Land And Conveyancing Law Reform Act 2009
Acts of the Oireachtas
Source: Acts of the Oireachtas

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paragraphs: — This Act may be cited as the Land and Conveyancing Law Reform Act 2009.
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paragraphs: — This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes and different provisions.
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paragraphs: — In this Act, unless the context otherwise requires—
“ Act of 1957 ” means the Statute of Limitations 1957;
“ Act of 1963 ” means the Companies Act 1963;
“ Act of 1964 ” means the Registration of Title Act 1964 ;
“ Act of 1965 ” means the Succession Act 1965 ;
“Act of 1976” means the Family Home Protection Act 1976 ;
“Act of 1988” means the Bankruptcy Act 1988 ;
“Act of 1989” means the Building Societies Act 1989 ;
“Act of 1995” means the Family Law Act 1995 ;
“Act of 1996” means the Family Law (Divorce) Act 1996 ;
“Act of 2000” means the Planning and Development Act 2000 ;
“Act of 2005” means the Interpretation Act 2005 ;
“Act of 2006” means the Registration of Deeds and Title Act 2006 ;
“assent” has the meaning given to it by section 53 of the Act of 1965;
“consent” includes agreement, licence and permission;
“conveyance” includes an appointment, assent, assignment, charge, disclaimer, lease, mortgage, release, surrender, transfer, vesting certificate, vesting declaration, vesting order and every other assurance by way of instrument except a will; and “convey” shall be read accordingly;
“ the court ” means—
(a) the High Court, or
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paragraphs: — (1) A notice authorised or required to be given or served by or under this Act shall, subject to subsection (2), be addressed to the person concerned by name and may be given to or served on the person in one of the following ways:
(a) by delivering it to the person; or
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address; or
(c) by sending it by post in a prepaid letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address; or
(d) where the notice relates to a building with which the person is associated, and it appears that no person is in actual occupation of the building, by affixing it in a conspicuous position on the outside of the building or the property containing the building; or
(e) if the person concerned has agreed to service of notices by means of an electronic communication (within the meaning given to it by section 2 of the Electronic Commerce Act 2000) to that person (being an addressee within the meaning given to it by that section) and provided that there is a facility to confirm receipt of electronic mail and that such receipt has been confirmed, then by that means; or
(f) by sending it by means of a facsimile machine to a device or facility for the reception of facsimiles located at the address at which the person ordinarily resides or carries on business or, if an address for the service of notices has been furnished by the person, that address, provided that the sender’s facsimile machine generates a message confirming successful transmission of the total number of pages of the notice; or
(g) by any other means that may be prescribed.
(2) Where the notice concerned is to be served on or given to a person who is the owner, landlord, tenant or occupier of a building and the name of the person cannot be ascertained by reasonable inquiry it may be addressed to the person at that building by using the words “the owner”, “the landlord”, “the tenant” or “the occupier” or other like description, as the case may require.
(3) For the purposes of this section, a company shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.
(4) Where a notice required or authorised to be served or given by or under this Act is served or given on behalf of a person, the notice shall be deemed to be served or given by that person.
(5) A person shall not, at any time during the period of 3 months after the notice is affixed under subsection (1)(d), remove, damage or deface the notice without lawful authority.
(6) A person who knowingly contravenes subsection (5) is guilty of an offence.
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paragraphs: — (1) The Minister may make regulations—
(a) for any purpose in relation to which regulations are provided for by any of the provisions of this Act,
(b) for prescribing any matter or thing referred to in this Act as prescribed or to be prescribed,
(c) generally for the purpose of giving effect to this Act.
(2) A regulation under subsection (1) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation is annulled accordingly, but without prejudice to the validity of anything previously done under it.
(3) (a) If in any respect any difficulty arises during the period of 5 years from the commencement of any provision of this Act (including a provision that amends another Act), either in bringing into operation or in giving full effect to the provision or the Act as amended, the Minister may by regulations do anything which appears to be necessary or expedient for removing that difficulty.
(b) In paragraph (a) a reference to another Act is a reference to an Act falling within either paragraph (a) or (b) of the definition of “Act” in section 2(1) of the Act of 2005.
(4) Regulations under subsection (3) may, in so far only as it may appear necessary for the removal of such difficulty, modify a provision referred to in that subsection provided such modification is in conformity with the purposes, principles and spirit of this Act.
(5) Where the Minister proposes to make regulations under subsection (3)—
(a) he or she shall, before doing so, consult with such other (if any) Minister of the Government as the Minister considers appropriate having regard to the functions of that other Minister of the Government in relation to the proposed regulations, and
(b) he or she shall cause a draft of the regulations to be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of the draft has been passed by each such House.
(6) A regulation under this section may contain such consequential, supplementary and ancillary provisions as the Minister considers necessary or expedient.
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paragraphs: — (1) A person convicted of an offence under this Act is liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both.
(2) Proceedings for an offence under this Act may be instituted at any time within one year after the date of the offence.
(3) Where a person is convicted of an offence under this Act the District Court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay the costs and expenses, measured by the Court, incurred in relation to the investigation, detection and prosecution of the offence.
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paragraphs: — The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.
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paragraphs: — (1) Each provision specified in column (2) of Schedule 1 opposite the mention in column (1) of that Schedule of an enactment is amended in the manner specified in column (3).
(2) Subject to subsection (1), and without prejudice to section 26(2)(f) of the Act of 2005—
(a) any reference in an enactment to—
(i) the Settled Land Acts 1882 to 1890,
(ii) an Act included in that collective citation, or
(iii) any provision of such an Act,
shall be construed as a reference to this Act or to the equivalent or substituted provision of this Act, as may be appropriate,
(b) any reference in an enactment to—
(i) the Conveyancing Acts 1881 to 1911, or
(ii) an Act (other than an Act repealed by this Act) included in that collective citation,
shall be construed as including a reference to this Act, and
(c) any reference in an enactment to—
(i) an Act that is included in the collective citation “the Conveyancing Acts 1881 to 1911” and that isrepealed by this Act, or
(ii) any particular provision of such an Act,
shall be construed as a reference to this Act or to the equivalent or substituted provision of this Act.
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paragraphs: — (1) From the commencement of this Part, ownership of land comprises the estates and interests specified in this Part.
(2) In so far as it survives, feudal tenure is abolished.
(3) Subsection (2) does not affect—
(a) the position of the State under—
(i) the State Property Act 1954,
(ii) section 73 of the Act of 1965,
(b) the concept of an estate under section 10 ,
(c) any fee farm grant made in derogation of the Statute Quia Emptores 1290,
(d) any surviving customary right or franchise.
[SQE 1290]
(4) A fee simple remains freely alienable.
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paragraphs: — (1) The concept of an estate in land is retained and, subject to this Act, continues with the interests specified in this Part to denote the nature and extent of land ownership.
(2) Such an estate retains its pre-existing characteristics, but without any tenurial incidents.
(3) All references in any enactment or any instrument (whether made or executed before or after the commencement of this Part) to tenure or estates or interests in land, or to the holder of any such estate or interest, shall be read accordingly.
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paragraphs: — (1) The only legal estates in land which may be created or disposed of are the freehold and leasehold estates specified by this section.
(2) For the purposes of subsection (1), a “ freehold estate ” means a fee simple in possession and includes—
(a) a determinable fee,
(b) a fee simple subject to a right of entry or of re-entry,
(c) a fee simple subject only to—
(i) a power of revocation,
(ii) an annuity or other payment of capital or income for the advancement, maintenance or other benefit of any person, or
(iii) a right of residence which is not an exclusive right over the whole land.
(3) For the purposes of subsection (1), a “leasehold estate” means, subject to sections 12 and 14 , the estate which arises when a tenancy is created for any period of time or any recurring period and irrespective of whether or not the estate—
(a) takes effect in immediate possession or in future, or
(b) is subject to another legal estate or interest, or
(c) is for a term which is uncertain or liable to termination by notice, re-entry or operation of law or by virtue of a provision for cessor on redemption or for any other reason.
(4) The only legal interests in land which may be created or disposed of are—
(a) an easement,
(b) a freehold covenant,
(c) an incumbrance,
(d) a rent payable under a tenancy,
(e) a possibility of reverter,
(f) a profit à prendre, including a mining right,
(g) a public or customary right,
(h) a rentcharge,
(i) a right of entry or of re-entry attached to a legal estate,
(j) a wayleave or other right to lay cables, pipes, wires or other conduits,
(k) any other legal interest created by any statutory provision.
(5) A legal estate or legal interest under this section has, subject to this Act, the same attributes as the corresponding legal estates and interests existing at the commencement of this Part and may exist concurrently with, or subject to, any other legal estate or interest in the same land.
(6) Subject to this Act, estates and interests other than those referred to in subsections (1) to (4) take effect as equitable interests only, but this does not prevent the creation of the estates and interests referred to in those subsections as equitable interests.
(7) Nothing in this Act affects judicial recognition of equitable interests.
(8) Subject to this Act, a power of attorney, power of appointment or other power to dispose of a legal estate or interest in land operates with the same force and effect as such powers had before the commencement of this Part.
(9) All estates and interests in land, whether legal or equitable, may be disposed of.
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paragraphs: — (1) The creation of a fee farm grant at law or in equity is prohibited.
(2) Any instrument executed after the commencement of this Part purporting to—
(a) create a fee farm grant, or
(b) grant a lease for life or lives renewable for ever or for any period which is perpetually renewable,
vests in the purported grantee or lessee a legal fee simple or, as the case may be, an equitable fee simple and any contract for such a grant entered into after such commencement operates as a contract for such a vesting.
(3) A fee simple which vests under subsection (2) is freed and discharged from any covenant or other provision relating to rent, but all other covenants or provisions continue in force so far as consistent with the nature of a fee simple.
(4) Subsection (2) does not apply to any contract or instrument giving effect to a contract entered into before the commencement of this Part.
(5) Notwithstanding section 11 (2), any fee simple held under a fee farm grant existing at law at the commencement of this Part continues as a legal estate and may be disposed of.
(6) Notwithstanding section 11 (4), any fee farm rent existing at law at the commencement of this Part continues as a legal interest and may be disposed of.
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paragraphs: — (1) The creation of a fee tail of any kind at law or in equity is prohibited.
(2) Any instrument executed after the commencement of this Part purporting to create a fee tail in favour of any person vests in that person a legal fee simple or, as the case may be, an equitable fee simple and any contract for such a creation entered into before or after such commencement operates as a contract for such vesting.
(3) Where—
(a) immediately before the commencement of this Part, a person was entitled to a fee tail at law or in equity, or
(b) after such commencement, a person becomes entitled to such a fee tail,
a legal or, as the case may be, an equitable fee simple vests in that person on such commencement or on that person becoming so entitled provided any protectorship has ended.
(4) In subsection (3) “ fee tail ” includes—
(a) a base fee provided the protectorship has ended,
(b) a base fee created by failure to enrol the disentailing deed,
but does not include the estate of a tenant in tail after possibility of issue extinct.
(5) A fee simple which vests under subsection (2) or subsection (3) is—
(a) not subject to any estates or interests limited by the instrument creating the fee tail to take effect after the termination of the fee tail,
(b) subject to any estates or interests limited to take effect in defeasance of the fee tail which would be valid if limited to take effect in defeasance of a fee simple.
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paragraphs: — The grant of a lease for—
(a) a life or lives,
(b) a life or lives combined with a concurrent or reversionary term of any period,
(c) any term coming to an end on the death of a person or persons,
and any contract for such a grant made after the commencement of this Part is void both at law and in equity.
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paragraphs: — (1) Subject to subsection (2), all future interests in land, whether vested or contingent, exist in equity only.
(2) Subsection (1) does not apply to—
(a) a possibility of reverter, or
(b) a right of entry or of re-entry attached to a legal estate.
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paragraphs: — Subject to section 17 , the following rules are abolished:
(a) the rules known as the common law contingent remainder rules;
(b) the rule known as the Rule in Purefoy v. Rogers;
(c) the rule known as the Rule in Whitby v. Mitchell (also known as the old rule against perpetuities and the rule against double possibilities);
(d) the rule against perpetuities;
(e) the rule against accumulations.
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paragraphs: — Section 16 applies to any interest in property whenever created but does not apply if, before the commencement of this Part, in reliance on such an interest being invalid by virtue of the application of any of the rules abolished by that section—
(a) the property has been distributed or otherwise dealt with, or
(b) any person has done or omitted to do any thing which renders the position of that or any other person materially altered to that person’s detriment after the commencement of this Part.
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paragraphs: — (1) Subject to this Part, where land is—
[[SLA 1882, ss. 2, 59, 60]
(a) for the time being limited by an instrument, whenever executed, to persons by way of succession without the interposition of a trust (in this Part referred to as a “ strict settlement ”), or
(b) held, either with or without other property, on a trust whenever it arises and of whatever kind, or
(c) vested, whether before or after the commencement of this Part, in a minor,
there is a trust of land for the purposes of this Part.
(2) For the purposes of—
(a) subsection (1)(a), a strict settlement exists where an estate or interest in reversion or remainder is not disposed of and reverts to the settlor or the testator’s successors in title, but does not exist where a person owns a fee simple in possession,
(b) subsection (1)(b), a trust includes an express, implied, resulting, constructive and bare trust and a trust for sale.
(3) Subject to this Part, a trust of land is governed by the general law of trusts.
(4) Conversion of a life estate into an equitable interest only does not affect a life owner’s liability for waste.
