1
Q
What is a fee simple?
A
Heritable estate; closest to absolute ownership.
2
Q
How is a fee simple conveyed?
A
S52(4) LCLRA: By deed + words of limitation.
3
Q
Words of purchase vs limitation?
A
Purchase = identifies grantee Limitation = defines estate
4
Q
Effect of missing words of limitation pre-2009?
A
Only life estate passes.
5
Q
Determinable fee vs condition subsequent?
A
Determinable → automatic end (“until”, “while”) Condition → requires action (“on condition that”)
6
Q
What happens on determinable event?
A
Automatic reverter to grantor.
7
Q
What is free alienability?
A
Fee simple must be freely transferable - s9 (4) LCLRA
8
Q
What is a life estate?
A
Estate lasting for life; equitable only post-2009.
9
Q
What is waste?
A
Damage reducing value of land.
10
Q
Liability for waste?
A
s18 (4) LCLRA - Still applies after conversion of a life estate into an equitable interest
11
Q
Where are trusts governed?
A
Part IV LCLRA 2009.
12
Q
What is the doctrine of notice?
A
BFP for value without notice takes free of equitable interests.
13
Q
What is construtive notice?
A
What purchaser ought reasonably to know. S86 LCLRA: A purchaser is not affected prejudicially by notice of any fact, instrument, matter or thing unless it’s within/ought reasonably w/inquiries their [legal adviser/agent’s] knowledge.
14
Q
Joint tenancy vs tenancy in common?
A
JT → survivorship and unsliced pizza TIC → distinct shares - sliced pizza
15
Q
How is a Joint Tenancy identified?
A
The the four unities?Possession, interest, title, time
16
Q
What is severance?
A
JT → TIC
17
Q
How is a Joint Tenancy created in law?
A
The common law rule is that where property is conveyed to 2+ there is a presumption that they are to hold as joint tenants. This presumption can be rebutted by the absence of 1 of the 4 unities or words of severance in the deed
18
Q
How does severance take place in law?
A
S30 and 31 of LCLRA: Any attempt at unilateral severance is void, unless (a) prior written consent; or (b) consent dispensed with under Section 31 of the 2009 Act. S31: court ordered severance. Anyone w/estate/ interest may apply incl trustees/judgment creditors.
19
Q
Can JT be severed unilaterally?
A
No - s31 LCLRA - (without consent or court order)
20
Q
How does severance take place in equity?
A
• Mutual agreement • Course of dealing • Contract for sale by one JT w/a third party • Contract by all JTs
21
Q
How can co-ownership be determined?
A
- Voluntarily: Deed and Partition of Property - division of the land. 2. By court order (S31 LCLRA): Reliefs: partition or order for sale in lieu of partition. Wide court discretion. 3. Union in a sole tenant i.e. everyone else died.
22
Q
What is adverse possession?
A
Squatter acquires title after limitation period.
23
Q
Time limit for adverse possession?
A
S13 SoL12 years. 30 years for state; 60 years for foreshore; 6 years where the interest is the estate of the deceased (extended by 3 years viz shares of someone under a disability; standard 12 years applies to personal representatives).
24
Q
Requirements for adverse possession?
A
Factual possession + intention to possess.
25
What defences exist to a claim of adverse possession?
1. The owner was under a disability for some/all of the limitation period. 2. During the limitation period, the squatter acknowledged the true owner’s title in writing. Stopping the clock involves commencing an action for recover or taking possession physically. Having nothing more than future plans for the land =/= defence
26
What is the position regarding encroachment?
If the person claiming adverse possession holds their property under a lease and encroaches on adjoining land, there is a presumption that the encroached plot is annexed to their lands. On termination of the lease, the plot must be regarded as having accrued to the landlord’s reversion together w/the demised premises. The interest acquired is not a registerable interest. It is merely a right to remain in possession until expiration of the lease. This presumption is difficult to rebut.
27
How do you apply for adverse possession?
An application for adverse possession can be made directly to Tailte Éireann by way of prescribed forms, Form 5 in respect of unregistered property and Form 6 in respect of registered property. A refusal can be appealed to court.
28
What does FHPA 1976 do?
S4 Protects non-owning spouse from sale without consent.
29
What does s4 FHPA provide?
Voidable (not void). S4: where the non-owning spouse unreasonably withholds consent, the vendor/purchaser can apply to court for an order dispensing w/need for consent.
30
Does FHPA create ownership?
No — veto only.
31
Limitation period for FHPA actions?
6 years (exception if in occupation).
32
Is there advance consent under FHPA?
Yes - section 54
33
What is a ‘conveyance’ for the purpose of FHPA?
