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Lrc Cp 34 – 2004) CONSULTATION PAPER ON REFORM AND MODERNISATION OF LAND LAW AND CONVEYANCING LAW (LRC CP 34 – 2004) IRELAND The Law Reform Commission 35-39 Shelbourne Road, Ballsbridge, Dublin 4 © Copyright The Law Reform Commission First Published October 2004 ISSN 1393-3140 ii THE LAW REFORM COMMISSION Background The Law Reform Commission is an independent statutory body whose main aim is to keep the law under review and make practical proposals for its reform. It was established on 20 October 1975 pursuant to section 3 of the Law Reform Commission Act 1975. The Commission’s Second Programme for Law Reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas in December 2000. The Commission also works on matters which are referred to it on occasion by the Office of the Attorney General under the terms of the Act. To date, the Commission has published seventy Reports containing proposals for the reform of the law; eleven Working Papers; thirty three Consultation Papers; a number of specialised papers for limited circulation; An Examination of the Law of Bail; and twenty five (Annual) Reports in accordance with section 6 of the 1975 Act. A full list of its publications relating to land law and conveyancing law is contained in Appendix B to this Consultation Paper. A full list of Law Reform Commission publications is contained in Appendix C. Membership The Law Reform Commission consists of a President, one full time Commissioner and three part-time Commissioners. The Commissioners at present are: President: The Hon Mr Justice Declan Budd High Court Full-Time Commissioner: Patricia T Rickard-Clarke Solicitor Part-Time Commissioner: Dr Hilary A.Delany, Barrister-at-Law Senior Lecturer in Law, Head of Law School, Trinity College Dublin iii Part-Time Commissioner: Professor Finbarr McAuley Jean Monnet Professor of European Criminal Justice University College Dublin Part-Time Commissioner: Marian Shanley Solicitor Secretary: John Quirke Research Staff Director of Research: Raymond Byrne BCL, LLM Barrister-at-Law Legal Researchers: Deirdre Ahern LLB, LLM (Cantab), Solicitor Alan Brady LLB, LLM (Lond), Attorney-at-Law (New York) Ronan Flanagan LLB, LLM (Cantab) Roberta Guiry BCL Orla Joyce BCL, LLM (Cantab) Sinéad Ring BCL (Law & German) Mary Townsend BCL, LLM (NUI) Aisling Wall BCL, LLM (Cantab) Administration Staff Project Manager: Pearse Rayel Legal Information Manager: Marina Greer BA, H Dip LIS Temporary Legal Information Manager: Conor Kennedy BA, H Dip LIS iv Cataloguer: Eithne Boland, BA (Hons), H Dip Ed, H Dip LIS Executive Officer: Denis McKenna Private Secretary to the President: Liam Dargan Clerical Officers: Alan Bonny Debbie Murray Principal Legal Researcher on the Consultation Paper Professor J.C.W. Wylie LLM (Harvard), LLD (Belfast), Professor of Law at Cardiff University Other Legal Researchers involved with this Consultation Paper Mark O’Riordan, BCL, LLM (NUI), Barrister-at-Law Trevor Redmond LLB, MPhil, LLM Cantab), Barrister-at-Law Mary Townsend BCL, LLM (NUI) v Contact Details: Further information can be obtained from: The Secretary, The Law Reform Commission, 35-39 Shelbourne Road, Ballsbridge, Dublin 4. Telephone (01) 637 7600 Fax No (01) 637 7601 Email [email protected] Website www.lawreform.ie vi THE PROJECT In late 2003 the Department of Justice, Equality and Law Reform and the Law Reform Commission established a joint project for the major reform and modernisation of land law and conveyancing law. This was seen as part of a larger programme of reform in this area of law that was already being undertaken by the Commission. The ultimate goal of that programme is the introduction of an e-conveyancing system similar to those being developed in other jurisdictions. The need to develop a system suitable to this jurisdiction means that the larger programme will take some years to develop. In the meantime, it was regarded as important to modernise the substantive law which underpins the conveyancing system. This concerns in particular the huge range of pre-1922 statutes which relate to land law and conveyancing law and remain as part of the legislation in force in the State. It was envisaged that the project would involve three phases. The first phase would involve a screening of the pre-1922 statutes with a view to identifying those which can be repealed without replacement, as being obsolete or otherwise inappropriate in 21st century conditions. This phase would also identify those statutes, or parts of statutes, which remain of relevance to modern conditions, and would involve identification of what amendments would be required in order to ensure that they achieve their purposes as effectively as possible in modern conditions. It would also involve a review of the