leamy
[2000]
 Murphy v Murphy as per Kenny J: “involves an intention to exclude the true
owner, and all other persons, from enjoyment of the estate or interest which is
being acquired”
 What is the intention behind the act of possession?- Fruin v Fruin (building a
fence to keep people in rather than keep people out)
 The squatter does not need to know that they are trespassing so long as they
are acting with the intention of dispossessing the true owner
 Lyall: “A person who occupies land mistakenly believing it to be their own can
extinguish the title of the owner” – McMahon v Kerry Co. Counsel

Dispossession of the paper title owner

 In addition to factual possession, squatter must also demonstrate and intention
to possess the property to the exclusion of all others
 The Court will look at the State of mind of the Trespasser- Feehan v Leamy
[2000]
 Murphy v Murphy as per Kenny J: “involves an intention to exclude the true
owner, and all other persons, from enjoyment of the estate or interest which is
being acquired”
 What is the intention behind the act of possession?- Fruin v Fruin (building a
fence to keep people in rather than keep people out)
 The squatter does not need to know that they are trespassing so long as they
are acting with the intention of dispossessing the true owner
 Lyall: “A person who occupies land mistakenly believing it to be their own can
extinguish the title of the owner” – McMahon v Kerry Co. Counsel
The clock starts running when
  Paper title owner has been dispossessed
 Squatter takes possession

Defences/Stopping the clock

 The clock can reset in certain circumstances and the squatter will not be
successful if the paper title owner can provide a defence
 Acknowledgement by the trespasser that the dispossessed landowner has
better title– Acknowledgement must be in writing and signed by Trespasser –
Section 58 SOL.(Good Challenger Navegante SA v Metalexpoitemport SA)
Once the full limitation period has run no acknowledgment can revive the
dispossessed owner’s right of action (Bellew v. Bellew [1982] IR 447)
 Offer to Purchase/Lease - Eddington v Clark/Rohman v Benfield. Without
Prejudice Offers may not be relied upon!
 Landowner regains Possession- Dunne v Iarnroid Eireann [2007] the
landowner must visit the land on a regular basis and demand the trespasser to
leave or assert physical control over the land. Letters from landowner to
trespasser saying “get off my property” will not be sufficient. However minimal
acts of ownership will be sufficient
 Initiate trespass proceedings – best way to stop the clock
 Evidence of future use for land – Rule in Leigh v. Jack

Future use of land

 Sometimes Landowners will retain property with the Intention of Using it for a
Specific Purpose sometime in the future.. Can this be Adversely Possessed?
 Leigh v Jack [1879]- Held that for the land to be adversely possessed the
Squatters Possession must be Inconsistent with the Intended Future Use of the
True Owner. This position abandoned by UK House of Lords in J.A. Pye (Oxford)
Ltd v Graham
 This has been accepted in Ireland- BUT Case Law is conflicted!
 Refused by Baron J in Seamus Durack Manufacturing Ltd v Considine – However,
the court did find that the future use of landowner would be relevant where it
could be proven that the squatter was aware of the future use. If the squatter is
aware that the land is to be used by the owner in the future, the squatter cannot
have the relevant Animus Possedendi or Intention to Possess exclusively, they
would merely intend to possess on a temporary or interim basis.
 Ruling applied in Dundalk UDC v John Conway and Cork Corporation v Lynch
 BE AWARE WHEN DEALING WITH PROBLEM QUESTIONS!
Is there property in a corpse?
No property rule – how its developed (there is no property in human body)
Discuss the no property rule, good starting point

Talk about succession law – testamentary disposition and bury instructions and how
they are unenforceable. They are only as enforceable as the relatives make it be
Burial disputes and possession of the dead body for purposes of burial or keeping
ashes

What you really have to answer – actually answer the posed question, explaining what
limitations or “ifs and buts” are there

Cases
R. v Kelly (Anthony Noel)
Property Rights: human body and separated
human tissue