S1: “mortgage, lease, assent, transfer, disclaimer, release and any other disposition of property otherwise than by a will or a donatio mortis causa and will include an enforceable agreement (whether conditional/unconditional) to make any such conveyance”.
34
What is not a ‘conveyance’ for the purpose of FHPA?
Judgment mortgage =/= a conveyance. There is nothing preventing a judgment mortgage being registered against a family home w/o the consent of a non-owning spouse.
35
How can a non-owning spouse signal to future purchasers that their consent is needed?
S12 FHPA allows for application to the Land Registry for entry of a note of their marriage to a person having an interest in the property.
36
When can consent be dispensed w/under the FHPA?
S4: where the non-owning spouse unreasonably withholds consent, the vendor/purchaser can apply to court for an order dispensing w/need for consent.
37
What recourse does a spouse have where the owning spouse may lose the home?
S5: non-owning spouse can apply to Court for relief where the other is engaging in conduct as may lead to the loss of any interest in the home/render it uninhabitable w/intention of depriving the applicant/dependent children of the home.
38
Does the FHPA impact on succession?
No.
39
What is a ‘family home’?
S2 - where they reside/used to reside but for the conduct of the other spouse. Includes subsidiary land but not commercial land or land on which the couple does not yet live.
40
What protections does a purchaser have under FHPA ?
S 3 offers protection. Where the conveyance is to a bona fide purchaser for value w/o notice that the consent is required/ has not been given, the conveyance will be valid. Where the purchaser is on notice that consent was required and not given, the conveyance will be void.
41
What is the test where a vendor doesn’t disclose that the land is a family home?
Reynolds v. Waters [1982]: SC: If the statement turns out to be inaccurate the bona fide purchaser is protected by s3. If there were reasons the purchaser’s solicitor should have doubted the veracity of the vendor the situation might differ.
42
What protections exist for civil partners in respect of their shared home?
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010: Part IV provides protection for the “shared home” of registered civil partners The wording and provision contained in Part 4 of the 2010 Act mirrors the 1976 Act.
43
What is an easement?
Right over neighbouring land (e.g. right of way).
44
4 requirements for an easement?
Dominant + servient land Accommodation Different owners Capable of grant
45
How is an easement acquired?
Express, implied, prescription, statute.
46
What is a profit à prendre?
Right to take natural resources from land.
47
What is a mortgage?
Security over land for a loan.
48
Modern form of mortgage creation?
Charge (not transfer of title).
49
Mortgagee remedies?
Possession, sale, receiver.
50
What rights does a mortgagee have?
- Power to insure – s110 LCLRA - Power of possession w/court order/consent of mortgagor – s97(1) - Possession of title deeds – s90 - Inclusion of all buildings on the land – s71 - Power of sale – s100 - Appointment of a receiver – s108 - Foreclosure – abolished by LCLRA – NOT allowed in IE - Sue for breach of covenant to repay the debt
51
What rights does a mortgagor have?
- Right to redeem the property on repaymet of the principal sum, interest and legal costs - Possession and associated rights (e.g. nuisance and trespass) - Title deeds inspection and obtaining – s91 - Sale – subject to the mortgage
52
Is a mortgagee entitled to vacant possession?
Yes, the court can order vacant possession if this enhances the value of the property. While a mortgagee is not required to realise the highest price possible, he must make take reasonable care to obtain a fair market price for the property.
53
Is foreclosure allowed?
No (abolished).
54
How are mortgages created in equity?
An equitable mortgage may arise in the case of a second mortgage where the mortgagor already conveyed his legal interest to the first mortgagee. It may arise where there has been an agreement for a mortgage, but no formal deed of conveyance has been executed.
55
When can a mortgagee sell land?
S100 LCLRA: (a) following service of notice on the mortgagor requiring payment of the debt, default of that debt, or part of it, for 3 months after 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 of some provision in the mortgage or any statutory provision, including the 2009 Act, other than a covenant for payment of the mortgage debt or interest, and provided in each such case 28 days’ notice in a prescribed form has been served on the mortgagor warning of the possibility of such sale. This statutory requirement is a condition precedent to the power becoming exercisable.
56
Lease vs licence?
Lease = exclusive possession Licence = permission only
57
How is the basis of a lease determined?
Contract, not tenure.
58
Statute of Frauds Formality?
Writing required if >1 year.
59
What is a folio?
Record of ownership + burdens.
60
Caveat emptor?
Buyer responsible for physical condition.
61
No spouse consent on sale?
→ Voidable under FHPA.
62
Purchaser unaware of equitable interest?
→ Protected if bona fide purchaser.
63
Co-owners contributed unequally?
→ TIC in equity.
64
Mortgage default?