[LEA 1695]
(5) Where, by reason of absence from the State or otherwise, it remains uncertain for a period of at least 7 years as to whether a person upon whose life an estate or interest depends is alive, it shall continue to be presumed that the person is dead.
(6) If such presumption is applied to a person but subsequently rebutted by proof to the contrary, that person may bring an action for damages or another remedy for any loss suffered.
(7) In dealing with an action under subsection (6), the court may make such order as appears to it to be just and equitable in the circumstances of the case.
(8) Any party to a conveyance shall, unless the contrary is proved, be presumed to have attained full age at the date of the conveyance.
(9) This Part does not apply to land held directly for a charitable purpose and not by way of a remainder.
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paragraphs: — (1) The following persons are the trustees of a trust of land—
[SLA 1882, ss. 38, 39]
(a) in the case of a strict settlement, where it—
(i) exists at the commencement of this Part, the tenant for life within the meaning of the Settled Land Act 1882 together with any trustees of the settlement for the purposes of that Act,
(ii) is purported to be created after the commencement of this Part, the persons who would fall within paragraph (b) if the instrument creating it were deemed to be an instrument creating a trust of land,
(b) in the case of a trust of land created expressly—
(i) any trustee nominated by the trust instrument, but, if there is no such person, then,
(ii) any person on whom the trust instrument confers a present or future power of sale of the land, or power of consent to or approval of the exercise of such a power of sale, but, if there is no such person, then,
(iii) any person who, under either the trust instrument or the general law of trusts, has power to appoint a trustee of the land, but, if there is no such person, then,
(iv) the settlor or, in the case of a trust created by will, the testator’s personal representative or representatives,
(c) in the case of land vested in a minor before the commencement of this Part or purporting so to vest after such commencement, the persons who would fall within paragraph (b) if the instrument vesting the land were deemed to be an instrument creating a trust of land,
(d) in the case of land the subject of an implied, resulting, constructive or bare trust, the person in whom the legal title to the land is vested.
(2) For the purposes of—
(a) subsection (1)(a)(ii) and (1)(c), the references in subsection (1)(b) to “trustee” and “trustee of the land” include a trustee of the settlement,
(b) subsection (1)(b)(iii) a power to appoint a trustee includes a power to appoint where no previous appointment has been made.
(3) Nothing in this section affects the right of any person to obtain an order of the court appointing a trustee of land or vesting land in a person as trustee.
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paragraphs: — (1) Subject to—
(a) the duties of a trustee, and
(b) any restrictions imposed by any statutory provision (including this Act) or the general law of trusts or by any instrument or court order relating to the land,
a trustee of land has the full power of an owner to convey or otherwise deal with it.
(2) The power of a trustee under subsection (1) includes the power to—
(a) permit a beneficiary to occupy or otherwise use the land on such terms as the trustee thinks fit,
(b) sell the land and to re-invest the proceeds, in whole or in part, in the purchase of land, whether or not situated in the State, for such occupation or use.
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paragraphs: — (1) Subject to subsection (3), a conveyance to a purchaser of a legal estate or legal interest in land by the person or persons specified in subsection (2) overreaches any equitable interest in the land so that it ceases to affect that estate or interest, whether or not the purchaser has notice of the equitable interest.
(2) For the purposes of subsection (1), the “person or persons specified”—
(a) shall be at least two trustees or a trust corporation where the trust land comprises—
(i) a strict settlement, or
(ii) a trust, including a trust for sale, of land held for persons by way of succession, or
(iii) land vested in or held on trust for a minor,
(b) may be a single trustee or owner of the legal estate or interest in the case of any other trust of land.
(3) Subsection (1) does not apply to—
(a) any conveyance made for fraudulent purposes of which the purchaser has actual knowledge at the date of the conveyance or to which the purchaser is a party, or
(b) any equitable interest—
(i) to which the conveyance is expressly made subject, or
(ii) protected by deposit of documents of title relating to the legal estate or legal interest, or
(iii) in the case of a trust coming within subsection (2)(b), protected by registration prior to the date of the conveyance or taking effect as a burden coming within section 72(1)(j) of the Act of 1964 (or, in the case of unregistered land, which would take effect as such a burden if the land were registered land).
(4) In subsection (3)(b)(iii), “registration” means registration in the Registry of Deeds or Land Registry, as appropriate.
(5) Where an equitable interest is overreached under this section it attaches to the proceeds arising from the conveyance and effect shall be given to it accordingly.
(6) Nothing in this section affects the operation of the Act of 1976.
num: 22
paragraphs: — (1) Any person having an interest in a trust of land, or a person acting on behalf of such a person, may apply to the court in a summary manner for an order to resolve a dispute between the—
(a) trustees themselves, or
(b) beneficiaries themselves, or
(c) trustees and beneficiaries, or
(d) trustees or beneficiaries and other persons interested,
in relation to any matter concerning the—
(i) performance of their functions by the trustees, or
(ii) nature or extent of any beneficial or other interest in the land, or
(iii) other operation of the trust.
(2) Subject to subsection (3), in determining an application under subsection (1) the court may make whatever order and direct whatever inquiries it thinks fit in the circumstances of the case.
(3) In considering an application under subsection (1)(i) and (iii) the court shall have regard to the interests of the beneficiaries as a whole and, subject to these, to—
(a) the purposes which the trust of land is intended to achieve,
(b) the interests of any minor or other beneficiary subject to any incapacity,
(c) the interests of any secured creditor of any beneficiary,
(d) any other matter which the court considers relevant.
(4) In subsection (1), “person having an interest” includes a mortgagee or other secured creditor, a judgment mortgagee or a trustee.
(5) Nothing in this section affects the jurisdiction of the court under section 36 of the Act of 1995.
num: 23
paragraphs: — In this Part—
“ appropriate person ”, in relation to a relevant trust, means—
(a) a trustee of, or a beneficiary under, the trust, or
(b) any other person that the court, to which the application concerned under section 24 is made, considers appropriate;
“ arrangement ”, in relation to a relevant trust, means an arrangement—
(a) varying, revoking or resettling the trust, or
(b) varying, enlarging, adding to or restricting the powers of the trustees under the trust to manage or administer the property the subject of the trust;
“ relevant person ”, in relation to a relevant trust, means—
(a) a person who has a vested or contingent interest under the trust but who is incapable of assenting to an arrangement by reason of lack of capacity (whether by reason of minority or absence of mental capacity),
(b) an unborn person,
(c) a person whose identity, existence or whereabouts cannot be established by taking reasonable measures, or
(d) a person who has a contingent interest under the trust but who does not fall within paragraph (a);
“ relevant trust ”—
(a) subject to paragraph (b), means a trust arising, whether before, on or after the commencement of this section, under a will, settlement or other disposition,
(b) does not include—
(i) a trust created for a charitable purpose within the meaning of the Charities Acts 1961 and 1973 and the Charities Act 2009,
(ii) an occupational pension scheme within the meaning of the Pensions Act 1990 established under a trust,
(iii) a trust created by a British statute,
(iv) a trust created by a SaorstÃ¡t Ãireann statute, or
(v) a trust created by an Act of the Oireachtas, whether passed before, on or after the commencement of this section.
num: 24
paragraphs: — (1) An appropriate person may make, in respect of a relevant trust, an application to the court for an order to approve an arrangement specified in the application for the benefit of a relevant person specified in the application if the arrangement has been assented to in writing by each other person (if any) who—
(a) is not a relevant person,
(b) is beneficially interested in the trust, and
(c) is capable of assenting to the arrangement.
(2) The court shall not hear an application made to it under subsection (1) in respect of a relevant trust unless it is satisfied that the applicant has given notice in writing of the application—
(a) to the Revenue Commissioners, and
(b) to such persons as may be prescribed by rules of court,
at least 2 weeks before the hearing of the application.
(3) The court may hear an application made to it under subsection (1) otherwise than in public if it considers that it is appropriate to do so.
(4) The court shall determine an application made to it under subsection (1) in respect of a relevant trust—
(a) subject to paragraph (b), by making an order approving the arrangement specified in the application if it is satisfied that the carrying out of the arrangement would be for the benefit of—
(i) the relevant person specified in the application, and
(ii) any other relevant person,
(b) by refusing to make such an order in any case where—
(i) the court is not satisfied as referred to in paragraph (a), or
(ii) the Revenue Commissioners have satisfied the court that the application is substantially motivated by a desire to avoid, or reduce the incidence of, tax.
(5) In determining under subsection (4) whether an arrangement would be for the benefit of a relevant person, the court may have regard to any benefit or detriment, financial or otherwise, that may accrue to that person directly or indirectly in consequence of the arrangement.
(6) Nothing in this section shall be construed as derogating from or affecting the operation of—
(a) the Charities Acts 1961 and 1973 and the Charities Act 2009,
(b) any power of a court, whether under an enactment or rule of law, to—
(i) vary, revoke or resettle a trust (including a relevant trust), or
(ii) vary, enlarge, add to or restrict the powers of the trustees under a trust (including a relevant trust) to manage or administer the property the subject of the trust,
or
(c) any rule of law relating to the termination or revocation of a trust (including a relevant trust).
num: 25
paragraphs: — Except where stated otherwise, this Part applies to powers created or arising before or after the commencement of this Act.
num: 26
paragraphs: — (1) Subject to subsection (2), an appointment made by deed after the commencement of this Part under a power of appointment is valid provided the instrument making the appointment complies with section 64 .
[LPAA 1859, s. 12]
(2) Subsection (1) does not—
(a) prevent a donee of a power of appointment from making a valid appointment in some other way expressly authorised by the instrument creating the power, or
(b) relieve such a donee from compliance with any direction in the instrument creating the power that—
(i) the consent of any person is necessary to a valid appointment, or
(ii) an act is to be performed having no relation to the mode of executing and attesting the deed of appointment in order to give validity to any appointment.
num: 27
paragraphs: — (1) Subject to subsection (2), a person to whom any power, whether coupled with an interest or not, is given may release or contract not to exercise the power by deed or in any other way in which the power could be created.
[CA 1881, s. 52]
(2) Subsection (1) does not apply to a power in the nature of a trust or other fiduciary power.
num: 28
paragraphs: — (1) A person to whom any power, whether coupled with an interest or not, is given may by deed disclaim the power and, after disclaimer, may not exercise or join in the exercise of the power.
[CA 1882, s. 6]
(2) On such disclaimer, the power may be exercised by any other person or persons, or the survivor or survivors of any other persons, to whom the power is given, subject to the terms of the instrument creating the power.
num: 29
paragraphs: — (1) No appointment made in exercise of any power to appoint any property among two or more persons is invalid on the ground that—
[IAA 1830][PAA 1874]
(a) an insubstantial, illusory or nominal share only is appointed to or left unappointed to devolve on any one or more of those persons, or
(b) any such person is altogether excluded, whether by way of default of appointment or otherwise.
(2) This section does not affect any provision in the instrument creating the power which specifies the amount of any share from which any such person is not to be excluded.
num: 30
paragraphs: — (1) From the commencement of this Part, any—
(a) conveyance, or contract for a conveyance, of land held in a joint tenancy, or
(b) acquisition of another interest in such land,
by a joint tenant without the consent referred to in subsection (2) is void both at law and in equity unless such consent is dispensed with under section 31 (2)(e).
(2) In subsection (1) “consent” means the prior consent in writing of the other joint tenant or, where there are more than one other, all the other joint tenants.
(3) From the commencement of this Part, 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.
(4) Nothing in this section affects the jurisdiction of the court to find that all the joint tenants by mutual agreement or by their conduct have severed the joint tenancy in equity.
num: 31
paragraphs: — (1) Any person having an estate or interest in land which is co-owned whether at law or in equity may apply to the court for an order under this section.
(2) An order under this section includes—
[PA 1868][PA 1876]
(a) an order for partition of the land amongst the co-owners,
(b) an order for the taking of an account of incumbrances affecting the land, if any, and the making of inquiries as to the respective priorities of any such incumbrances,
(c) an order for sale of the land and distribution of the proceeds of sale as the court directs,
[AJA 1707, s. 23]
(d) an order directing that accounting adjustments be made as between the co-owners,
(e) an order dispensing with consent to severance of a joint tenancy as required by section 30 where such consent is being unreasonably withheld,
(f) such other order relating to the land as appears to the court to be just and equitable in the circumstances of the case.
(3) In dealing with an application for an order under subsection (1) the court may—
(a) make an order with or without conditions or other requirements attached to it, or
(b) dismiss the application without making any order, or
(c) combine more than one order under this section.
(4) In this section—
(a) “person having an estate or interest in land” includes a mortgagee or other secured creditor, a judgment mortgagee or a trustee,
(b) “accounting adjustments” include—
(i) payment of an occupation rent by a co-owner who has enjoyed, or is continuing to enjoy, occupation of the land to the exclusion of any other co-owner,
(ii) compensation to be paid by a co-owner to any other co-owner who has incurred disproportionate expenditure in respect of the land (including its repair or improvement),
(iii) contributions by a co-owner to disproportionate payments made by any other co-owner in respect of the land (including payments in respect of charges, rates, rents, taxes and other outgoings payable in respect of it),
(iv) redistribution of rents and profits received by a co-owner disproportionate to his or her interest in the land,
(v) any other adjustment necessary to achieve fairness between the co-owners.
(5) Nothing in this section affects the jurisdiction of the court under the Act of 1976, the Act of 1995 and the Act of 1996.