No Property in the Body Rule

 Common law position: there is ‘no property’ in the human body or its parts.
 Human Body is nullius in bonis (Legal ownership of nobody)
 Developed from misinterpretation of 17th Century case relating to graverobbing
and legal commentary which followed.
 Re Haynes’ Case
 Williams v. Williams
 R v. Sharpe
 The rule is frequently cited as a present feature of the common law - R v. Kelly
and Lindsay & Dobson v. North Tyneside Health Authority

Exceptions to No Property Rule

Right of Burial
 Right of possession of next of kin to facilitate burial of a deceased body
 General duty to dispose of body
 Coroner and Police Officers
 Public Health and Safety/Human Rights
 Not in the nature of Ownership
 Quasi- Property in the U.S and Canada
Work and Skill
 Doodeward and Spence (1908) 6 CLR 406
 Application of work or skill can transform human body or part from a res null to
a res
 Dobson v. North Tyneside Health Authority
 R v. Kelly and Lindsay
Control over Tissue
Moore v. Regents of the University of California (1990) 51 Cal. 3d 120.
 Cell line developed with plaintiffs cells.
 Consent to surgery but not to research.
 Unsuccessful in claim for conversion of his property.
 Court not satisfied that Moore had any intention to control the tissue upon
separation from his body.
Objections to treating the human body as property
Some argue that treating the body as property can lead to…
 Morally objectionable practices- sale of organs, prostitution, slavery
 Disaggregation
 Commercialization

Co-ownership
 Co-ownership arises where two or more persons are entitled to the simultaneous
or concurrent enjoyment of land
 Rules of co-ownership dictate the rights and obligations of co-owners (right of
alienation, right to possession, apply for court courts etc.)
 Co-ownership exists in respect of freehold and leasehold land
 The use of the word “tenancy” may be misleading, as it is unrelated to the
relationship of landlord and tenant but merely refers to the holding of an estate
or interest in land
 In a joint tenancy or tenancy in common the land is held by the co-owners in
such a way that, when they deal with other parties, they act as a single unit or
party. However, as between themselves the positions of joint tenants and
tenants in common are different
 Depending on which form of co-ownership applies, the individual co-owners are
referred to as “joint tenants” or “tenants-in-common”
 It is sometimes said that the common law prefers joint tenancy, while equity
prefers the tenancy in common (which students should simply bear in mind for
now)


Types of Co-ownership
Joint Tenancy
 Each of the co-owners is entitled to 100% of the property – their ownership is
not split in terms of shares
 Key principle of a joint tenancy when compared to a tenancy in common may be
seen in its essential elements:
 the presence of the four unities
 the right of survivorship (or jus accrescendi)
Tenants in Common
 Tenants in common have distinct (but undivided) shares - Shares of ownership
generally reflect the contributions towards the purchase of the property
 There is no right of survivorship and the share of a tenant in common will be
part of his estate on his death.
 The only unity required for a tenancy in common is that of possession

The Four Unities

The four unities - unity of possession, interest, title and time – must all be
present for a joint tenancy to exist
  Possession – each co-owner is entitled to possess 100% of the property. A joint
tenant cannot exclude another joint tenant from any part of their land – Dennis
v. McDonald
 Interest – each joint tenant must hold the same interest in the land
 Title - all the joint tenants should have acquired their interests in the land by
the same title - by the same deed or will or by acts of simultaneous possession
 Time - the interest of each joint tenant must vest at the same time

The Right of Survivorship

Each joint tenant has an undivided share in the land
On the death of a joint tenant, that share passes automatically to the surviving joint
tenants by the right of survivorship
It does not form part of the deceased’s estate. Survivorship takes precedent over any
disposition in the will of a joint tenant
Codified in s. 4(c) Succession Act 1965.
As the surviving joint tenants die, their undivided shares automatically pass to those
still alive until only one is left, who becomes sole owner of the land

