Freehold Estates

Introduction
Every piece of land in this state has an ownership that is capable of
being rationalised and fitted into the ownership model that we have
and the basic model is that there is a freehold. All land in the state
is effectively capable of being rationalised as freehold land.
Ive explained to you where the term freehold comes from: it was
the tenure, the basis of ownership, of a person who was personally
free in feudal society and therefore they had rights capable of being
enforced in the Kings courts. Thats it in a nutshell. The Kings
courts were not available to persons who were unfree. While the
term grew out of that, it ceased to be relevant very early on
because firstly, there are no longer any unfree people in society
people cannot be chattels and secondly, freehold began to be
used as a term to differentiate freehold ownership from leasehold
ownership, which was the next development soon after the decline
of feudal tenure. So very quickly we became the beneficiaries of a
system of land ownership that differentiated between two classes of
ownership freehold and leasehold.
The law of estates measures duration. Because thats really the
issue in relation to how you assess somebodys rights of ownership
in land. Were not talking about lesser rights such as rights of way
and so on. Here, what were really concerned with is trying to
understand how you have the land for a certain period of time, or an
uncertain period of time. So when youre trying to study this stuff,
its always best just to have a piece of paper beside you and to just
do it in a diagram. Because the only thing youre really worried
about is time. Ownership of land is about dividing up the time. Its
about how long or short your rights will be. So estates is about
quantity, not of land itself, but of time in ownership of land.
Fee Simple
The largest freehold estate known to the common law is called a fee
simple. Fee means forever. A lease can have a definite finish date,
its fixed. But a freehold is going on into the future. And the reason
why its called simple is because, when the common law was
devising this, it conceptualised the notion of rights continuing into
the future by recognising the idea of inheritability. This was
something that was big news in the early days. It took until the 12th
century until the common law really got to grips with this idea,
because in the early days of the common law, when there was
feudal tenure, when someone was given land within the feudal
system, you were establishing a social, economic, even political
relationship with this person. You are king. You regard Sir Cuthbert
as perfectly trustworthy and loyal subject he took an arrow for you

in France. So hes getting this piece of land, Shropshire. And Sir

Cuthbert holds Shropshire, he enjoys it, he goes around the place
pillaging. Thats how you control Shropshire. Youve given it to Sir
Cuthbert, and what he will do is farm it out to his own subjects. Hes
become a lord in his own right and theyd become his tenants. And
tenants simply meant holding land. But the only person you as king
were originally giving the land to was Sir Cuthbert, not his wastrel,
lazy, cowardly son Egbert. Egbert was a malingerer and you did not
want him on the land at all. So it was very clear that when Sir
Cuthbert died, the land went back to you. So what Sir Cuthbert had
was a life estate. Thats how you rationalise it today. An estate for
his life, and when he died the land is back in play. As well see the
next day, the big news in the 12th century was when the common
law began to recognise the idea that Sir Cuthbert could leave the
land, not by will because the common law didnt allow wills for a
long time, but if he died his heir could take the land. And the
common law allowed that as long as the heir paid a charge. It was
called a relief and if you paid it, you could inherit. Now that was the
magic moment when a fee simple was born. It was a fee because
the rights could go on forever. The rights could go on because it was
possible for Sir Cuthbert and his heir and the heir after that and the
heir after and so on to inherit, stretching out into infinity. And it was
called simple because there was no restriction on who could be an
heir. The class of heirs was unqualified. And so the thing that gave
us the fee simple estate is the concept of inheritability. In other
words youre getting more than the ownership of the land for your
life, youre getting a piece of time. And its not a finite piece of time,
its not a lease for 10,000 years. It is something that is capable of
going on forever. And that is the largest estate.
The fee simple is the largest freehold estate but wasnt the first
freehold estate. The first was in fact the smallest the life estate.
Now, life estates can still exist, but it has to be said theyre a
creature of a bygone era. When we talk about land ownership today
people are not interested in small interests that will last only for
their life. Its one thing if you go out to rent a place for a few years,
but when youre talking about freehold ownership, the conception
that people in modern times have is that youre going to own it, you
can sell it and you can leave it by will. The problem we have is, the
system did not involve a group of lawyers sitting down around a
table and saying we have to come up with a rational system of
ownership that is going to stand the test of time for 1000 years.
Instead you had the system of doling land out based on feudal
considerations. And in the feudal model, the idea was, the person
who was getting the land from you and that person alone was to be
the landholder. Because, the land they held was part of an
arrangement to guarantee their loyalty so that if you needed to run
a particular part of the country you could turn to them and they
would do what you said because they were your man. It was a

means of social and political control.