→ Sale after statutory notice.
65
Delay in enforcing easement?
→ Possible extinction by abandonment.
66
What are freehold covenants?
Contract attached to freehold transfer. Made b/w covenantee (person who has the benefit of the covenant) and covenantor (the party who has the burden of the covenant) and the covenant may be positive/negative.
67
When will a covenant’s benefit “run with the land” pre LCLRA?
1) If the covenantee has a legal interest in the subject matter of the covenant. 2) successor in title of the covenantee has the same legal estate as the OG covenantee 3) the covenant touches and concerns the covenantee’s land.
68
When will a covenant’s burden “run with the land” pre-LCLRa?
It won’t, subject to exceptions:
69
What’s the effect of the LCLA on covenants?
49 replaces common law and equity rules regarding freehold covenants entered after 2009.Freehold covenants of all kinds are capable of succession.
70
How to extinguish a freehold covenant?
S50: completely discharge, partially discharge, modify terms.
71
What is a leasehold covenant?
successors in title to the tenant have to comply with all of the obligations set out in the lease.
72
What happens to a covenant if a lessee purchases the fee simple?
Covenant remains alive where it protects/enhances the amenities of any land occupied by the former lessor, or it relates to a statutory duty, or it relates to e.g. a right of way.
73
How can equity prevent a covenant being exercised?
Landlord/tenant can be estopped from enforcing the covenant due to agreement, conduct, representations, reliance, detriment.
74
What is a bare licence?
Permission without consideration?
75
What is a licence coupled with an interest?
Where a person has a right over land such as an easement/ profit à prendre, he may enjoy a license that arises by implication to facilitate exercise of the right.
76
What is a contractual licence?
A contractual licence is a licence which is supported by consideration and the licensor and licensee are therefore bound in a contractual relationship. Does not bind successors in title.
77
What is a licence by Estoppel?
A licensor will be estopped from revoking his licence where the licensee acted to his detriment w/knowledge and permission of the licensor. Binds successors.
78
What is a lease?
Agreement where one party grants another a right to exclusive possession for a limited time for rent/similar.
79
What formalities underpin creating a lease?
Must be executed in writing if longer than a year.
80
What implied covenants bind landlords?
S41 Deasy’s Act: that the landlord has good title to grant the lease; that the tenant will have peaceable enjoyment of the premises.
81
What implied covenants bind tenants?
S42 deasy’s Act: payment of rent and leaving the property in good order.
82
How can a lease be terminated?
Expiry, surrender, merger, forfeiture for breach of covenant, notice to quit.
83
What is required for the contract for sale?
1. Written contract – s51 2009 Act – note/memo w/property, price, parties 2. Need for deposit can be dispensed w/in contract.
84
What does ‘subject to contract’ entail in correspondence?
“subject to contract/contract denied” in correspondence will usually confirm the non-existence of a previously concluded oral contract for the sale of land so as to exclude the requirements of the Statute of Frauds. Where a vendor’s solicitor issues a contract under the protection of the phrase “subject to contract” this is an invitation to treat. Return of a contract signed by the purchaser is an offer to purchase not deemed an acceptance. Return of the contract signed by the vendor is an acceptance of the offer. The contract comes into existence at this point. Vendor is not bound until he returned the signed contract to the purchaser or his solicitor. The purchaser is not bound until the vendor returns the contract signed; before then, open to the purchaser to withdraw offer w/sufficient notice to vendor.
85
What are the essential elements of a lease?
S3 Deasy’s Act: relationship of landlord and tenant shall be founded upon the express/implied contract and not tenure /service. Exclusive possession.
86
What duties bind the vendor after signing a contract?
S52 LCLRA – beneficial title passes on the making of an enforceable contract but the vendor must still maintain the land or rescind for breach of contract.
87
What is caveat emptor?
Buyer beware. General Conditions 13 and 14 of the General Conditions of Sale place an onus on the purchaser to check land’s physical condition.
88
Who is responsible for ensuring copies of all listed documents on the draft contract are available?
The purchaser – General Conditions of Sale 6.
89
What limits are placed on purchasers of a leasehold title?
General Conditions 9, 10, 14 – cannot look for evidence of the landlord’s title unless required, in which case, this should be sought at the pre-contract stage.
90
Can a prospective lessee look for evidence of title?
No – s57 2009 Act.
91
What duties of disclosure bind a vendor?
General Condition 13 requires the vendor to disclose prior to sale all easements, rights, privileges, taxes and other liabilities that he knows to affect the property or to be likely to affect it following the completion of the sale.
92
What is the duty of disclosure related to?
Duty of disclosure relates only to defects in title and not physical defects to which caveat emptor applies.