(6) The equitable jurisdiction of the court to make an order for partition of land which is co-owned whether at law or in equity is abolished.
num: 32
paragraphs: — (1) A body corporate may acquire and hold any property in a joint tenancy in the same manner as if it were an individual.
[BC(JT) A 1899]
(2) Where a body corporate and an individual or two or more bodies corporate become entitled to any property in circumstances or by virtue of any instrument which would, if the body or bodies corporate had been an individual or individuals, have created a joint tenancy, they are entitled to the property as joint tenants.
(3) On the dissolution of a body corporate which is a joint tenant of any property, the property devolves on the other surviving joint tenant or joint tenants.
num: 33
paragraphs: — In this Chapter, unless the context otherwise requires—
“dominant land” means land benefited by an easement or profit à prendre to which other land is subject, or in respect of which a relevant user period has commenced; and “dominant owner” shall be read accordingly and includes that owner’s predecessors and successors in title;
“foreshore” has the meaning given to it by section 2(1) of the Act of 1957;
“interruption” means interference with, or cessation of, the use or enjoyment of an easement or profit à prendre for a continuous period of at least one year, but does not include an interruption under section 37 (1);
“period of non-user” means a period during which the dominant owner ceases to use or enjoy the easement or profit à prendre;
“relevant user period” means a period of user as of right without interruption by the person claiming to be the dominant owner or owner of profit à prendre in gross—
(a) where the servient owner is not a State authority, for a minimum period of 12 years, or
(b) where the servient owner is a State authority, for—
(i) a minimum period of 30 years, or
(ii) where the servient land is foreshore, a minimum period of 60 years;
“servient land” means land subject to an easement or profit à prendre, or in respect of which a relevant user period has commenced; and “servient owner” shall be read accordingly and includes that owner’s predecessors and successors in title;
“State authority” means a Minister of the Government or the Commissioners of Public Works in Ireland;
“user as of right” means use or enjoyment without force, without secrecy and without the oral or written consent of the servient owner.
num: 34
paragraphs: — Subject to section 38 , acquisition of an easement or profit à prendre by prescription at common law and under the doctrine of lost modern grant is abolished and after the commencement of this Chapter acquisition by prescription shall be in accordance with section 35 .
num: 35
paragraphs: — (1) An easement or profit à prendre shall be acquired at law by prescription only on registration of a court order under this section.
[PA 1832]
[PA 1858]
(2) Subject to subsection (3), in an action to establish or dispute the acquisition by prescription of an easement or profit à prendre, the court shall make an order declaring the existence of the easement or profit à prendre if it is satisfied that there was a relevant user period immediately before the commencement of the action.
(3) The court may make an order under subsection (2) where the relevant user period was not immediately before the commencement of the action if it is satisfied that it is just and equitable to do so in all the circumstances of the case.
(4) An order under subsection (2) shall be registered in the Registry of Deeds or Land Registry, as appropriate.
num: 36
paragraphs: — (1) Where the dominant owner acquiring an easement or profit à prendre under section 35 owns a tenancy only in the dominant land, the easement or profit à prendre attaches to that land and when the tenancy ends, passes to the landlord.
[PA 1832, s. 8]
(2) Where an easement or profit à prendre is acquired under section 35 against a servient owner who owns a tenancy only in the servient land, it ends when that tenancy ends, but if the servient owner—
(a) acquires a superior interest in the land, the easement or profit à prendre attaches to the superior interest,
(b) obtains an extension or renewal of the tenancy, the easement or profit à prendre continues to attach to the land for the period of that extension or renewal.
(3) Nothing in subsection (2) prevents the subsequent acquisition of an easement or profit à prendre under section 35 on the basis of a new relevant user period against a landlord who takes possession of the servient land after the tenancy ends.
num: 37
paragraphs: — (1) Subject to subsection (2), where the servient owner is incapable, whether at the commencement of or during the relevant user period, of managing his or her affairs because of a mental incapacity, the running of that period is suspended until the incapacity ceases.
[PA 1832, s. 7]
(2) Subsection (1) does not apply where—
(a) the court considers that it is reasonable, in the circumstances of the case, to have expected some other person, whether as trustee, committee of a ward of court, an attorney under an enduring power of attorney or otherwise, to have acted on behalf of the servient owner during the relevant user period, or
(b) at least 30 years have elapsed since the commencement of the relevant user period.
num: 38
paragraphs: — In relation to any claim to an easement or profit à prendre made after the commencement of this Chapter, sections 34 to 37 —
(a) apply to any claim based on a relevant user period notwithstanding that it is alleged that an additional user period occurred before that commencement,
(b) do not apply to any claim based on a user period under the law applicable prior to the commencement of this Chapter and alleged to have commenced prior to such commencement where the action in which the claim is made is brought within 3 years of such commencement.
num: 39
paragraphs: — (1) On the expiry of a 12 year continuous period of non-user of an easement or profit à prendre acquired by—
(a) prescription, or
(b) implied grant or reservation,
the easement or profit à prendre is extinguished except where it is protected by registration in the Registry of Deeds or Land Registry, as appropriate.
(2) This section applies to extinguishment of an easement or profit à prendre notwithstanding that it was acquired before the commencement of this Chapter, provided at least 3 years of the period of non-user occur after such commencement.
(3) Nothing in this section affects the jurisdiction of the court to declare that an easement or profit à prendre, however acquired, has been abandoned or extinguished.
num: 40
paragraphs: — (1) The rule known as the Rule in Wheeldon v. Burrows is abolished and replaced by subsection (2).
(2) Where the owner of land disposes of part of it or all of it in parts, the disposition creates by way of implication for the benefit of such part or parts any easement over the part retained, or other part or parts simultaneously disposed of, which—
(a) is necessary to the reasonable enjoyment of the part disposed of, and
(b) was reasonable for the parties, or would have been if they had adverted to the matter, to assume at the date the disposition took effect as being included in it.
(3) This section does not otherwise affect—
(a) easements arising by implication as easements of necessity or in order to give effect to the common intention of the parties to the disposition,
(b) the operation of the doctrine of non-derogation from grant.
num: 41
paragraphs: — (1) Subject to subsection (2), the creation of a rentcharge at law or in equity is prohibited.
(2) Subsection (1) does not apply to the creation of a rentcharge under—
(a) a contract entered into before the commencement of this Chapter,
(b) an order of the court, or
(c) any statutory provision.
num: 42
paragraphs: — Subject to any other statutory provision, from the commencement of this Chapter, a rentcharge is enforceable as a simple contract debt only.
[CA 1881, s. 44]
num: 43
paragraphs: — In this Chapter, unless the context otherwise requires—
“adjoining” includes adjacent;
“adjoining owner” means the owner of any estate or interest in a building or unbuilt-on land adjoining that of the building owner;
“building” includes part of a building;
“building owner” means the owner for the time being of any estate or interest in a building or unbuilt-on land who wishes to carry out works to a party structure;
“the court” means the District Court;
“party structure” means any arch, ceiling, ditch, fence, floor, hedge, partition, shrub, tree, wall or other structure which horizontally, vertically or in any other way—
(a) divides adjoining and separately owned buildings, or
(b) is situated at or on or so close to the boundary line between adjoining and separately owned buildings or between such buildings and unbuilt-on lands that it is impossible or not reasonably practical to carry out works to the structure without access to the adjoining building or unbuilt-on land,
and includes any such structure which is—
(i) situated entirely in or on one of the adjoining buildings or unbuilt-on lands, or
(ii) straddles the boundary line between adjoining buildings or between such buildings and unbuilt-on lands and is either co-owned by their respective owners or subject to some division of ownership between them;
“ works ” include—
(a) carrying out works of adjustment, alteration, cutting into or away, decoration, demolition, improvement, lowering, maintenance, raising, renewal, repair, replacement, strengthening or taking down,
(b) cutting, treating or replacing any hedge, tree or shrub,
(c) clearing or filling in ditches,
(d) ascertaining the course of cables, drains, pipes, sewers, wires or other conduits and clearing, renewing, repairing or replacing them,
(e) carrying out inspections, drawing up plans and performing other tasks requisite for, incidental to or consequential on any works falling within paragraphs (a) to (d);
“works order” means an order under section 45 (1).
num: 44
paragraphs: — (1) Subject to subsection (2), a building owner may carry out works to a party structure for the purpose of—
(a) compliance with any statutory provision or any notice or order under such a provision, or
(b) carrying out development which is exempted development or development for which planning permission has been obtained or compliance with any condition attached to such permission, or
(c) preservation of the party structure or of any building or unbuilt-on land of which it forms a part, or
(d) carrying out any other works which—
(i) will not cause substantial damage or inconvenience to the adjoining owner, or
(ii) if they may or will cause such damage or inconvenience, it is nevertheless reasonable to carry them out.
(2) Subject to subsection (3), in exercising any right under subsection (1) the building owner shall—
(a) make good all damage caused to the adjoining owner as a consequence of the works, or reimburse the adjoining owner the reasonable costs and expenses of such making good, and
(b) pay to the adjoining owner—
(i) the reasonable costs of obtaining professional advice with regard to the likely consequences of the works, and
(ii) reasonable compensation for any inconvenience caused by the works.
(3) The building owner may—
(a) claim from the adjoining owner as a contribution to, or deduct from any reimbursement of, the cost and expenses of making good such damage under subsection (2)(a), or
(b) deduct from compensation under subsection (2)(b)(ii),
such sum as will take into account the proportionate use or enjoyment of the party structure which the adjoining owner makes or, it is reasonable to assume, is likely to make.
(4) If—
(a) a building owner fails within a reasonable time to—
(i) make good damage under subsection (2)(a), the adjoining owner may apply to the court for an order requiring the damage to be made good and on such application the court may make such order as it thinks fit, or
(ii) reimburse costs and expenses under subsection (2)(a) or to pay reasonable costs or compensation under subsection (2)(b), the adjoining owner may recover such costs, expenses or compensation as a simple contract debt in a court of competent jurisdiction.
(b) an adjoining owner fails to meet a claim to a contribution under subsection (3)(a), the building owner may recover such contribution as a simple contract debt in a court of competent jurisdiction.
num: 45
paragraphs: — (1) A building owner who is in dispute with an adjoining owner with respect to exercise of rights under section 44 may apply to the court for an order authorising the carrying out of specified works (a “ works order ”).
(2) In determining whether to make a works order and, if one is to be made, what terms and conditions should be attached to it, the court shall have regard to section 44 and may take into account any other circumstances which it considers relevant.
num: 46
paragraphs: — (1) Subject to subsection (3), a works order shall authorise the carrying out of the works specified, on such terms and conditions (including those necessary to comply with section 44 ) as the court thinks fit in the circumstances of the case.
(2) Without prejudice to the generality of subsection (1), a works order may—
(a) authorise the building owner, and that owner’s agents, employees or servants, to enter on an adjoining owner’s building or unbuilt-on land for any purpose connected with the works,
(b) require the building owner to indemnify or give security to the adjoining owner for damage, costs and expenses caused by or arising from the works or likely so to be caused or to arise.
(3) A works order shall not authorise any permanent interference with, or loss of, any easement of light or other easement or other right relating to a party structure.
num: 47
paragraphs: — On the application of any person affected by a works order, the court may discharge or modify the order, on such terms and conditions as it thinks fit.
num: 48
paragraphs: — In this Chapter, unless the context otherwise requires—
“ developer ” means the person who creates a scheme of development and that person’s successors in title;
“dominant land” means freehold land with the benefit of a covenant to which other freehold land is subject; and “dominant owner” shall be read accordingly and includes persons deriving title from or under that owner;
“freehold covenant” means a covenant attaching to dominant land and servient land which has been entered into after the commencement of this Chapter;
“persons deriving title” include—
(a) a person who has acquired title to the land by possession under the Act of 1957;
(b) a mortgagee, or receiver appointed by a mortgagee, in possession of the land;
“scheme of development” means a development of land under which—
(a) the land is, or is intended to be, subdivided into 2 or more parts for conveyance in fee simple to each owner of a part;
(b) there is an intention as between the developer and the owners of parts to create reciprocity of covenants in accordance with section 49 (3);
(c) that intention is expressed in each conveyance to the owners of parts or implied from the covenants in question as they relate to the parts and the proximity of the relationship between their owners;
“servient land” means freehold land which is subject to a covenant benefiting other freehold land; and “servient owner” shall be read accordingly and includes—
(a) persons deriving title from or under that owner, but not a tenant for a period less than 5 years,
(b) in the case of a covenant which is restrictive in substance, a licensee or other person in occupation of the land with or without the consent of that owner.
num: 49
paragraphs: — (1) Subject to subsection (6), the rules of common law and equity (including the rule known as the rule in Tulk v. Moxhay) are abolished to the extent that they relate to the enforceability of a freehold covenant.
[CA 1881, ss. 58 and 59]
(2) Subject to subsections (3) to (6), any freehold covenant which imposes in respect of servient land an obligation to do or to refrain from doing any act or thing is enforceable—
(a) by—
(i) the dominant owner for the time being, or
(ii) a person who has ceased to be that owner but only in respect of any breach of covenant occurring during the period when that person was such owner,
(b) against—
(i) the servient owner for the time being in respect of any breach of covenant by that owner or which occurred before and continued unremedied after that person became the servient owner, or
(ii) a person who has ceased to be that owner, but only in respect of a breach of covenant which occurred during the period when that person was such owner.