The feudal system was almost doomed to fail from the beginning in
terms of it being a system of land ownership because it wasnt
about land as a commodity, as we saw with the evolution of the
lease. The lease was a much more modern idea because it
recognised that the key thing here was not the parties the idea
that one person is beholden to another but the land: you give me
the land and Ill give you rent. And thats all we have to do, we dont
have to kiss up and like each other. The feudal system began to
break apart because it couldnt contemplate land as a commodity.
But in the early days before there was a full decline of the feudal
system, the tension was there already: the idea that people were
not happy about somebody dying and their heir being left with
nothing. And this was recognised gradually, it was a very slow
process of evolution. Initially, the heir had to buy the land back.
They had to pay the lord above them in the feudal pyramid for the
land. This price that you had to pay in order to get the land granted
to you again was called a relief, and it was the capital price; it was
the price that you paid in order to step into the shoes of your
ancestors to do the thing that an heir does. But people began to
complain, well look, my father bought the land, and now I have to
buy it. And already youve got the idea of land as a commodity. And
in 1176, a major development occurred. In the Assize of
Northampton it was decreed by the king that the reliefs no longer
had to be the capital values of land. Instead it would be a charge, a
lesser sum, like a levy. So the heir would just pay the levy, but didnt
have to buy the land back. That doesnt seem important today, but
it was the moment inheritability was born. Thats the moment you
ended up with a right of property belonging to a freeholder that
could last longer than the life of the initial holder. Thats the magic
moment the fee simple was born and interest with the potential to
go on forever. Now, the system was still flawed in the sense that
someone might die without an heir, as often happened. So this
interest still had the potential to fail, and the land go back to the
lord. But the potential to have it go on forever is enough to call it a
fee simple.
1176 was a big date; that was the date inheritability was born. The
next big date, really, was 1290. A statute was passed then called
Quia Emptores. For modern purposes, the significance of the statute
Quia Emptores (which by the way was still law until the 2009 Act)
was that it did something that had to be done in order to give us the
fee simple that we have today. While the ability to inherit was there,
there was still a problem because of feudal considerations. In the
feudal system the person who was the feudal tenant could have a
desire to sell up in order to move away, and equally you could find a
person eager to buy the land, someone who wanted to be the feudal
tenant (notice here again how the concept of land as a commodity is

pushing through). But a third party had a say over this and that was
the feudal lord. He says I dont like the look of this new guy at all,
look at him, hes a weakling. I dont believe hell be able to pay the
service for this land and I dont want him. And the feudal system
backed the lord up, because the feudal system was based on a
personal relationship between tenant and lord. And so the lord had a
veto in relation to whether somebody else could step into the shoes
of the tenant. So that was a bar to what we call alienability.
Alienation is something that you do while youre still alive. What
youre trying to do is put someone different on the land and the
lords didnt like that. People found various ways of getting around it
and eventually, in 1290, it was decided that the thing would just
have to be brought to an end. And what was created was called at
the time freedom of substitution, which meant that the lord had no
veto. If you wanted to sell the land, somebody else paid you and
stepped into your shoes. The land really is a commodity now. So
again, its chipping away at feudal considerations.
So in 1290, freedom of substitution came about. And Quia Emptores
stayed the law until 2009. But since its enactment, it translated into
a modern concept. And that modern concept is the principle that a
fee simple estate is inherently freely alienable. You can sell it, you
can give it away, and theres nothing that can be done vis--vis the
creation of that interest that can interfere with this fundamental
aspect of a fee simple estate. Freedom of alienation is at the heart
of land as a commodity. Quia Emptores was repealed and replaced
in this respect by s 9(4) of the LCLRA 2009, referred to on the
handout. But the same point remains, the fee simple estate is
inherently alienable. Remember, Quia Emptores was a statute, the
2009 Act was a statute, and so obviously a principle laid down by
statute like freedom from alienation can have exceptions. And there
are such exceptions. One of the most obvious, and it applies
throughout the country to many properties, is the Family Home
Protection Act 1976. It was passed at a time when women were in a
very unequal position when it came to ownership of the family
home, in the sense that you still had quite a wide incidence of
women giving up work when they got married in order to have a
family. And in fact this was mandated in certain institutions such as
certain banks and the civil service where there was a marriage bar.
And it didnt say you cant get married, rather it said if you get
married, youre out of here, meaning you a woman. The idea was
sure why would you need a job, sure havent you got a husband?
Go home to your husband; go produce for Erin. This is incredibly
offensive, but it fed into the way land was owned because, as the
wife wasnt earning, it led financial institutions to have an equally
narrow-minded view. They would put the mortgage only in the name
of the husband. So you ended up with the only name on the title
deeds, or the register, was the name of the husband. The wife didnt
get a look it. And thats okay so long as everyone gets on well. But