general law with regard to its need for reform. The second phase would consist of a consultation process initiated by the publication of a Consultation Paper. The third phase would involve the drafting of a Bill (or Bills) to give effect to the conclusions reached at the end of the second phase. In February 2004 the Department appointed Professor J.C.W. Wylie the Legal Researcher responsible for carrying out the first phase of the project. Professor Wylie also chairs the Commission’s Substantive Law Working Group, which is part of the e- Conveyancing Project. This Group, together with a representative of the Department, has provided advice and assistance in the carrying out of the first phase. Its members are: vii The Hon Mr Justice Declan Budd, President of the Law Reform Commission Commissioner Patricia T Rickard-Clarke Commissioner Marian Shanley Seamus S. Carroll, Department of Justice, Equality and Law Reform Vivienne Bradley, Solicitor Dr John Breslin, Barrister-at-Law Patrick Fagan, Solicitor Chris Hogan, Former Senior Deputy Registrar at the Land Registry Caroline Kelly, Barrister-at-Law Deirdre Morris, Solicitor Marjorie Murphy, Solicitor Doreen Shivnen, Barrister-at-Law Trevor Redmond, one of the Commission’s legal researchers, was Secretary to the Group during most of the period leading to preparation of this Consultation Paper. His successor in this role is Mary Townsend, who assisted in the preparation of this Paper for publication. On 29 June 2004 the Minister for Justice, Equality and Law Reform, Mr Michael McDowell TD, made a public announcement relating to the Joint Project. He stated that it was intended that it would: ● Simplify the law and improve its presentation, in order to make it easily understood and accessible for practitioners and the public alike ● Update the law to accommodate changing social, demographic and economic needs, eg, new forms of property ownership ● Make the conveyancing of property easier and faster with a view to reducing costs and delays. The Minister drew attention to the three phases of the Joint Project referred to earlier and stated that the first stage would be completed by the publication by the Law Reform Commission of a Consultation Paper in October 2004. This is that Consultation Paper. He stated that the second phase would culminate in a Conference to be held on viii 25 November 2004. This would study the reform proposals made in the Consultation Paper as well as the ongoing modernisation of the Land Registry and preparations for e-conveyancing. The Minister also stated that it was the intention that the draft Bill (or Bills) to give effect to the reform proposals would be available as early as August 2005. Finally the Minister stated that reform of the law in this area would represent a major contribution to the Government’s Programme of Regulatory Reform, as outlined in the 2004 White Paper Regulating Better. ix TABLE OF CONTENTS INTRODUCTION.......................................................................................................1 A Scope of the Project...........................................................................................1 B Pre-1922 Statutes...............................................................................................2 C Guiding Principles .............................................................................................3 D Land Law and Conveyancing Law....................................................................4 E Outline of this Consultation Paper ....................................................................6 F The Consultation Process ..................................................................................7 CHAPTER 1 HISTORICAL BACKGROUND ...............................................9 A The Feudal System ............................................................................................9 (1) The Concepts of Tenure and Estates.........................................................9 (2) The Concept of “Freehold” .....................................................................11 (3) Subinfeudation.........................................................................................12 (4) Copyhold..................................................................................................13 (5) Crown Land .............................................................................................15 B Leasehold Tenure ............................................................................................15 (1) Confusion of Freehold and Leasehold ....................................................16 (2) Landlords’ Rights ....................................................................................20
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