(3) Where there is a scheme of development subsection (2) applies so as to render covenants which are capable of reciprocally benefiting and burdening the parts of land within the scheme enforceable by and against the owners for the time being of such parts or persons referred to in subsection (2)(a)(ii) and (2)(b)(ii).
(4) Where the servient land has been subdivided any obligations, whether to do or to refrain from doing any act or thing, relating to that land—
(a) are apportioned, as appropriate to the subdivided parts of the land, between those parts,
(b) are enforceable accordingly by or against the persons in whom the subdivided parts are vested,
as if those obligations had originally been entered into separately in respect only of each such part.
(5) Any dispute as to the application of subsection (4) to a particular case may be referred to the court for determination and, on such application, the court may order such apportionment as it thinks fit.
(6) This section—
(a) does not affect—
(i) the enforceability of a covenant under the doctrine of privity of contract or a covenant for title under section 80 , or
(ii) the application to a freehold covenant of the Act of 1957,
(b) takes effect subject to the terms of the covenant or the instrument containing it.
num: 50
paragraphs: — (1) A servient owner may apply to the court for an order discharging in whole or in part or modifying a freehold covenant (whether created before or after the commencement of this Chapter) on the ground that continued compliance with it would constitute an unreasonable interference with the use and enjoyment of the servient land.
(2) In determining whether to make an order under subsection (1) and, if one is to be made, what terms and conditions should be attached to it, the court shall have regard as appropriate to the following matters—
(a) the circumstances in which, and the purposes for which, the covenant was originally entered into and the time which has elapsed since then,
(b) any change in the character of the dominant land and servient land or their neighbourhood,
(c) the development plan for the area under the Act of 2000,
(d) planning permissions granted under that Act in respect of land in the vicinity of the dominant land and servient land or refusals to grant such permissions,
(e) whether the covenant secures any practical benefit to the dominant owner and, if so, the nature and extent of that benefit,
(f) where the covenant creates an obligation on the servient owner to execute any works or to do any thing, or to pay or contribute towards the cost of executing any works or doing any thing, whether compliance with that obligation has become unduly onerous compared with the benefit derived from such compliance,
(g) whether the dominant owner has agreed, expressly or impliedly, to the covenant being discharged or varied,
(h) any representations made by any person interested in the performance of the covenant,
(i) any other matter which the court considers relevant.
(3) Where the court is satisfied that compliance with an order under subsection (1) will result in a quantifiable loss to the dominant owner or other person adversely affected by the order, it may include as a condition in the order a requirement by the servient owner to pay the dominant owner or other person such compensation as the court thinks fit.
(4) An order under subsection (1) shall be registered in the Registry of Deeds or Land Registry, as appropriate.
num: 51
paragraphs: — (1) Subject to subsection (2), no action shall be brought to enforce any contract for the sale or other disposition of land unless the agreement on which such action is brought, or some memorandum or note of it, is in writing and signed by the person against whom the action is brought or that person’s authorised agent.
[SF 1695, s. 2]
(2) Subsection (1) does not affect the law relating to part performance or other equitable doctrines.
(3) For the avoidance of doubt, but subject to an express provision in the contract to the contrary, payment of a deposit in money or money’s worth is not necessary for an enforceable contract.
num: 52
paragraphs: — (1) Subject to subsection (2), the entire beneficial interest passes to the purchaser on the making, after the commencement of this Chapter, of an enforceable contract for the sale or other disposition of land.
(2) Subsection (1) does not affect—
(a) the obligation of the vendor to maintain the land so long as possession of it is retained, or
(b) the liability of the vendor for loss or damage under any contractual provision dealing with such risk, or
(c) the vendor’s right to rescind the contract for failure by the purchaser to complete or other breach of the contract, or
(d) any provision to the contrary in the contract.
num: 53
paragraphs: — (1) The rule of law restricting damages recoverable for breaches of contract occasioned by defects in title to land (known as the Rule in Bain v. Fothergill) is abolished.
(2) Subsection (1) applies only to contracts made after the commencement of this Chapter.
num: 54
paragraphs: — Where the court refuses to grant specific performance of a contract for the sale or other disposition of land, or in any action for the return of a deposit, the court may, where it is just and equitable to do so, order the repayment of the whole or any part of any deposit, with or without interest.
num: 55
paragraphs: — (1) Any party to a contract for the sale or other disposition of land may apply to the court in a summary manner for an order determining a question relating to the contract.
[VPA 1874, s. 9]
(2) On such an application the court may make such order, including an order as to costs, as it thinks fit.
(3) A question in respect of which an application may be made under subsection (1) includes a question relating to any requisition, objection, claim for compensation or other question arising out of or connected with the contract, but does not include a question affecting the existence or validity of the contract.
num: 56
paragraphs: — (1) Subject to subsections (2) and (3), after the commencement of this Chapter, a period of at least 15 years commencing with a good root of title is the period for proof of title which the purchaser may require.
[VPA 1874, s. 1]
(2) Where the title originates with a fee farm grant or lease, subsection (1) does not prevent the purchaser from requiring production of the fee farm grant or lease.
(3) Subsection (1) takes effect subject to the terms of the contract for the sale or other disposition of the land.
num: 57
paragraphs: — (1) Subject to subsections (2) and (5), under a contract to grant or assign a tenancy or subtenancy of land, the intended grantee or assignee is not entitled to call for the title to—
[VPA 1874, s. 2]
[CA 1881, ss. 3 and 13]
(a) the fee simple, or
[CA 1882, s. 4]
(b) any tenancy superior to that out of which the subtenancy is, or is to be, immediately derived.
(2) Subject to subsection (5), under a contract made after the commencement of this Chapter to grant a tenancy or subtenancy for a term exceeding 5 years the intended grantee may call for—
(a) in the case of a tenancy to be derived immediately out of the fee simple, a copy of the conveyance of that estate to the grantor, or
(b) in the case of a subtenancy, a copy of the superior lease out of which it is to be immediately derived and, if any, of the immediate assignment of the superior lease to the grantor,
and, where the tenancy or subtenancy is granted for the full market rent, taking into account any premium also paid by, but disregarding any concessions or inducements made to, the intended grantee, that grantee may also call for 15 years’ title as a purchaser under section 56 (1).
(3) For the purpose of the deduction of title to an intended assignee, no preliminary contract for or relating to the tenancy forms part of the title, or evidence of the title, to the tenancy.
(4) Where by reason of subsection (1) an intended grantee or assignee is not entitled to call for the title to the fee simple or a superior tenancy, that person, where the contract is made after the commencement of this Chapter, is not affected with notice of any matter or thing of which, if the contract had specified that such title should be furnished, that person might have had notice.
(5) Subsections (1) and (2) take effect subject to the terms of the contract for the grant or assignment of the tenancy or subtenancy.
num: 58
paragraphs: — (1) Subject to subsection (2), a purchaser of land is not entitled to require—
[VPA 1874, s. 2]
[CA 1881, s. 3]
(a) the production of an instrument dated or made before the period referred to in section 56 , or stipulated in the contract for sale, for the commencement of the title, even though the instrument creates a power subsequently exercised by an instrument produced to the purchaser, or
(b) any information, or make any requisition, objection or inquiry with respect to any instrument referred to in paragraph (a) or the title prior to that period, notwithstanding that any instrument, or that prior title, is recited, agreed to be produced or noticed,
and the purchaser shall assume, unless the contrary appears, that—
(i) the recitals contained in the instruments produced, relating to any instrument forming part of that prior title are correct, and give all the material contents of the instrument so recited, and
(ii) every instrument so recited was duly executed by all necessary parties, and perfected, if and as required, by any act required or permitted by law.
(2) Subsection (1) does not deprive a purchaser of the right to require the production of any—
(a) power of attorney under which any instrument which is produced is executed, or
(b) instrument creating or disposing of an interest, power or obligation which is not shown to have ceased or expired, and subject to which any part of the land is disposed of by an instrument which is produced, or a copy of which is produced, or
(c) instrument creating any limitation or trust by reference to which any part of the land is disposed of by an instrument which is produced.
(3) On a sale of land, the purchaser, where the purchaser requires the vendor to carry out such matters, shall bear the expenses (except where such expenses should be borne by the vendor in compliance with the obligation to deduce title) of—
(a) production and inspection of all instruments, letters of administration, probates, proceedings at courts, records, statutory provisions and other documents not in the possession of the vendor, or the vendor’s mortgagee or trustee,
(b) making, procuring, producing, searching for and verifying all certificates, declarations, evidence and information, and all attested, office, stamped or other copies or abstracts of, or extracts from, any statutory provisions or other documents, not in the possession of the vendor or the vendor’s mortgagee or trustee,
(c) making any copy, whether attested or unattested, of any document retained by the vendor, or the vendor’s mortgagee or trustee, required to be delivered by the purchaser.
(4) On a sale of land in lots, a purchaser of two or more lots held wholly or partly under the same title is entitled to no more than one abstract of the common title, nor to more than one copy of any document forming part of the common title, except at the purchaser’s own expense.
(5) The inability of a vendor to furnish the purchaser with an acknowledgment of the right to production and delivery of copies of documents of title is not an objection to title where the purchaser will, on the completion of the contract, have an equitable right to the production of such documents.
(6) Such acknowledgments and such undertakings for the safe custody of documents as the purchaser requires shall be furnished at the purchaser’s expense, and the vendor shall bear the expense of perusal and execution on behalf of or by the vendor, and on behalf of and by necessary parties other than the purchaser.
(7) A vendor may retain a document of title where—
(a) the vendor retains any part of the land to which the document relates, or
(b) the document comprises an instrument—
(i) creating a trust which still exists, or
(ii) relating to the appointment or discharge of a trustee of an existing trust.
(8) This section takes effect subject to the terms of the contract for the sale or other disposition of the land.
(9) Nothing in this section is to be read as binding a purchaser to complete the purchase in any case where, on a contract made without reference to this section but containing stipulations similar to any of its provisions, specific performance would not be granted by the court against the purchaser.
(10) In this section—
(a) “instrument” includes a copy or abstract,
(b) “production” includes furnishing a copy or abstract and cognate words shall be read accordingly.
num: 59
paragraphs: — (1) Recitals, statements and descriptions of facts, matters and parties contained in instruments, statutory provisions or statutory declarations 15 years old at the date of the contract are, unless and except so far as they are proved to be inaccurate, sufficient evidence of the truth of such facts, matters and parties.
[VPA 1874, s. 2][CA 1881, s. 3]
(2) Where land sold is held under a tenancy (other than a subtenancy), the purchaser shall assume, unless the contrary appears, that the tenancy was duly granted; and, on production of the receipt for the last payment due for rent under the tenancy before the date of the actual completion of the purchase, the purchaser shall assume, unless the contrary appears, that all the covenants and provisions of the tenancy have been duly performed and observed up to the date of actual completion of the purchase.
(3) Where land sold is held under a subtenancy, the purchaser shall assume, unless the contrary appears, that the subtenancy and every superior tenancy were duly granted; and, on production of the receipt for the last payment due for rent under the subtenancy before the date of the actual completion of the purchase, the purchaser shall assume, unless the contrary appears, that all the covenants and provisions of the subtenancy have been duly performed and observed up to the date of actual completion of the purchase, and also that all rent due under, and all covenants and provisions of, every superior tenancy have been paid and duly performed and observed up to that date.
num: 60
paragraphs: — (1) Any person disposing of land to a purchaser, or the solicitor or other agent of such a person, who with intent to defraud—
[LPAA 1859, s. 24][LPAA 1860, s. 8]
(a) conceals from the purchaser any instrument or incumbrance material to the title, or
(b) falsifies any information or matter on which the title may depend in order to induce the purchaser to accept the title offered or produced,
is guilty of an offence under this Act.
(2) Any such person or the person’s solicitor or agent is also liable to an action for damages by the purchaser, or persons deriving title under the purchaser, for any loss sustained by reason of—
(a) the concealment of the instrument or incumbrance, or
(b) any claim made by a person whose title to the land was concealed by such falsification.
(3) In estimating damages, where the land is recovered from the purchaser or persons deriving title under the purchaser, regard shall be had to any expenditure by them on improving the land.
(4) Nothing in this section affects the provisions of the Criminal Justice (Theft and Fraud Offences) Act 2001.
num: 61
paragraphs: — (1) Where land having a common title with other land is conveyed to a purchaser (other than a tenant or mortgagee) who does not hold or obtain possession of the documents forming the common title, the purchaser, notwithstanding a stipulation to the contrary in the contract or conveyance, may require that a memorandum giving notice of any provisions in the conveyance restricting user of or conferring rights over any other land comprised in the common title is endorsed on or permanently annexed to some document selected by the purchaser but retained in the possession or control of the vendor and being or forming part of the common title.
[CA 1911, s. 11]
(2) The title of any person omitting to require an endorsement or annexation under this section is not affected or prejudiced merely by such omission.
(3) This section does not apply to registered land.
num: 62
paragraphs: — (1) Subject to section 63 , a legal estate or interest in land may only be created or conveyed by a deed.
[SU 1634] [RPA 1845, ss. 2 and 3]
(2) A deed executed after the commencement of this Chapter is fully effective for such purposes without the need for any conveyance to uses and passes possession or the right to possession of the land, without actual entry, unless subject to some prior right to possession.
(3) In the case of a voluntary conveyance executed after the commencement of this Chapter, a resulting use for the grantor is not implied merely because the land is not expressed to be conveyed for the use or benefit of the grantee.