when things start to go bad youd find that the husband might start
behaving badly and, possibly, one of the evils that this legislation
was directed at was the husband either selling the house out from
under his family and disappearing or mortgaging it up to the hilt and
disappearing with the money. So in 1976 the legislature looked at
this in a relatively modern and revolutionary piece of legislation and
said well, that may be the way land ownership is divided up, theres
nothing much we can do about it now, but what we will do is well
give the non-disposing spouse a statutory veto. In other words, her
consent to the transaction is still required even though her name
wasnt on the mortgage or title deeds. The courts have the power to
dispense with the need for consent if someone is acting
unreasonably, but that legislation applies today. If youre buying a
house, one of the things you have to check out with the vendor is
whether the property is a family home. If it is then you need the
non-disposing spouses consent. If the deed is executed without that
consent, the conveyance is void. So whats the point of that 5
minute excursion back in time? Well, there is a classic example of
where the legislature steps in and says yes, we know fee simples
are freely alienable, but we can qualify that. So the ability to
alienate a fee simple can be eroded or compromised; the legislature
always has the power to qualify your right to alienate. There are
other mechanisms that qualify it as well, for example, theres
provisions in the 2009 Act and in the NAMA legislation for dealing
with people who try to dispose of their assets to their wives for the
purposes of avoiding their creditors.
The first thing that happened on the road to the fee simple that we
have today was inheritability the land passing to the heir. The next
thing was freedom of alienation the right to sell to another person
while youre alive. The next thing that happened was the ability to
leave land by will. And funnily enough, this was the last thing to
materialise. When youre talking about inheritability, which was
effectively recognised in 1176, that was to have land pass on
intestacy. But the common law for a long time didnt respect wills of
land. The view was that the person who gets your land when you die
is your heir. It didnt take that view in respect of personal property,
but real property had to pass to your heir, and you couldnt avoid it
by making a will to divide it between your children. You would have
to explore other ways of getting around the problem by say creating
a trust. The last thing to happen was eventually the legislature said,
in Statute of Wills 1540 in England and the Statute of Wills (Ireland)
1634 in Ireland, that it was going to be possible to leave land by will.
And if you look in some of the older cases youll see this referred to
as divisibility; a gift of land or real property in a will is called a
divide. Now these are old terms, which people dont really use these
days, but which you will see in the older cases.
So it became possible to leave land by will, and it depended on how

