1 December 2009 by Clodagh O'Hagan
The Land and Conveyancing Law Reform Act 2009 (“the Act”) was signed into law in July 2009 and the majority of its provisions will take effect from 1 December 2009. The Act modernises, reforms and replaces land and conveyancing laws dating back to the 1700s and aims to simplify the conveyancing process.
We would like to point out a number of provisions which we feel are important to highlight:
- Estates (Part 2/3) - Legal interest in land will vest in possession, freehold or leasehold and future interests will mostly be equitable interests. Old tenures such as the Fee Farm Grants and Fee Tail estates have been abolished together with the rule against perpetuities.
- Variation of Trusts (Part 5) – A party to a trust may apply to Court to vary the terms of the trust. The Courts consent to vary or approve an arrangement must be made on notice to the Revenue Commissioners and must take all beneficiaries interests into account.
- Joint Tenancies (Part 7) - Joint tenancies can only be severed on consent of all joint owners. A court application may be made to partition, sell and sever the co-owned property.
- Easements (Part 8) – After 1 December 2009, easements such as rights of way acquired at law by prescription (long use) will only be acquired by registration of a court order showing 12 years continued use. The user of the right must use or enjoy the right without force, secrecy or consent and without interruption. Therefore after 12 years of non use, an easement or profit á prendre will be extinguished unless it is registered. Owners are required to obtain and register the court order to acquire the rights within the next 3 years.
- Party Structures - A new framework is introduced to deal with party structures such as dividing walls and boundaries. An adjoining land owner has a right to carry out works to comply with a notice, order or preserve the structure and can enter onto neighbouring lands to carry out works. The adjoining owner must make good any damage caused but may also claim for a contribution for the works from the neighbouring owner in proportion to his likely use and enjoyment of the works. This amount can be recovered as a simple contract debt. A District Court application may be made for a Works Order to authorise works on the structure in the event of a dispute.
- Freehold Covenants - Freehold covenants both positive and negative can be enforced against successors in title. It is likely to be used in schemes of development so that long leases in apartment complexes and estates will be phased out.
- Contracts for Sale (Part 9) – On signing of an enforceable contract the entire beneficial interest in the property will pass to the purchaser. The Vendor will still be responsible for the property and carry the risk of loss or damage until the sale is completed.
- Mortgages (Part 10) - Housing loans are distinguished from commercial loans and all future legal mortgages can only be created by a deed of charge. The Act sets out the powers and rights of mortgagees and mortgagors and there are new sections dealing with future advances and leases by mortgagees.
- Judgment Mortgages (Part 11) - The Act simplifies the process to register a judgment mortgage obtained by a creditor. The remedies available are to apply for an order for sale or wait for a sale by the landowner.
- Rent Review (Part 14)- From 28 February 2010, upwards only rent review clauses in new leases will no longer be permitted.
Further Information:
Please contact: Clodagh O'Hagan - cohagan@mckr.ie – Tel. + 353 1 670 2990
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