(4) A bargain and sale, covenant to stand seised, feoffment with livery of seisin or any combination of these are no longer effective to create or to convey a legal estate or legal interest in land.
num: 63
paragraphs: — Section 62 (1) does not apply to—
(a) an assent by a personal representative,
(b) a surrender or other conveyance taking effect by operation of law,
(c) a disclaimer not required to be by deed,
(d) a grant or assignment of a tenancy not required to be by deed,
(e) a receipt not required to be by deed,
(f) a vesting order of the court or other competent authority, or
(g) any other conveyance which may be prescribed.
num: 64
paragraphs: — (1) Any rule of law which requires—
(a) a seal for the valid execution of a deed by an individual, or
(b) authority to deliver a deed to be given by deed,
is abolished.
(2) An instrument executed after the commencement of this Chapter is a deed if it is—
(a) described at its head by words such as “Assignment”, “Conveyance”, “Charge”, “Deed”, “Indenture”, “Lease”, “Mortgage”, “Surrender” or other heading appropriate to the deed in question, or it is otherwise made clear on its face that it is intended by the person making it, or the parties to it, to be a deed, by expressing it to be executed or signed as a deed,
(b) executed in the following manner:
(i) if made by an individual—
(I) it is signed by the individual in the presence of a witness who attests the signature, or
(II) it is signed by a person at the individual’s direction given in the presence of a witness who attests the signature, or
(III) the individual’s signature is acknowledged by him or her in the presence of a witness who attests the signature;
(ii) if made by a company registered in the State, it is executed under the seal of the company in accordance with its Articles of Association;
(iii) if made by a body corporate registered in the State other than a company, it is executed in accordance with the legal requirements governing execution of deeds by such a body corporate;
(iv) if made by a foreign body corporate, it is executed in accordance with the legal requirements governing execution of the instrument in question by such a body corporate in the jurisdiction where it is incorporated,
and
(c) delivered as a deed by the person executing it or by a person authorised to do so on that person’s behalf.
(3) Any deed executed under this section has effect as if it were a document executed under seal.
(4) A deed, whenever created, has the effect of an indenture although not indented or expressed to be an indenture.
num: 65
paragraphs: — (1) Any rule of law to the effect that the affixing of a corporate seal to an instrument effects delivery by that body corporate is abolished.
(2) An instrument executed by a body corporate in accordance with section 64 (2)(b) is capable of operating as an escrow in the same circumstances and with the same consequences as an instrument executed by an individual.
num: 66
paragraphs: — (1) Any property may be conveyed by a person to that person jointly with another person in the same way in which it might be conveyed by that person to another person.
[LPAA 1859, s. 21][CA 1881, s. 50]
(2) Subject to subsection (3)—
(a) a person may convey, but not lease, property to that same person in a different capacity,
(b) two or more persons may convey, and have always been capable of conveying, any property vested in them to any one or more of themselves in the same way in which they could convey it to a third person.
(3) Subsection (2) does not validate a conveyance made in breach of trust or other fiduciary obligation.
(4) Without prejudice to section 83 , this section does not affect any rule of law under which a covenant entered into with oneself is unenforceable.
num: 67
paragraphs: — (1) A conveyance of unregistered land with or without words of limitation, or any equivalent expression, passes the fee simple or the other entire estate or interest which the grantor had power to create or convey, unless a contrary intention appears in the conveyance.
[CA 1881, s. 51]
(2) A conveyance of unregistered land to a corporation sole by that person’s corporate designation without the word “successors” passes to the corporation the fee simple or the other entire estate or interest which the grantor had power to create or convey, unless a contrary intention appears in the conveyance.
(3) Where an interest in land is expressed to be given to—
(a) the heir or heirs, or
(b) any particular heir, or
(c) any class of heirs, or
(d) issue,
of any person in words which, under the rule known as the Rule in Shelley’s Case, would have operated to give that person a fee simple, those words operate as words of purchase and not of limitation and take effect in equity accordingly.
(4) Subject to section 68 , subsections (1) to (3) apply to conveyances executed before the commencement of this Chapter, but without prejudice to any act or thing done or any interest disposed of or acquired before that commencement in consequence of the failure to use words of limitation in such a conveyance or the application of the Rule in Shelley’s Case.
num: 68
paragraphs: — (1) An interest—
(a) to which a person was entitled, or
(b) acquired by a person,
before the commencement of this Chapter in consequence of the failure to use words of limitation in a conveyance executed before that commencement or the application of the Rule in Shelley’s Case is extinguished unless the person claiming to be entitled to the interest or to have acquired it—
(i) applies to the court, within 12 years from the commencement of this Chapter, for an order under this section, and
(ii) registers any order made under this section in accordance with subsection (3).
(2) On such an application the court may—
(a) make an order declaring that the applicant is entitled to the interest or has acquired it,
(b) refuse to make such an order if it is satisfied that no substantial injustice will be done to any party, or
(c) in lieu of a declaration in favour of the applicant, order payment by another party of such compensation to the applicant as the court thinks appropriate.
(3) An order under this section shall be registered in the Registry of Deeds or Land Registry, as appropriate.
num: 69
paragraphs: — (1) A reservation of a legal estate or interest in a conveyance of land operates, without execution of the conveyance or of any regrant by the grantee, to—
[CA 1881, s. 62]
(a) vest that estate or interest in the grantor or other person for whose benefit it is made, and
(b) annex it to the land, if any, for the benefit of which it is made.
(2) A conveyance of land expressed to be subject to a legal estate or interest which is not in existence immediately before the date of the conveyance operates as a reservation within the meaning of subsection (1), unless a contrary intention is expressed in the conveyance.
(3) For the purpose of construing the effect of a conveyance of land, a reservation shall not be treated as taking effect as a regrant.
(4) This section applies only to reservations made after the commencement of this Part.
num: 70
paragraphs: — (1) Where a deed is expressed to confer an estate or interest in land, or the benefit of a covenant or right relating to land, on a person, that person may enforce the deed whether or not named a party to it.
[RPA 1845, s. 5]
(2) Nothing in this section otherwise affects the doctrine of privity of contract.
num: 71
paragraphs: — (1) A conveyance of land includes, and conveys with the land, all—
[CA 1881, s. 6]
(a) buildings, commons, ditches, drains, erections, fences, fixtures, hedges, water, watercourses and other features forming part of the land,
(b) advantages, easements, liberties, privileges, profits à prendre and rights appertaining or annexed to the land.
(2) A conveyance of land which has houses or other buildings on it includes, and conveys with the land, houses or other buildings all—
(a) areas, cellars, cisterns, courts, courtyards, drainpipes, drains, erections, fixtures, gardens, lights, outhouses, passages, sewers, watercourses, yards and other features forming part of the land, houses or other buildings,
(b) advantages, easements, liberties, privileges, profits à prendre and rights appertaining or annexed to the land, houses or other buildings.
(3) This section—
(a) does not on a conveyance of land (whether or not it has houses or other buildings on it)—
(i) create any new interest or right or convert any quasi-interest or right existing prior to the conveyance into a full interest or right, or
(ii) extend the scope of, or convert into a new interest or right, any licence, privilege or other interest or right existing before the conveyance,
(b) does not—
(i) give to any person a better title to any land, interest or right referred to in this section than the title which the conveyance gives to the land expressed to be conveyed, or
(ii) convey to any person any land, interest or right further or other than that which could have been conveyed to that person by the grantor,
(c) takes effect subject to the terms of the conveyance.
num: 72
paragraphs: — (1) Any instrument expressed to be supplemental to a previous instrument, or directed to be read as an annex to such an instrument, is, so far as is appropriate, to be read and has effect as if the instrument so expressed or directed—
[CA 1881, s. 53]
(a) were made by way of endorsement on the previous instrument, or
(b) contained a full recital of the previous instrument.
(2) This section does not confer on a purchaser any right to an abstract, copy or production of any such previous instrument and a purchaser may accept the same evidence that the previous instrument does not affect the title as if it had merely been mentioned in the supplemental instrument.
num: 73
paragraphs: — (1) A release of part of land from—
[LPAA 1859, ss. 10 and 11]
(a) a rentcharge does not extinguish the rentcharge, but bars only the right to recover any part of the rentcharge out of the land released,
(b) a judgment charged on the land does not affect the validity of the judgment as regards any of the land not specifically released.
(2) Subsection (1) does not—
(a) prejudice the rights of any person interested in the land unreleased and not concurring in or confirming the release, or
(b) prevent recovery of the whole of the rentcharge or enforcement of the whole judgment against the land unreleased, unless those interested agree otherwise.
num: 74
paragraphs: — (1) Subject to subsection (2), any voluntary disposition of land made with the intention of defrauding a subsequent purchaser of the land is voidable by that purchaser.
[CA 1634, ss. 1 to 5, 10, 11 and 14][VCA 1893]
(2) For the purposes of subsection (1), a voluntary disposition is not to be read as intended to defraud merely because a subsequent disposition of the same land was made for valuable consideration.
(3) Subject to subsection (4), any conveyance of property made with the intention of defrauding a creditor or other person is voidable by any person thereby prejudiced.
(4) Subsection (3) does not—
(a) apply to any estate or interest in property conveyed for valuable consideration to any person in good faith not having, at the time of the conveyance, notice of the fraudulent intention, or
(b) affect any other law relating to bankruptcy of an individual or corporate insolvency.
num: 75
paragraphs: — Particular words and expressions used in any instrument relating to land executed or made after the commencement of this Chapter, unless the context otherwise requires—
(a) are subject to the same general rules of construction as are applicable to such words and expressions used in Acts of the Oireachtas under Part 4 of the Act of 2005,
num: 76
paragraphs: — (1) Subject to subsection (2), a conveyance of land passes all the claim, demand, estate, interest, right and title which the grantor has or has power to convey in, to or on the land conveyed or expressed or intended to be conveyed.
[CA 1881, s. 63]
(2) This section takes effect subject to the terms of the conveyance.
num: 77
paragraphs: — (1) A receipt for consideration in the body of a deed is sufficient discharge for the consideration to the person giving it, without any further receipt being endorsed on the deed.
[CA 1881, ss. 54 to 56]
(2) A receipt for consideration in the body of a deed is, in favour of a subsequent purchaser (not having notice that the consideration so acknowledged to be received was not, in fact, given wholly or in part), conclusive evidence of the giving of the whole consideration.
(3) Where a solicitor produces a deed which—
(a) has in its body a receipt for consideration, and
(b) has been executed by the person entitled to give a receipt for the consideration,
the deed is conclusive authority to the person liable to give the consideration for giving it to the solicitor, without the solicitor producing any separate or other authority or direction in that behalf from the person who executed or signed the deed or receipt.
(4) In subsection (3) “solicitor” includes any employee of a solicitor, and any member or employee of a firm in which the solicitor is a partner, and any such employee or member of another firm acting as agent of the solicitor or firm.
num: 78
paragraphs: — (1) An exchange or other conveyance of land does not imply any condition in law.
[RPA 1845, s. 4]
(2) Subject to any statutory provision, use of the word “give” or “grant” in any conveyance does not imply any covenant.
num: 79
paragraphs: — In sections 80 and 81 —
(a) “conveyance”—
(i) does not include the granting of a tenancy,
(ii) means a conveyance made after the commencement of this Chapter,
(b) any reference to a person being expressed to “convey”, or to an estate or interest or land being expressed to be “conveyed” does not mean that the words “convey” or “conveyed” must be used in the conveyance for the covenant to be implied.
num: 80
paragraphs: — (1) In a conveyance of any class referred to in subsection (2) there are implied the covenants specified in relation to that class in Part 2 of Schedule 3 , and those covenants are deemed to be made—
[CA 1881, s. 7]
(a) by the person or by each person who conveys, to the extent of the estate or interest or share of the estate or interest expressed to be conveyed by such person (“the subject-matter of the conveyance”),
(b) with the person to whom the conveyance is made, or with the persons jointly and severally, if more than one, to whom the conveyance is made as joint tenants, or with each of the persons, if more than one, to whom the conveyance is made as tenants in common,
num: 81
paragraphs: — (1) In a conveyance of any class referred to in subsection (2) there are implied, in addition to the covenants referred to in section 80 (1), the covenants specified in relation to that class in Part 3 of Schedule 3 , and those covenants are deemed to be made—
(a) by the person, or by the persons jointly and severally, if more than one, so specified in relation to any class of conveyance,
(b) with the person, or with the persons jointly and severally, if more than one, who is the other party, or are the other parties, to the conveyance,
num: 82
paragraphs: — (1) Where under a covenant persons are—
[CA 1881, s. 60]
(a) covenantors, the covenant binds them and any two or more of them jointly and each of them severally,
(b) covenantees, the covenant shall be construed as being also made with each of them.
(2) A covenant made with persons jointly to convey, pay money or do any other act to them or for their benefit, implies an obligation to do the act to, or for the benefit of—
(a) the survivor or survivors of them, or
(b) any other person on whom the right to sue on the covenant devolves.
(3) This section takes effect subject to the terms of the covenant or conveyance in which it is contained or implied or of any statutory provision implying the covenant.
(4) In this section “covenant” includes an express or implied covenant and a bond or obligation contained in a deed.
num: 83
paragraphs: — A covenant, whether express or implied, entered into by a person with that person jointly with another person or other persons shall be construed and is enforceable as if it had been entered into with that other person or persons alone.
num: 84
paragraphs: — (1) Where a person retains possession of documents and gives to another person in writing—
[CA 1881, s. 9]
(a) an acknowledgment of the right of that other to production of those documents and to delivery of copies of them (“the acknowledgment”),
(b) an undertaking for the safe custody of those documents (“the undertaking”),
the acknowledgment and the undertaking have the effect specified in this section.