Exception – Commorientes
 Commorientes is where all of the joint tenants die together, and it is not
possible to ascertain who the last survivor of the joint tenancy was – i.e. you
cannot identify which joint tenant’s estate is entitled to sole ownership
 The common law held that in such circumstances there could be no survivorship
and the heirs of the deceased joint tenants inherited the property as joint
tenants (Section 5 of the Succession Act 1965)
 However, the section has now been amended by Section 68 of the Civil Law
(Miscellaneous Provisions) Act 2008 with the additional provisions:
 (2) Where immediately prior to the death of two or more persons they held any
property as joint tenants and they died, or under subsection (1) were deemed to
have died, simultaneously, they shall be deemed to have held the
property immediately prior to their deaths as tenants in common in
equal shares
 (3) Property deemed under subsection (2) to have been held by persons as
tenants in common shall form part of their respective estates
 Essentially, it severs or converts the tenancy from a joint tenancy to a
tenancy in common

Exception – Unlawful Killing

 Another issue arises in cases where one joint tenant unlawfully kills the other
 Succession Act s.120 prohibits beneficiaries from inheriting from a deceased
person’s estate, where the beneficiary unlawfully killed the deceased
(unworthiness to succeed)
  BUT property held in a joint tenancy does not form part of the estate of a
deceased person because of the right of survivorship, thus, the rule in s. 120
Succession Act 1965 does not apply to joint tenancy
 Succession act did not anticipate unlawful killing in respect of joint tenancies
Cawley v Lillis [2011] IEHC 515
 In Cawley & Ors v. Lillis, the surviving joint tenant was convicted of the
manslaughter of his wife, who had been the only other joint tenant
 In her judgment Laffoy J held, inter alia:
 Severance did not occur on the death of the deceased , the joint assets had
accrued to the defendant solely
 However, on the death of the deceased, the joint assets became vested in the
defendant upon a constructive trust as to one half share for the defendant in his
own right and as to the other one half share upon trust for the benefit of the
estate of the deceased
 Ideally, legislation was required to be enacted prescribing the destination of co-
owned property in the event of the unlawful killing of one of the co-owners by
another co-owner


Creating a joint tenancy/tenancy in common

 Co-ownership exists in both law and equity
 Law favours joint tenancy - Where there is a conveyance to two or more
persons, there is a presumption in law that it is a joint tenancy – However this
can be rebutted:
 As the four unities are essential for a joint tenancy, the lack of any one of them
prevents the creation of a joint tenancy
 It is also possible to use words of severance to show that the co-owners are to
take distinct shares in the property, thus creating a tenancy in common.
Expressions such as “in equal shares”, “equally”, “among” or “between” have
been held to be such words of severance
 Equity is said to “lean against joint tenancies” on the basis that a fairer division
of the ownership may be achieved. This may mean that a court will accept that
there is a joint tenancy at law but that the joint tenants hold the property on
trust for themselves as tenants in common.
Typically, equity will presume a tic where:
 The parties make an unequal contribution to the purchase price
 It is a commercial arrangement
 In the case of co-mortgagees (lenders)
 It is perceived from the intention of the parties
Unequal Contributions
 Bull v Bull [1955 1 QB 234
 Jones v Jones [1977] 2 All ER 231

Severance of Joint Tenancy

  Severance refers to the ways in which a joint tenancy is converted into a
tenancy in common
 Although joint tenants do not have specified shares as such in the property, it is
possible by destruction of one of the four unities essential for a joint tenancy to
sever a joint tenancy and convert it into a tenancy in common
 On severance, the undivided shares of the tenants in common are then equal
shares commensurate with the number of joint tenants at the time of severance
 Severance can occur in both law and equity