93
What are patent defects?
Patent defects are those reasonably discoverable by purchaser from an inspection/title docs/those which are otherwise obvious from facts brought to his attention.
94
What does General Condition 31 state?
vendor must ensure give purchaser notice before sale of the matters affecting the property and set out therein. Failure to show that the purchaser received notice or was aware of any of these matters will entitle the purchaser to rescind the contract before completion and claim the return of his deposit under General Condition 33.
95
Wherre is an unregistered property registered?
Registry of Deeds
95
What does the Registry of Deeds do?
RoD confirms existence of a deed, its due execution and its priority.
96
What does the Registy of Deeds not do?
It does not confirm the validity of the title of any person who claims to have an interest in the property.
97
How is title transferred for unregistered proprties?
Title is transferred when the deed of the purchase has been delivered and the purchase monies paid over. RoD is not concerned with the validity of the deed once it complies with certain basic formal requirements. Registration RoD is not compulsory, however, when a person does not register a deed they may lose priority to a deed which, although executed subsequently, is registered.
98
How is a deed registered in the Registry of deeds?
By a memorial NOW replaced by a form from Tailte.ie
99
Where is a registered property registered?
In the Land Registry
100
What is the Land Registry?
LR provides for registration of ownership of land. Search in the LR will disclose inforof the ownership, simplifying title investigation for conveyancers. Registry consists of a list of landowners w/particulars of the properties owned and of the charges and restrictions affecting them.
LR is kept up to date and is conclusive as to the title therein. All properties purchased post 1 June 2011 must go on LR
101
What is the effect of registering a property in the Land Registry in terms of title?
Once title is registered in LR it carries a State guarantee as to its validity.
102
What is a folio?
REGISTERED LAND; Each Folio has a description of the property, name of the registered owner and the capacity in which they hold the land and a list of any burdens/charges capable of registration under s69. LR holds File Plans showing the extent of the property on the folio. (these are updated w/Ordnance Survey map detail). Each Folio has a File Plan showing the boundaries of the property. NB: this is not conclusive as to the extent of the lands/boundaries.
103
How is registered land disposed of or acquired?
Property in the LR is disposed of and acquired by a deed of transfer. Freehold and leasehold property can be transferred once registered.
Title to registered land only passes on the registration of a deed of transfer and not at the date of its execution. Thus, once a property is registered in LR, every subsequent disposal of an interest in the property must be registered on the folio.
104
After how long are statements in deeds/leases deemed to be true without evidence to the contrary?
15 years - s59 LCLRA
105
What is the bearing of a pre June 1959 date of death on the chain of title?
A devise of freehold property in a will vested directly in the beneficiaries named in the will. Therefore, to pass title a grant of probate and the original will is required. Where the owner died intestate a grant of letters of administration will be required with an assent, conveyance or assignment from the personal representative to the beneficiary.
106
What is the effect of a post June 1959 death on the chain of title?
Post 1st of June 1959: Administration of Estates Act, 1959 provided that all the interest of the deceased person, testate/intestate, vests in the personal representative. In such a situation a grant of probate/letters of administration will be required together w/an assent from the personal representative vesting the property in the beneficiary. The Succession Act ,1965 gives the personal representative the power to sell the property and the beneficiary is not required to join in the sale. A purchaser is entitled to presume that the personal rep is acting correctly and does not need to inquire behind the sale.
107
How do you ascertain title when a co-owner died?
If one of two + joint owners dies, a death cert of is evidence that interest in the property has passed by right of survivorship.
A statutory declaration should be furnished setting out the fact of the death, exhibiting the death cert and confirming that nothing had been done to sever the joint tenancy.
W/a tenancy-in-common, there is no right of survivorship and the share of the deceased owner must be deduced through his will or by reference to the rules on intestacy.
108
What is a lis pendens?
Notifies potential purchasers that land is subject to litigation. Prospective purchasers should check with Central Office if one exists.
109
What does a claimant for specific performance need to show?
1 prove the existence of a concluded contract between the parties whose terms are sufficiently certain to enable the court to order their performance.
2 the applicant must himself be able and willing to perform his obligations under the contract.
Civil MCT
flashcards
Decks in class (14)
# Cards
-
Civil Court Orders and Time Limits112
-
Miscellaneous Samples209
-
Limitation Periods in Civil Law34
-
Costs and access to the courts14
-
Service, Appearance and Defence72
-
Personal Injuries66
-
Summary procedure52
-
Injunctions12
-
Privilege, Discovery, Interrogatories, Inspection53
-
Security for Costs28
-
Enforcement57
-
Trial and Appeal48
-
Family Law200
-
Conveyancing110