(2) The obligations imposed by an acknowledgment are to—
(a) produce the documents or any of them at all reasonable times for the purpose of inspection and of comparison with abstracts or copies of the documents, by the person entitled to request production or by any person authorised in writing by that person,
(b) produce the documents or any of them in court or any other place where, or on any occasion when, production may properly be required for proving or supporting the title or claim of the person entitled to request production, or for any other purpose relating to that title or claim,
(c) deliver to the person entitled to request them such copies or abstracts, attested or unattested, of or from the documents or any of them.
(3) The obligation imposed by an undertaking is to keep the documents complete, safe, uncancelled and undefaced.
(4) The obligations shall be performed from time to time—
(a) in the case of the acknowledgment, at the request in writing of,
(b) in the case of the undertaking, in favour of,
the person to whom it is given, or any person, not being a tenant, who has or who claims any estate, interest or right through or under that person or who otherwise becomes through or under that person interested in or affected by the terms of the document to which the acknowledgment or undertaking relates.
(5) The acknowledgment and undertaking bind the documents to which they relate in the possession or under the control of the person who retains them and every other person having possession or control of them from time to time but they bind each such individual possessor or person as long only as that person has possession or control.
(6) Each person having possession or control of such documents is bound specifically to perform the obligations imposed by this section, unless prevented from doing so by fire or other inevitable accident, but all costs and expenses of or incidental to specific performance of the acknowledgment shall be paid by the person requesting performance.
(7) The acknowledgment does not confer any right to damages for loss or destruction of, or injury to, the documents to which it relates, arising from whatever cause.
(8) Any person claiming to be entitled to the benefit of an undertaking may apply to the court for damages for any loss or destruction of, or injury to, the documents or any of them to which it relates.
(9) Upon such application the court may direct such inquiries and make such order as to costs or other matters as it thinks fit.
(10) An acknowledgment or undertaking under this section satisfies any liability to give a covenant for production and delivery of copies of or extracts from documents or for safe custody of documents.
(11) The rights conferred by an acknowledgment or undertaking under this section are in addition to all such other rights relating to production, inspection or obtaining copies of documents as are not satisfied by the giving of the acknowledgment or undertaking.
(12) This section—
(a) has effect where an acknowledgment or undertaking is given by a person to that same person in different capacities in the same way as where it is given by one person to another,
(b) takes effect subject to the terms of the acknowledgment or undertaking.
num: 85
paragraphs: — (1) Subject to subsection (2), where an instrument makes provision for giving or serving a notice it may be given or served as if it were authorised or required to be given or served under this Act.
(2) Subsection (1) takes effect subject to the terms of the instrument.
num: 86
paragraphs: — (1) A purchaser is not affected prejudicially by notice of any fact, instrument, matter or thing unless—
[CA 1882, s. 3]
(a) it is within the purchaser’s own knowledge or would have come to the purchaser’s knowledge if such inquiries and inspections had been made as ought reasonably to have been made by the purchaser, or
(b) in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of the purchaser’s counsel, as such, or solicitor or other agent, as such, or would have come to the knowledge of the solicitor or other agent if such inquiries and inspections had been made as ought reasonably to have been made by the solicitor or agent.
(2) Without prejudice to section 57 (4), subsection (1) does not exempt a purchaser from any liability under, or any obligation to perform or observe, any covenant, provision or restriction contained in any instrument under which the purchaser’s title is derived, immediately or mediately; and such liability or obligation may be enforced in the same manner and to the same extent as if this section had not been enacted.
(3) A purchaser is not, by reason of anything in this section, affected by notice in any case where the purchaser would not have been so affected if this section had not been enacted.
num: 87
paragraphs: — (1) Without prejudice to any ground of appeal against any order, an order of the court under any statutory or other jurisdiction is not invalid as against a purchaser on the ground of want of—
[CA 1881, s. 70]
(a) jurisdiction, or
(b) any concurrence, consent, notice or service.
(2) This section applies to any lease, sale or other act under the authority of the court and purporting to be in pursuance of any statutory provision, notwithstanding any exception in that provision.
num: 88
paragraphs: — With a view to facilitating electronic conveyancing of land or providing further protection for the interests of vendors and purchasers of land, the following matters may be prescribed:
(a) the general conditions of sale applicable to a contract for the sale or other disposition of an estate or interest in land;
(b) any other matter referred to in this Part.
num: 89
paragraphs: — (1) A legal mortgage of land may only be created by a charge by deed and such a charge, unless the context requires otherwise, is referred to in this Part as a “mortgage”; and “mortgagor” and “mortgagee” shall be read accordingly.
(2) Subject to subsection (3), from the commencement of this Chapter—
(a) any instrument which would, but for the provisions of this section, convey a legal estate or interest in land by way of mortgage, or
(b) any other transaction which under any instrument would operate, but for the provisions of this section, as a mortgage by conveyance of a legal estate or interest in land,
does not create a legal mortgage.
(3) From the commencement of this Chapter, any transaction which under any statutory provision would, but for the provisions of this section, operate as a mortgage by conveyance of a legal estate or interest in land operates as if it were a mortgage under this Part.
(4) From the commencement of this Chapter, any power, whenever created, to mortgage or lend money on mortgage of a legal estate or interest in land operates as a power to mortgage the legal estate or interest by a mortgage under this Part or to lend money on the security of such a mortgage.
(5) This Part applies to both unregistered and registered land.
(6) Nothing in this section affects the creation of equitable mortgages of land.
(7) From the commencement of this Chapter, it is not possible to create a Welsh mortgage and any purported creation of such a mortgage is void.
(8) For the purposes of subsection (7), a “Welsh mortgage” includes any transaction under which a grantee or chargee of land is entitled to hold possession, and take rents and profits in lieu of interest on a loan, of land without the grantor or chargor being under a personal obligation to repay the loan, but being entitled to redeem.
num: 90
paragraphs: — (1) Subject to this Part, where a mortgage is created after the commencement of this Chapter—
(a) the mortgagor has the same powers and rights and the same protection at law and in equity as the mortgagor would have been entitled to,
(b) the mortgagee has the same obligations, powers and rights as the mortgagee would have had,
if the mortgagee’s security had been created by a conveyance before that commencement of the legal estate or interest in the land of the mortgagor.
(2) Without prejudice to the generality of subsection (1)(b) and subject to subsection (3), a first mortgagee has the same right to possession of documents of title as such mortgagee would have had if the security had been created by a conveyance before the commencement of this Chapter.
(3) Notwithstanding any stipulation to the contrary, a mortgagee who retains possession or control of documents of title relating to the mortgaged land is, in addition to being subject to the mortgagor’s rights under section 91 , responsible for their safe custody as if an undertaking for this were given under section 84 .
num: 91
paragraphs: — (1) Subject to subsection (2), a mortgagor, as long as the right to redeem exists, may from time to time, at reasonable times, inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged property in the possession or power of the mortgagee.
[CA 1881, s. 16]
(2) Rights under subsection (1) are exercisable—
(a) on the request of the mortgagor, and
(b) on payment by the mortgagor of the mortgagee’s reasonable costs and expenses in relation to the exercise.
(3) Subsection (1) has effect notwithstanding any stipulation to the contrary.
num: 92
paragraphs: — Notwithstanding any stipulation to the contrary, a mortgagor is entitled to redeem any housing loan mortgage without having to pay any money due under any other mortgage with the same mortgagee, whether that other mortgage is of the same or other property.
[CA 1881, s. 17]
num: 93
paragraphs: — (1) A mortgagor who is entitled to redeem may, subject to compliance with the terms on which the mortgagor would be entitled to require a discharge, require the mortgagee, instead of discharging the mortgage, to assign the mortgage debt and transfer the mortgage to any third person, as the mortgagor directs, and on the mortgagor so directing, the mortgagee is bound to assign and transfer accordingly.
[CA 1881, s. 15][CA 1882, s. 12]
(2) The rights conferred by subsection (1) belong to and may be enforced by each incumbrancer or the mortgagor notwithstanding any intermediate incumbrance, but a requisition of an incumbrancer prevails over a requisition of the mortgagor and, as between incumbrancers, a requisition of a prior incumbrancer prevails over a requisition of a subsequent incumbrancer.
(3) This section—
(a) does not apply in the case of a mortgagee being or having been in possession,
(b) applies notwithstanding any stipulation to the contrary.
num: 94
paragraphs: — (1) This section applies to any action brought by a mortgagor for—
(a) redemption, or
(b) sale, or
(c) the raising and payment in any manner of the mortgage debt, or
(d) any combination of these in the alternative.
(2) In any action to which this section applies the court may, if it thinks fit, direct a sale of the mortgaged property on such terms as it thinks fit.
(3) Without prejudice to the generality of the court’s discretion under subsection (2), it may—
(a) allow any time for redemption or payment of the mortgage debt,
(b) require lodgment in court of a sum to meet the expenses of a sale and to secure a performance of its terms,
(c) give directions as to costs and require the giving of security for costs,
(d) direct a sale without previously determining priorities of incumbrances,
(e) give the conduct of the sale to a particular party,
(f) make a vesting order conveying the mortgaged property to a purchaser or appoint a person to make such a conveyance.
(4) Except in the case of a housing loan mortgage, this section takes effect subject to the terms of the mortgage.
num: 95
paragraphs: — (1) Where—
[CA 1881, s. 61]
(a) money advanced or owing under a mortgage, or any part of it, is expressed to be advanced by or owing to two or more persons out of money, or as money, belonging to them on a joint account, or
(b) such a mortgage is made to two or more persons jointly and not in shares,
the mortgage debt, or other money or money’s worth for the time being due to those persons, shall, as between them and the mortgagor, be deemed to belong to them on a joint account.
(2) The receipt in writing of—
(a) the survivors or last survivor of those persons, or
(b) the personal representative of the last survivor,
is a complete discharge for all money or money’s worth for the time being due, notwithstanding any notice to the payer of a severance of such joint account.
(3) This section takes effect subject to the terms of the mortgage.
(4) In this section “mortgage” includes an obligation for payment of money and a transfer of a mortgage or of such an obligation; and “mortgagor” shall be read accordingly.
num: 96
paragraphs: — (1) Subject to this Part, the powers and rights of a mortgagee under sections 97 to 111 —
(a) apply to any mortgage created by deed after the commencement of this Chapter,
(b) vest, subject to section 62 of the Act of 1964, as soon as the mortgage is created,
(c) do not become exercisable unless their exercise is for the purpose of protecting the mortgaged property or realising the mortgagee’s security,
(d) in relation to the mortgaged property, apply to any part of it.
(2) A mortgagee’s right of foreclosure is abolished.
(3) The provisions relating to the powers and rights conferred by this Chapter apply to any housing loan mortgage notwithstanding any stipulation to the contrary and notwithstanding any powers and rights expressly conferred under such a mortgage, but in relation to any other mortgage, except where this Part provides to the contrary, take effect subject to the terms of the mortgage.
num: 97
paragraphs: — (1) Subject to section 98 , a mortgagee shall not take possession of the mortgaged property without a court order granted under this section, unless the mortgagor consents in writing to such taking not more than 7 days prior to such taking.
(2) A mortgagee may apply to the court for an order for possession of the mortgaged property and on such application the court may, if it thinks fit, order that possession be granted to the applicant on such terms and conditions, if any, as it thinks fit.
num: 98
paragraphs: — (1) Where a mortgagee has reasonable grounds for believing that—
(a) the mortgagor has abandoned the mortgaged property, and
(b) urgent steps are necessary to prevent deterioration of, or damage to, the property or entry on it by trespassers or other unauthorised persons,
the mortgagee may apply to the District Court, or any court already seised of any application or proceedings relating to the mortgaged property, for an order authorising the mortgagee to take possession of the property.
(2) On such an application the court may make an order authorising the mortgagee to take possession of the property on such terms and conditions as the court thinks fit, notwithstanding that the mortgagor dissents or does not appear.
(3) Without prejudice to the generality of subsection (2), an order under this section may specify—
(a) the period during which the mortgagee may retain possession of the mortgaged property,
(b) works which may be carried out by the mortgagee for the purpose of—
(i) protecting the mortgaged property, or
(ii) preparing it for sale in exercise of the mortgagee’s power under section 100 ,
(c) costs and expenses incurred by the mortgagee which may be added to the mortgage debt.
(4) The mortgagee is not liable to account strictly to the mortgagor during a period of possession under an order under this section.
num: 99
paragraphs: — (1) Subject to the terms of any order under section 97 or section 98 , a mortgagee in possession (or after the mortgagee has appointed a receiver and so long as the receiver acts, the receiver) shall take steps within a reasonable time to exercise the power to—
(a) sell the mortgaged property under section 100 , or
(b) if it is not appropriate to sell, lease the property under section 112 and use the rent and any other income received from the lessee to reduce the mortgage debt, including interest accrued or accruing.