Severance in Law
 Acquisition of an additional interest
 One joint tenant alienates their interest to a third party
 An act of a third party exercising statutory powers (e.g. a receiver)
All of these result in the destruction of the unity of title, time or the unity of
interest
 Commorientes (simultaneous death of all JTs) will also sever joint tenancy in
law
 Unlawful killing of JT does not sever tenancy – constructive trust!
Additional Interest
 Where one joint tenant acquires an additional interest in the property as against
another joint tenant, the joint tenancy will sever to a tenancy in common
 Flynn v. Flynn [1930] IR 337
 *NB* you need 4 unities for joint tenancy - Destruction in the unity of
interest = tenancy in common
Alienation of Interest to third party
 Where one joint tenant alienates their interest to a third party, the joint tenancy
will sever to a tenancy in common as between the new tenant in common and
the remaining joint tenants
 Destruction in unity of time and title
 Joint tenancy between the remaining joint tenants still exists – no destruction of
unities in their respect – i.e survivorship
LCLRA 2009
 Pre LCLRA 2009, any joint tenant could unilaterally sever the joint tenancy
without the consent of the other joint tenants
 S 30 LCLRA 2009 – any conveyance, or contract for a conveyance, of land held
in a joint tenancy, or the acquisition of another interest in such land, by a joint
tenant without the consent of the other joint tenants is void both at law
and in equity
 Joint tenant (who wishes to alienate interest) can apply for a court order to have
consent dispensed with under s 31(2)(e) where it is unreasonably withheld
Third Party Exercising Statutory Powers
  Pre 2009, the most common example of this arose when a creditor obtained a
judgment mortgage against one joint tenant
 Registration of a judgment mortgage against a joint tenant’s interest in
unregistered land held in joint tenancy, severed the joint tenancy -
Containercare (Ireland) Ltd v Wycherley (1982) IR 143
 However, registration of a judgment mortgage against a joint tenant’s interest
in registered land did not sever the joint tenancy - Irwin v Deasy (2011)
 s. 30(3) LCLRA 2009: registration of a judgment mortgage against the
estate or interest in land of a joint tenant does not sever the joint
tenancy and if the joint tenancy remains unsevered, the judgment mortgage
is extinguished upon the death of the judgment debtor’ – See also:
Mahon v. Lawlor
 Judgment mortgagee (creditor) can apply to court for a range of orders (such as
an order for sale or an order for partition) under s. 31 LCLRA 2009

Severance in Equity – Williams v Hensman
 When it furthers the mutual intention of the parties
 In the course of dealings
 Contract by one joint tenant (acting on their own share)
Mutual Agreement
 Court looks to the mutual intentions of the joint tenants to see if they
intended to server the joint tenancy
 Intentions must be mutual and expressed openly
 Burgess v Rawnsley [1975] 1 Ch 429
Course of dealings
 Court has jurisdiction to sever tenancy in equity based on mutual agreement or
conduct of the tenants.
 E.g. negotiations intended to sever the joint tenancy that are not formalised (as
in Burgess v Rawnsley [1975] 1 Ch 429)
Contract by joint tenant
 When one tenant alienates their share, but the transaction is not completed -
Tempany v Hynes [1976] IR 101
 A contract is entered into, but not completed and the purchaser has paid
monies, the purchaser will acquire an interest in equity (the interest normally
reflects the amount paid)- this breaks the unity of title.
 s. 52 (1) LCLRA states the purchaser is entitled to the entire beneficial interest
in the property.
 No severance in law, because the four unities remain (contract is not complete)
 Consent of other joint tenants is required under s. 30(1) LCLRA, otherwise the
transaction is void ‘at law and in equity’

Termination of co-ownership
Termination of co-ownership is different from severance of a joint tenancy. Co-
ownership ends where:
  The number of co-owners is reduced to one (vesting in a sole owner)
 The unity of possession is destroyed (because this is required for both joint
tenancy and tenancy in common)
Union in sole owner – co-ownership cannot exist if there is only one owner
In respect of joint tenancy:
 This occurs under the right of survivorship
 One joint tenant may also buy out the other joint tenants (normally done by a
release, each release severs that share from the joint tenancy until one owner is
left)
 Prior written consent required under s.30 LCLRA
In respect of tenants in common:
 One co-owner will buy out the others or otherwise acquire the interests of the
other co-owners

Family Property

Introduction to the family home

 The ‘family’ is attributed significant value in Irish law - Constitutional Protection -
Article 41
 The State recognises the Family as the natural primary and fundamental unit
group of Society, and as a moral institution possessing inalienable and
imprescriptible rights, antecedent and superior to all positive law
 Protection at an EU level – Right to respect for private and family life – Article 8
ECHR
 Family property, particularly ‘the family home’ is treated differently to other
types of property
 The law recognises the significant role that the Family Home plays in our daily
lives and extends greater protection to them
 Several acts of legislation which protect peoples interests in family home -
Equitable principles also apply

