Wide-ranging recommended changes to Land Law

By Órla Gillen, Monday, 24th March 2003 | 0 comments
Filed under: 2003.



Law Reform Commission Recommends Wide-ranging Changes to Land Law

On 24 March 2003, the Law Reform Commission launches four publications on property law. Three of the publications are Reports making final recommendations following a lengthy consultation process. The other publication is a Consultation Paper which makes provisional recommendations for reform   and invites  submissions  on  the  provisional   recommendations. The Three Reports are concerned with distinct areas of land law and conveyancing  and undertake a review of the legal issues involved and make proposals for reform, including recommendations for draft legislation. The Consultation Paper on landlord and tenant law provisionally recommends the overhaul of the law relating to commercial landlord and tenant agreements and invites submissions on the preliminary proposals from interested parties. The four publications are:

1. Consultation Paper on Business Tenancies

The Consultation Paper on Business Tenancies examines elementary issues surrounding commercial landlord and tenant law and proposes an overhaul in that area. This will complement the planned domestic tenancy measures, proposed by the Commission on the Private Rented Residential Sector in July 2000, which are currently being devised by the Department of the Environment and Local Government. The current law relating to business landlord and tenant agreements does not accord with modern commercial life. It is overly protective and restrictive on commercial freedom  The overall aim of the Consultation Paper is to propose a legislative scheme which draws a fair balance between   the interests of landlords and tenants. Statutory protection should be confined to situations where  there is an obvious need for control such as where there is a substantial risk that one party might take unfair advantage of the other - large international commercial organisations do not need an all embracing statutory scheme as they are presently bound by, but require freedom to enter into whatever agreements they wish. If a tenant wishes to enter into an agreement which provides for no renewal of the lease, perhaps because the deal is otherwise advantageous, he should be free to do so and subsequently held to his commitment. Certain opportunities do exist for 'contracting-out' of the legislative scheme at present (eg Custom House Docks  area;  and office leases under the Landlord and Tenant (Amendment) Act 1994) but these provisions are limited and are not vailable to all commercial tenants. The Commission, therefore, provisionally recommends the removal of legislative provisions which militate against commercial practice and the operation of free market choice; the recasting of legislative provisions which create uncertainties or have proved ambiguous; introducing new legislation to meet gaps in existing law; and the consolidation of the legislation in order to make the law much more  accessible and easily understood.

The Consultation Paper is intended to form the basis for discussion, and its recommendations are provisional only. The Commission will make its final recommendations in a Report which will be prepared following consideration of the issues and consultation with interested parties. To that end, those who wish to make submissions are requested to do so in writing to the Commission by 30 June 2003.

2. Report on Title by Adverse Possession of Land

This Report looks at a arrowly focussed, historically deep-rooted problem in relation to the type of title acquired b a squatter to lands when that squatter has fulfilled the requisite period of adverse possession in respect of another's land. Ownership of land can be acquired after a period of squatting (usually 12 years), however, the exact type of title acquired is in need of clarification. In particular, the title may be so problematic that it cannot be sold on - the result may be that there will be no-one who will think it worthwhile building or otherwise investing in this piece of land. This issue is particularly important where the squatter is in occupation of leasehold land, as the actual  position  of the squatter vis-a-vis  the landlord  of the property has neve been clear. The Report provides a solution to this problem by recommending that the squatter should obtain a transfer of  the  same  interest  as  the  dispossessed owner/occupier had. This type of transfer is known as a 'parliamentary conveyance.'

3. Report on the Acquisition of Easements and Profits a Prendre by Prescription

This Report concentrates on the prescriptive acquisition of easements and profits a prendre.  An easement is a right exercisable by one landowner over the property of another landowner e.g. a right of way.  A profit a prendre is a right exercisable by a person for his or her own benefit over the land of  another to take and keep anything derived therefrom - e.g. a right to cut turf or to hunt. Prescription is one method of acquisition of such rights and amounts to legal recognition of such rights due to the length of time the uninterrupted right has been exercised.  The Report recommends a long-overdue reform of' the rules relating  to the prescriptive acquisition of such rights.  Contained in the Report's  recommendations  is the repeal  of the current law  and  its replacement  with new  legislation  (annexed to the  Report).  The draft legislation proposes a simplified and unified method of acquisition of easements and profits a prendre.

4. Report on Land Law and Conveyancing: (7) Positive Covenants over Freehold Land and Other Proposals

This Report is concerned with six distinct areas of land law and conveyancing law which are in need of reform. First, the Commission examines the issue of covenants (promises) over freehold land. Owners of freehold land often wish to enter into covenants relating to adjoining land, eg where the owner of a piece of land sells off part of that land he or she may be concerned about the future use of the portion sold. A solution to this is to enter into a covenant with the purchaser of the sold-off portion. However, problems arise as to the validity and enforceability of such covenants on subsequent owners of the affected lands. The Commission provides a solution to these problems by recommending draft legislation to deal with the enforceability  of  freehold  covenants  by  and  against  subsequent  owners. Secondly, the Report  deals with  a technical  issue relating to succession law and the definition of "purchaser" in the Succession Act 1965. Thirdly  the  Commission deals with the  situation where two or more persons who hold land as joint tenants die in circumstances whereby it is impossible to say which of them survived the other. Usually when two or more people  hold  land as joint tenants, the interest of the deceased joint tenant automatically passes to the  surviving joint tenant.  The Commission proposes  a change in  the law to say that where two or more joint tenants die in circumstances whereby it is impossible to say who survived the other, the interest in the land will separate on death and each joint tenant's 'share' will pass to their respective next-of-kin. Fourthly, the Commission proposes draft legislation to deal with a technical land registration issue. Fifthly, the Commission examines the issue of a joint tenant of lands unilaterally severing the joint tenancy. Agreement between the parties is needed to enter into a joint tenancy and certain conclusions flow from land being so held.  The Commission, therefore, recommends that agreement should also be required for one joint tenant to sever the joint tenancy and thereby change the legal nature of the holding. Finally, the Commission recommends the amendment of the Succession Act 1965 and the Statute of Limitations 1957 to provide uniform periods of limitation regarding claims involving a deceased's estate.