(2) Section 34 of the Act of 1957 does not apply to a mortgagee who takes possession of land under a court order under section 97 or section 98 .
num: 100
paragraphs: — (1) Subject to subsection (3) and sections 101 to 107 , a mortgagee or any other person for the time being entitled to receive, and give a discharge for, the mortgage debt may sell or concur with any other person in selling the mortgaged property provided—
[CA 1881, ss. 19(1)(i), 20, 21(4), 21(6) and (7)]
[CA 1911, s. 5(2)]
(a) following service of notice on the mortgagor requiring payment of the mortgage debt, default has been made in payment of that debt, or part of it, for 3 months after such service, or
(b) some interest under the mortgage or, in the case of a mortgage debt payable by instalments, some instalment representing interest or part interest and part capital is in arrears and unpaid for 2 months after becoming due, or
(c) there has been a breach by the mortgagor, or some person concurring in the mortgage, of some other provision contained in the mortgage or any statutory provision, including this Act, other than a covenant for payment of the mortgage debt or interest,
and provided in each such case 28 days’ notice in the prescribed form has been served on the mortgagor warning of the possibility of such sale.
(2) The power of sale shall not become exercisable without a court order granted under subsection (3), unless the mortgagor consents in writing to such exercise not more than 7 days prior to such exercise.
(3) At any time after expiration of the 28 days’ notice given under subsection (1), a mortgagee may apply to the court for an order authorising exercise of the power of sale and on such application the court may, if it thinks fit, grant such authorisation to the applicant on such terms and conditions, if any, as it thinks fit.
(4) An application under subsection (3) may be made with an application under section 97 (2) and, in such case, both may be heard together.
(5) A mortgagee is not answerable for any involuntary loss resulting from the exercise or execution of the power of sale under this Chapter, of any trust connected with it or of any power or provision contained in the mortgage.
(6) Once the power of sale becomes exercisable, the person entitled to exercise it may demand and recover from any person, other than a person having in the mortgaged property an estate or interest in priority to the mortgage, all deeds and documents relating to the property, or its title, which a purchaser under the power of sale would be entitled to demand and recover.
num: 101
paragraphs: — (1) Upon an application for an order under, and without prejudice to the generality of, sections 97 (2) and 100 (3), where it appears to the court that the mortgagor is likely to be able within a reasonable period to pay any arrears, including interest, due under the mortgage or to remedy any other breach of obligation arising under it, the court may—
(a) adjourn the proceedings, or
(b) on making an order, or at any time before enforcement or implementation of such an order—
(i) stay the enforcement or implementation, or
(ii) postpone the date for delivery of possession to the mortgagee, or
(iii) suspend the order,
for such period or periods as it thinks reasonable and, if an order is suspended, the court may subsequently revive it.
(2) Any adjournment, stay, postponement or suspension under subsection (1) may be made subject to such terms and conditions with regard to payment by the mortgagor of any sum secured by the mortgage or remedying of any breach of obligation as the court thinks fit.
(3) The court may revoke or vary any term or condition imposed under subsection (2).
(4) Subject to subsection (5), an application under section 97 (2) or section 100 (3) may be made to the High Court.
(5) Where an application under section 97 (2) or section 100 (3) concerns property which is subject to a housing loan mortgage the Circuit Court shall have exclusive jurisdiction to deal with the application and the application shall not be made to the High Court.
(6) The jurisdiction of the Circuit Court to hear and determine applications under sections 97 (2) and 100 (3) concerning property which is subject to a housing loan mortgage shall be exercised by the judge of the circuit where the property or any part of it is situated.
(7) Nothing in this section affects the jurisdiction of the court under sections 7 and 8 of the Act of 1976.
num: 102
paragraphs: — Incidental to the power of sale are the powers to—
[CA 1881, s. 19(1)(i)][CA 1911, s. 4]
(a) sell the mortgaged property—
(i) subject to prior charges or not,
(ii) either together or in lots,
(iii) by public auction, tender or private contract,
(iv) subject to such conditions respecting title, evidence of title, or other matter as the mortgagee or other person selling thinks fit,
(b) rescind any contract for sale and resell,
(c) impose or reserve or make binding by covenant or otherwise, on the sold part of the mortgaged land, or on the unsold part, any restriction or reservation with respect to building on or other user of land, or with respect to mines and minerals, for the purpose of their more beneficial working, or with respect to any other matter,
(d) sell the mortgaged land, or all or any mines and minerals apart from the surface, with or without—
(i) any easement, right or privilege connected with building or other purposes on the sold part of the mortgaged land or the unsold part,
(ii) an exception or reservation of all or any of the mines and minerals in the mortgaged land and with or without a grant, reservation or imposition of powers of working, wayleaves, rights of way, rights of water and drainage and other powers, easements, rights and privileges for or connected with mining purposes, in relation to or on the sold part of the mortgaged land or the unsold part,
(iii) covenants by the purchaser to expend money on the land sold.
num: 103
paragraphs: — (1) In the exercise of the power of sale conferred by this Chapter or any express power of sale, the mortgagee, or any receiver or other person appointed by the mortgagee, shall, notwithstanding any stipulation to the contrary in the mortgage, ensure as far as is reasonably practicable that the mortgaged property is sold at the best price reasonably obtainable.
(2) Within 28 days after completion of the sale, the mortgagee shall serve a notice in the prescribed form on the mortgagor containing information relating to the sale.
(3) A mortgagee who, without reasonable cause, is in breach of the obligation imposed by subsection (2) is guilty of an offence.
(4) Nothing in this section affects the operation of any rule of law relating to the duty of a mortgagee to account to a mortgagor.
(5) This section does not apply to a building society within the meaning of the Act of 1989 or a receiver appointed under the Companies Acts.
(6) In subsection (2) “mortgagor” includes a person last known to the mortgagee to be the mortgagor, but does not include a person to whom, without the knowledge of the mortgagee, any of the rights or liabilities of the mortgagor under the mortgage have been assigned.
num: 104
paragraphs: — (1) A mortgagee exercising the power of sale conferred by this Chapter, or an express power of sale, has power to convey the property in accordance with subsection (2)—
[CA 1881, s. 21(1)]
(a) freed from all estates, interests and rights in respect of which the mortgage has priority,
(b) subject to all estates, interests and rights which have priority to the mortgage.
(2) Subject to subsections (3)(b) and (4), the conveyance—
(a) vests the estate or interest which has been mortgaged in the purchaser,
(b) extinguishes the mortgage, but without prejudice to any personal liability of the mortgagor not discharged out of the proceeds of sale,
(c) vests any fixtures or personal property included in the mortgage and the sale in the purchaser.
(3) This section—
(a) applies to a sale by a sub-mortgagee so as to enable the sub-mortgagee to convey the head-mortgagor’s property in the same manner as the mortgagee,
(b) does not apply to a mortgage of part only of a tenancy unless any rent which is reserved and any tenant’s covenants have been apportioned as regards the property mortgaged.
(4) Where the mortgaged property comprises registered land, the conveyance is subject to section 51 of the Act of 1964.
num: 105
paragraphs: — (1) Where a conveyance is made in professed exercise of the power of sale conferred by this Chapter, the title of the purchaser is not impeachable on the ground that—
[CA 1881, s. 21(2)][CA 1911, s. 5(1)]
(a) no case had arisen to authorise the sale, or
(b) due notice had not been given, or
(c) the power was otherwise improperly exercised,
and a purchaser is not, either before or on conveyance, required to see or inquire whether the power is properly exercised.
(2) Any person who suffers loss as a consequence of an unauthorised or improper exercise of the power of sale has a remedy in damages against the person exercising the power.
num: 106
paragraphs: — (1) Subject to subsection (2), the receipt in writing of a mortgagee is a conclusive discharge for any money arising under the power of sale conferred by this Chapter, or for any money or securities comprised in the mortgage, or arising under it, and a person paying or transferring the same to the mortgagee is not required to inquire whether any money remains due under the mortgage.
[CA 1881, s. 22)]
(2) Subsection (1) does not apply where the purchaser has actual knowledge of an impropriety or irregularity in the exercise of the power of sale or knowingly participates in such an exercise.
(3) Subject to section 107 (5), money received by a mortgagee under the mortgage or from the proceeds of securities comprised in it shall be applied as section 107 requires as regards money arising from a sale under the power of sale conferred by this Chapter.
num: 107
paragraphs: — (1) Money received by the mortgagee which arises from the sale of mortgaged property shall be applied in the following order—
[CA 1881, s. 21(3)]
(a) in discharge of prior incumbrances, if any, to which the sale was not made subject or payment into court of a sum to meet any such prior incumbrances,
(b) in payment of all charges, costs and expenses properly incurred by the mortgagee as incident to the sale or any attempted sale or otherwise,
(c) in discharge of the mortgage debt, interest and costs, and other money, if any, due under the mortgage.
(2) Any residue of the money so received shall be held on trust by the mortgagee to be paid to the person who would, but for the sale, be the mortgagee secured on the property sold next in priority after the mortgagee selling, or is otherwise authorised to give receipts for the money so received, or, if there is no such person, the mortgagor.
(3) Where, in accordance with subsection (2), the mortgagee gives effect to the trust of the residue by paying it to a subsequent mortgagee, the latter shall apply it in accordance with subsections (1)(c) and (2) and similar obligations attach to each subsequent mortgagee who receives any of the residue.
(4) Any mortgagee who so gives effect to the trust is discharged from any further obligation with respect to the residue.
(5) For the purposes of the application of subsection (1)(b) to money received under section 106 (3), charges, costs and expenses payable include those properly incurred in recovering and receiving the money or securities, and in conversion of securities into money, instead of those incident to the sale.
num: 108
paragraphs: — (1) Where—
[CA 1881, ss. 19(1)(iii), 24(1)—(7)]
(a) following service of notice on the mortgagor requiring payment of the mortgage debt, default has been made in payment of that debt, or part of it, for 3 months after such service, or
(b) some interest under the mortgage or, in the case of a mortgage debt payable by instalments, some instalment representing interest or part interest and part capital is in arrears and unpaid for 2 months after becoming due, or
(c) there has been a breach by the mortgagor, or some person concurring in the mortgage, of some other provision contained in the mortgage or any statutory provision, including this Act, other than a covenant for payment of the mortgage debt or interest,
the mortgagee or any other person for the time being entitled to receive, and give a discharge for, the mortgage debt, may appoint, by writing, such person as the mortgagee or that other person thinks fit to be a receiver of—
(i) the income of the mortgaged property, or
(ii) if the mortgaged property comprises an interest in income, or a rentcharge or other annual or other periodical sum, that property.
(2) A receiver appointed under subsection (1) is the agent of the mortgagor, who is solely responsible for the receiver’s acts or defaults, unless the mortgage provides otherwise.
(3) The receiver may—
(a) demand and recover all the income to which the appointment relates, by action or otherwise, in the name either of the mortgagor or mortgagee, to the full extent of the estate or interest which the mortgagor could dispose of,
(b) give effectual receipts accordingly for such income,
(c) exercise any powers delegated by the mortgagee or other person to the receiver.
(4) Any power delegated to the receiver shall be exercised in accordance with this Chapter.
(5) A person paying money to the receiver is not required to inquire whether the receiver is authorised to act.
(6) The receiver may be removed, and a new receiver may be appointed, by the mortgagee or the other person in writing.
(7) The receiver may retain out of any money received, for remuneration and in satisfaction of all costs incurred as receiver, a commission at the prescribed rate.
(8) The receiver shall, if so directed in writing by the mortgagee, insure to the extent, if any, to which the mortgagee might have insured and keep insured against loss or damage by fire, flood, storm, tempest or other perils commonly covered by a policy of comprehensive insurance, out of the money received, any property comprised in the mortgage, whether affixed to land or not, which is of an insurable nature.
num: 109
paragraphs: — (1) Subject to section 110 (4), the receiver shall apply all money received in the following order—
[CA 1881, s. 24(8)]
(a) in discharge of all rates, rents, taxes and other outgoings affecting the mortgaged property,
(b) in discharge of all annual sums or other payments, and the interest on all principal sums, which have priority to the mortgage under which the receiver is appointed,
(c) in payment of the receiver’s commission,
(d) in payment of premiums on insurance, if any, payable under this Chapter or the mortgage,
(e) in defraying the cost of repairs as directed in writing by the mortgagee,
(f) in payment of interest accruing due in respect of any principal sum due under the mortgage,
(g) in or towards discharge of the principal sum, if so directed in writing by the mortgagee.
(2) The residue (if any) of any money so received after making the payments specified in subsection (1) shall be paid by the receiver to the person who, but for the possession of the receiver, would have been entitled to receive that money or who is otherwise entitled to the mortgaged property.
num: 110
paragraphs: — (1) A mortgagee may insure and keep insured any building, effects or other property of an insurable nature, whether affixed to the land or not, which forms part of the mortgaged property.
[CA 1881, ss. 19(1)(ii), 23]
(2) The insurance shall be for the full reinstatement cost of repairing any loss or damage arising from fire, flood, storm, tempest or other perils commonly covered by a policy of comprehensive insurance.
(3) The mortgagee may give a good discharge for any money payable under any such insurance, but, subject to subsection (4), so much of such money as exceeds the mortgage debt shall be dealt with by the mortgagee as if it were the proceeds of a sale of the mortgaged property.
(4) The mortgagee may require any money received under such or other insurance of the mortgaged property to be applied—
(a) by the mortgagor in making good loss or damage covered by the insurance, or
(b) in or towards the discharge of the mortgage debt.
num: 111
paragraphs: — (1) Where a mortgage is expressed to be created on any land for the purpose of securing future advances (whether with or without present advances), the mortgagee is entitled, in priority to any subsequent mortgage, to the payment of any sum due in respect of any such future advances, except any advances which may have been made after the date of, and with express notice in writing of, the subsequent mortgage.