Legislation that protects the family home

 Family Home Protection Act 1976 (s.3 and s.5 especially)
 Civil Partnership and Certain Rights of Cohabitants Act 2010
 Domestic Violence Act 1996
 Family Law (Divorce Act) 1995/1996; Judicial Separation and Family Law Reform
Act 1989
 The Family Law Act 1981

The ‘family’ home in Irish Law

  Unless you are married, for the purposes of the Irish constitution, a family home
will be the ordinary residence of the marital family
 Only a family based on marriage can enjoy the constitutional protection

The Home Protection Act 1976

 Only in single ownership of family homes, meaning one of the spouses does not
have an interest in the home/does not have ownership of the property
 Historically, the husband has had the sole interest in the property, which left the
wife vulnerable to the man’s management of the property
 The act however is gender neutral
The Act
 Prevents the sale, partial sale, mortgage or re-mortgage of a property which is
defined as a ’family home’ under the terms of the Act without the knowledge
and consent of both spouses therein residing – (Section 3)
 Grants court power to pass interest in home to non-owning spouse or another
party, in cases where the owning spouse is engaging in conduct that may lead
to the loss of the family home or may render it unsuitable for habitation as a
family home - (Section 5)
The Act will protect married couples only!
 A ‘Family Home’ is defined in Section 2(1) as: ‘a dwelling in which a married
couple ordinarily reside’
 A ‘Married Couple’ is a couple who are married in a manner which is recognised
by Irish Law. The marriage does not need to be functional or intimate – LB v
HB [1980] ILRM 257 and SOB v MOB [1981] Unreported
 ‘Dwelling’ is quite broad. Not limited to houses. Can encompass any building,
structure, vessel, (mobile or not). It does not extend to property being used for
commercial purposes - Section 54 Family Law Act 1995.
 Sometimes Family Homes will constitute part of a larger landholding i.e. Farm or
Business Premises
 The Court can sever the land into ‘the home’ which will be protected by the
Act and ‘the non-home’ which will not be protected – AIB v O’Neill [1995] 2
IR 473

Section 3 – consent by non-owning spouse to conveyance

 Section 3 of FHPA 1976 provides the non-owning spouse with a ‘veto’ over
proposed conveyances of the Family Home. It is not an absolute bar to all
conveyances and does not confer any property rights to the non-owning spouse
 Section 3(1) : ‘where a spouse without the prior consent in writing of the other
spouse, purports to convey any interest in the family home to any person,
except the other spouse… the purported conveyance shall be void’
 A failure to require valid prior consent can result in the conveyance being
declared void by a court within 6 years of the conveyance. (Section 3(8))
 The ‘purchaser’ in these cases will not be entitled to specific performance under
the contract, Rather, a recovery of the monies advanced – RE: Barrett
Apartments LTD [1985] IR 350
  The purchaser’s solicitor will primarily be responsible for compliance with the
Act
 In the case of a mortgage application, it is the responsibility of the lending
institution to ensure that the rights of any spouse in actual occupation of the
property have been safeguarded
 Court can dispense with consent under Section 4 if unreasonably withheld
Consent Requirements
 Prior to conveyance
 In writing
 Valid

Prior to Conveyance
 The Act states that consent must be acquired ‘prior to the conveyance’. Yet in
practice the Court have been quite relaxed with this. It appears that consent
must be acquired prior to the completion of the conveyance.
 Bank of Ireland v Hanrahan [1987]: Facts: H. visited bank with the land
certificate with the intention of creating an equitable mortgage. Bank informed
H that his wife’s consent was required. H left the land cert with the bank and
returned later with his wife, who executed the consent form. O’Hanlon J: the
prior consent of H’s wife to the equitable mortgage had been given. There was
an agreement that the bank was merely the custodian of the land cert until the
consent was executed. This position changed once consent was given.
 De Londres criticises the Courts approach in Hanrahan and suggests that it
potentially encourages ‘lackadaisical attitudes’ towards this element of the
section 3 requirement.
 Section 3(9) FHPA 1976 provides that spouses can give ‘general consent’ to
future conveyances.

In Writing
 Consent of non-owning spouse must be written
 You cannot give oral consent under s.3 FHPR
 No particular form strictly required by the Act

Valid Consent
Consent must be valid
 Voluntary – Cannot be acquired through undue influence or duress
 Fully informed – Consent must be fully informed
In order to give valid consent you must have knowledge of what you are approving!
Bank of Ireland v Smyth [1995] 2 IR 459
 Blayney J stated that consent under section 3 ‘must be a fully informed consent.
The spouse giving it must know what it is that he or she is consenting to. Since
giving ones consent means that one is approving of something, obviously a
 precondition is that one should have knowledge of what it is that one is
approving’
 Facts:
 Wife signed a deed of charge in favour of BOI over registered land owned by her
husband. The land consisted of a farm, including the family home, which had
been built with a loan secured by a mortgage on the farm. When signing the
consent form, Wife was not aware that BOI would have right to possess of the
family home, which was incorrect. Wife argued that she did not have a proper
understanding of what she was signing, which invalidated her consent.
 HC (Geoghegan J.)):
 Agreed with Wife and stated that the bank should have taken reasonable steps
to ensure that Wife understood the circumstances, or advise her to get
independent legal advice.
 Married women are a ‘protected class’ because of the reliance on and influence
of their husbands.
Supreme Court upheld the decision of the High Court, but on narrower grounds.
1. Purpose of the FHPA was not just to protect the non-owning spouse, but to
protect the family.
2. Consent must be ‘fully informed’.
3. Onus on bank to prove that valid consent had been given, which was lacking in
the immediate case.
4. Bank should have made enquiries with Wife to determine the state of her
knowledge.

Exceptions
Conveyance by Third Parties
 Section 3 only provides non-owning spouses with a veto over conveyances
made by the other spouse. Where a third party has power to convey an interest
in the family home, consent of the non-owning spouse will not be required. (E.G
Judgment mortgages).
Conveyance Prior to Introduction of Legislation
 Conveyances made prior to the introduction of the Act are not subject to the
requirements of the Act – Hamilton v Hamilton and Dunne [1992] IR 466.
Conveyances Prior to the Marriage
 where the conveyance is carried out prior to the valid marriage of the parties,
section 3 will not apply. The home would not fall under the definition of a
‘Family Home’
Conveyances to the Non-Owning Spouse
 in cases where the owning spouse is conveying an interest in the family home to
the non-owning spouse consent under section 3 is not required.
Conveyance to a Purchaser for Full Value – Bona Fide purchaser
 Section 3 of the 1976 Act does not apply in the case of a bona fide purchaser for
full value without notice
 But it is remarkably difficult to envisage a scenario where, if appropriate
conveyancing standards are adhered to, such a bona fide purchaser could be
said to be without notice of the breach
 A purchaser for full value is defined in section 3(3) as a ‘grantee, lessee,
assignee, mortgagee, chargeant or other person who in good faith acquires
an interest in the property’
 Supreme Court in Sommers v Weir held that a purchaser for full value is acting
in ‘good faith’ when they pay FULL VALUE for the property and are without
notice of the consent requirement or lack of valid consent –
 Contrast in judgments of Sommers v Weir [1976] IR 94 and Reynolds v. Waters
[1982] ILRM 335
 The burden will be on the party proving the validity of the conveyance

Essay notes:
Bodies have been treated as property before, for rather unethical means
Can you leave your body in your will? Wills are only as binding as the family makes
them binding
Start essay on use of dead body for attraction, Samonella video
If you do ot have the duty to bury the body, you do not have the right to possess the
body
Death on someones property – the land owner will have possession (not ownership) of
the body for purpose of burial, until someone with greater possession shows up