(2) In subsection (1) “future advances” includes sums from time to time due on a current account and all sums which by agreement or in the course of business between the parties are considered to be advances on the security of the mortgage.
(3) Save in regard to the making of such future advances the right to tack in any form is abolished, but without prejudice to any priority acquired by tacking before the commencement of this Chapter.
(4) This section—
(a) applies to mortgages made before or after the commencement of this Chapter,
(b) does not apply to registered land.
num: 112
paragraphs: — (1) A mortgagor of land, while in possession, may, as against every other incumbrancer, lease the land with the consent in writing of the mortgagee, which consent shall not be unreasonably withheld.
[CA 1881, s. 18][CA 1911, s. 3]
(2) A lease made without such consent is voidable by a mortgagee who establishes that—
(a) the lessee had actual knowledge of the mortgage at the time of the granting of the lease, and
(b) the granting had prejudiced the mortgagee.
(3) A mortgagee of land while in possession or, after the mortgagee has appointed a receiver and so long as the receiver acts, the receiver, may, as against all prior incumbrancers, if any, and the mortgagor, lease the land provided—
(a) it is for the purpose of—
(i) preserving the value of the land, or
(ii) protection of the mortgagee’s security, or
(iii) raising income to pay interest due under the mortgage or otherwise reduce the debt,
or
(b) it is otherwise an appropriate use of the land pending its sale, or
(c) the mortgagor consents in writing, or
(d) the court in any action relating to the mortgaged land makes an order permitting such lease.
(4) In this section “ mortgagor” does not include an incumbrancer deriving title from or under the original mortgagor.
(5) The power of leasing conferred by this section applies only to mortgages created after the commencement of this Part.
num: 113
paragraphs: — (1) A lease to be granted under section 112 shall—
(a) reserve the best rent which can reasonably be obtained, taking into account any premium or other capital sum paid by the lessee and other relevant circumstances, and
(b) be otherwise granted on the best terms that can reasonably be obtained and accord with good commercial practice,
and execution of the lease by the lessor shall be sufficient evidence of execution and delivery of the lease.
(2) A purported lease which fails to comply with subsection (1) is void.
(3) A duplicate of a lease granted in accordance with subsection (1) shall be executed by the lessee and delivered to the lessor.
(4) In the case of a lease by the mortgagor, the mortgagor shall, within one month after making the lease, deliver to the mortgagee or, where there are more than one, the mortgagee first in priority, a copy of the lease duly executed by the lessee.
(5) Failure by the mortgagor to comply with subsection (4) does not affect the validity of the lease.
(6) Where a premium or other capital sum is paid by the lessee and the lease is granted by—
(a) the mortgagor, it, or, where it exceeds the mortgage debt, so much of it as is required for the purpose, shall be applied in or towards discharge of that debt, whether or not the date for redemption has arrived,
(b) the mortgagee, it shall be applied in accordance with section 107 as if it comprised the proceeds of a sale.
num: 114
paragraphs: — (1) Subject to subsection (2), a mortgagor or mortgagee in possession (or after the mortgagee has appointed a receiver and so long as the receiver acts, the receiver) may accept a surrender of a lease previously granted under section 112 or as authorised by the terms of the mortgage, whether the surrender relates to the whole or part only of the land leased.
[CA 1911, s. 3]
(2) Subsection (1) applies only where the surrender of the previous lease is for the purpose of granting a new lease under section 112 or as authorised by the terms of the mortgage.
(3) On such a surrender—
(a) the term of the new lease shall not be less than the unexpired term which would have existed under the surrendered lease if it not been surrendered,
(b) the rent reserved by the new lease shall not be less than the rent which would have been payable under the surrendered lease if it had not been surrendered,
(c) where part only of the land has been surrendered—
(i) the rent reserved by the new lease shall not be less than is required to make the aggregate rents payable under the remaining lease and new lease not less than the rent payable under the surrendered lease if no partial surrender had been accepted, and
(ii) any other modifications of the original lease shall comply with section 113 .
(4) A purported acceptance of a surrender which fails to comply with subsection (3) is void.
(5) Where a surrender involves payment of a premium or consideration other than the agreement to accept surrender, the surrender is void unless, in the case of a surrender—
(a) to the mortgagor, the consent of incumbrancers, or
(b) to a second or subsequent mortgagee, the consent of any prior incumbrancer,
is obtained.
num: 115
paragraphs: — In this Part, unless the context otherwise requires—
[JMA 1858, ss. 3 and 4]
“creditor” includes—
(a) an authorised agent and any person authorised by the court to register a judgment mortgage on behalf of a judgment creditor,
(b) one or some only of several creditors who have obtained the same judgment;
“judgment” includes any decree or order of any court of record.
num: 116
paragraphs: — (1) A creditor who has obtained a judgment against a person may apply to the Property Registration Authority to register a judgment mortgage against that person’s estate or interest in land.
[JMA 1850, s. 6]
(2) A judgment mortgage shall be registered in the Registry of Deeds or Land Registry, as appropriate.
(3) For the avoidance of doubt it is and always has been the case that—
(a) there is no requirement to re-register a judgment mortgage in order to maintain its validity or enforceability against the land or a purchaser of the land,
(b) a judgment mortgage may be registered—
(i) notwithstanding that the judgment debtor has obtained an order of the court granting a stay of execution, unless the court orders otherwise,
(ii) against the interest of a beneficiary under a trust for sale of land.
num: 117
paragraphs: — (1) Registration of a judgment mortgage under section 116 operates to charge the judgment debtor's estate or interest in the land with the judgment debt and entitles the judgment mortgagee to apply to the court for an order under this section or section 31 .
[JMA 1850, ss. 7 and 8][JMA 1850, s. 8]
(2) On such an application the court may make—
(a) an order for the taking of an account of other incumbrances affecting the land, if any, and the making of inquiries as to the respective priorities of any such incumbrances,
(b) an order for the sale of the land, and where appropriate, the distribution of the proceeds of sale,
(c) such other order for enforcement of the judgment mortgage as the court thinks appropriate.
(3) The judgment mortgage is subject to any right or incumbrance affecting the judgment debtor’s land, whether registered or not, at the time of its registration.
(4) For the purposes of this section, a right or incumbrance does not include a claim made in an action to a judgment debtor's estate or interest in land (including such an estate or interest which a person receives, whether in whole or in part, by an order made in the action) whether by way of claim or counterclaim in the action, unless the claim seeks an order—
(a) under the Act of 1976, the Act of 1995 or the Act of 1996, or
(b) specifically against that estate or interest in land.
(5) Section 74 applies to a voluntary conveyance of land made by the judgment debtor before the creditor registers a judgment mortgage against that land under section 116 as if the creditor were a purchaser for the purposes of section 74 .
num: 118
paragraphs: — Registration in the Registry of Deeds of a certificate of satisfaction of a judgment in respect of which a judgment mortgage has been registered extinguishes the judgment mortgage.
[JMA 1850, s. 9]
num: 119
paragraphs: — Section 32 of the Act of 1957 is amended by the addition of the following subsection:
“(3) In the case of a judgment mortgage, the right of action accrues from the date the judgment becomes enforceable and not the date on which it is registered as a mortgage.”.
num: 120
paragraphs: — In this Part—
“ manner ” includes form;
“prescribed” means prescribed by rules of court;
“register” means the register of lis pendens maintained under section 121 .
num: 121
paragraphs: — (1) A register of lis pendens affecting land shall be maintained in the prescribed manner in the Central Office of the High Court.
[JA 1844, s. 10]
(2) The following may be registered as a lis pendens:
(a) any action in the Circuit Court or the High Court in which a claim is made to an estate or interest in land (including such an estate or interest which a person receives, whether in whole or in part, by an order made in the action) whether by way of claim or counterclaim in the action; and
(b) any proceedings to have a conveyance of an estate or interest in land declared void.
(3) Such particulars as may be prescribed shall be entered in the register.
(4) A lis pendens registered under section 10 of the Judgments (Ireland) Act 1844 which has not been vacated before the repeal of that section continues to have effect as if that section has not been repealed and such registration shall be deemed to form part of the register to be maintained under subsection (1).
num: 122
paragraphs: — An entry of a lis pendens in the register shall be cancelled—
[JRA 1871, s. 21]
(a) with the consent, given in the prescribed manner, of the person on whose application it was registered, or
(b) upon the lodgement in the Central Office of the High Court of a notice, given in the prescribed manner, of an order under section 123 vacating the lis pendens.
num: 123
paragraphs: — Subject to section 124 , a court may make an order to vacate a lis pendens on application by—
[LPA 1867, s. 2]
(a) the person on whose application it was registered, or
(b) any person affected by it, on notice to the person on whose application it was registered—
(i) where the action to which it relates has been discontinued or determined, or
(ii) where the court is satisfied that there has been an unreasonable delay in prosecuting the action or the action is not being prosecuted bona fide.
num: 124
paragraphs: — A court shall not under section 123 vacate a lis pendens, registered under section 10 of the Judgments (Ireland) Act 1844 before the repeal of that section, on a ground other than one on which the lis pendens could have been vacated immediately before that repeal.
num: 125
paragraphs: — A lis pendens does not bind a purchaser of unregistered land without actual knowledge of it unless it has been registered in the Central Office of the High Court within 5 years before the making of the conveyance to the purchaser.
[JMA 1850, s. 5]
num: 126
paragraphs: — The Courts and Court Officers Act 1995 is amended, in the Second Schedule, in paragraph 1, by substituting the following for subparagraph (xxiv):
“(xxiv) An order under section 123 of the Land and Conveyancing Law Reform Act 2009.”.
num: 127
paragraphs: — Section 3 (interpretation) of the Act of 1964 is amended in subsection (1)—
(a) by the insertion of the following definitions:
“ ‘instrument’ has the meaning given to it by section 3 of the Land and Conveyancing Law Reform Act 2009;
‘owner’ includes full owner;”,
(b) by the substitution of “ ‘freehold land’ means land the ownership of which is an estate in fee simple in possession;” for the definition of “freehold land”,
(c) by the substitution of “ ‘ judgment mortgage ’ means a mortgage registered by a judgment creditor pursuant to section 116 of the Land and Conveyancing Law Reform Act 2009;” for the definition of “judgment mortgage”,
(d) by the substitution of “ ‘land’ has the meaning given to it by section 3 of the Land and Conveyancing Law Reform Act 2009;” for the definition of “land”,
(e) by the substitution of “estate” for “interest” where it first occurs in the definition of “leasehold interest”, and
(f) by the deletion of the definitions of “Bankruptcy Acts”, “Registry of Deeds”, “Settled Land Acts”, “settlement”, “settled land”, “tenant for life” and “trustees of the settlement”.
num: 128
paragraphs: — The following section is substituted for section 25 (effect of failure to register where registration compulsory) of the Act of 1964:
“25.— A person shall not acquire an estate or interest in land in any case in which registration of ownership of the land is or becomes compulsory under section 23 or 24 unless the person is registered as owner of the estate or interest within 6 months after the purported acquisition or at such later time as the Authority (or, in case of refusal, the court) may sanction in any particular case, but on any such registration the person’s title shall relate back to the date of the purported acquisition, and any dealings with the land before the registration shall have effect accordingly.”.
num: 129
paragraphs: — Section 69 (burdens which may be registered as affecting registered land) of the Act of 1964 is amended by the insertion in subsection (1) of the following paragraph after paragraph (k):
“(kk) a freehold covenant within the meaning of section 48 of the Land and Conveyancing Law Reform Act 2009;”.
num: 130
paragraphs: — The following section is substituted for section 71 (registration of judgment mortgages) of the Act of 1964:
“71.— (1) Application for registration of a judgment mortgage under section 116 of the Land and Conveyancing Law Reform Act 2009 shall, in the case of registered land, be in such form and in such manner as may be prescribed.
(2) Registration under subsection (1) shall operate to charge the estate or interest of the judgment debtor subject to—
(a) the burdens, if any, registered as affecting that estate or interest,
(b) the burdens to which, though not so registered, that estate or interest is subject by virtue of section 72,
(c) all unregistered rights subject to which the judgment debtor held that estate or interest at the time of registration,
and with the effect stated in section 117 of the said 2009 Act.”.
num: 131
paragraphs: — In this Part, “business” and “lease” have the same meanings as they have in the Landlord and Tenant (Amendment) Act 1980 .
num: 132
paragraphs: — (1) This section applies to a lease of land to be used wholly or partly for the purpose of carrying on a business.
(2) Subsection (1) shall not apply where—
(a) the lease concerned, or
(b) an agreement for such a lease,
is entered into prior to the commencement of this section.
(3) A provision in a lease to which this section applies which provides for the review of the rent payable under the lease shall be construed as providing that the rent payable following such review may be fixed at an amount which is less than, greater than or the same as the amount of rent payable immediately prior to the date on which the rent falls to be reviewed.
(4) Subsection (3) shall apply—
(a) notwithstanding any provision to the contrary contained in the lease or in any agreement for the lease, and
(b) only as respects that part of the land demised by the lease in which business is permitted to be carried on under the terms of the lease.
num: 133
paragraphs: — The power of the sheriff, or of other persons entitled to exercise the sheriff’s powers, to seize a tenancy under a writ of fieri facias or other process of execution is abolished except in relation to a tenancy of land that is used wholly or partly for the purpose of carrying on a business.