the land was held. With certain types of freehold tenure you could
leave all, with other types you could only leave 2/3 by will and the
remaining 1/3 has to pass under the rules of intestacy. But
eventually the Statute of Wills 1837 just went whole hog and said
land is now devisable by will. And that was a freedom that people
in this jurisdiction enjoyed up until the Succession Act 1965. So we
got to the stage where we had inheritability, alienability, and then
devisability. And then in 1965, the law relating to succession was
revolutionised by the Succession Act 1965. The Succession Act did a
number of things, some of which weve already encountered. For
example, it did away with different rules as regards whether
somebody who died intestate holding real property or personal
property. So, prima facie, you could make a will of your land and
leave it to whoever you liked, except if you were married or had
children. There the law introduced interference with freedom of
testation. Freedom of testation means the right to make a
testamentary disposition. Remember the old phrase this is my last
will and testament. A testamentary disposition is a disposition
made in anticipation of death that will operate on death. There had
been this complete freedom of alienation from the 19th century,
from the Statute of Wills Act, up until the 1965 Act. But again, just
as with the Family Home Protection Act 1976, when they were
passing the Succession Act they said there have to be certain
controls on freedom of testation. Why? Well there was evidence
that freedom of testation was being abused. Its hard to believe this,
but sometimes people would leave their family nothing. Sometimes
it would just be sheer nastiness somebody would be on their
deathbed and theyd just want to get one last spiteful act out of
their spleen and so theyd call the solicitor in and say I hate you all;
Im leaving all my property to the golf club. Even though they might
be leaving maybe minor children and a wife who isnt working with
nothing. Sometimes it wasnt nastiness, sometimes it was fear.
Youre on your deathbed and you realise that you havent been that
good during your life and you start convincing yourself that you can
smell the sulfur, because you think there is a big fella with a pointy
fork waiting for you. So you say Im going to have to do something
good I know, Ill leave all my property to the church. And of
course the church never had any difficulty accepting, even though
there was a dispossessed family there saying well what are we
going to do, father? Pray!.
And then sometimes there was this absurd mindset that women
couldnt farm. And the farmer testator has no male children. And the
farmer would take the view that women cant run farms. Tell me
there Bridie, when did you ever pull a cow out of a ditch?. So hed
leave it to his nearest male relative, Paddy up the road, whos
rubbing his hands together. And the testator would say well you
know Bridie, in fairness youve been a decent wife, so as a reward
for all your years of service, Im going to give you a right of

residence in your own home. You have the use of a bedroom and
the use of a drawing room and Paddy there has to give you a bucket
of potatoes and a bucket of turf every week. That is called a right of
residence, and these creatures exist in our law youll find them
specifically referred to sections 69 and 81 of the Registration of Title
Act 1964. These things were commonplace. And when used in
respect of spouses, it could lead to a very difficult situation where
you ended up being a stranger in your own home.
So the purpose of that excursion is to lead up to the point where the
Succession Act 1965 basically said no, in a situation like that, there
cant be complete freedom of testation. There are two core
provisions s 111 and s 117 which we will be looking at later on.
Section 111 deals with the rights of surviving spouses and s 117
deals with the rights of children. The difference is s 111 gives you,
as a spouse, a legal right to a specific share, while children dont
have an automatic right to a share, they have to go to court. Again,
these provisions represent a compromise in relation to the freedom
that underwrites the fee simple.
So these are the milestones on the road that gave us the fee simple,
the largest estate in land. It is the closest thing to being absolute
owner. You cant say that youre absolute owner because our system
rationalises land ownership in terms of estates. You dont own the
land, you own an estate in land. Today, that doesnt have huge
practical significance; if you own the largest estate youre practically
the absolute owner. Of course youre rights are less than absolute
because theyre controlled by the Family Home Protection Act 1976,
theyre controlled by the Succession Act 1965, theyre controlled by
planning legislation, the law of nuisance, etc. You cant do what you
like with your land.
But in the old days there was a further aspect to rationalising your
ownership as an estate: your estate could end under the feudal
system. If you died without having made a will and without having
an heir to succeed you, your estate could end because thered be
nobody to take it after you die. What would would happen there was
the peculiar old feudal notion called escheat. This meant that the
land would go back up to the feudal lord or his successors. Likewise,
your estate could end if you committed treason. If you committed
treason, your estate was forfeit all the way up to the crown. So there
was a reason for rationalising land ownership as an estate as
opposed to absolute ownership.
Feudal tenure is now officially gone. But although it declined as a
way of people consciously organising land and land ownership
although it died effectively it didnt disappear as a legal construct
until the 2009 Act. Theoretically, it was possible that there was
people out in Ireland three years ago who were still feudal lords.

They probably didnt know it because their ancestors had long since
forgotten it and stopped collecting services. The Succession Act
1965 had to abolish escheat in the 20th century because there
was all this feudal stuff still kicking around. In terms of the state, the
state no longer takes land by way of forfeiture in the event of
treason, but you can still see the evidence of the feudal system
working now a ghost of the feudal system in the event of a
person dying without having made a will and without leaving an
heir. In the old days that would have been an escheat of some kind.
The way such a scenario is dealt with today is that the state steps in
under s 73 of the Succession Act 1965 as ultimate intestate
successor. Thats the modern form of escheat operating. Because
under the feudal system, all land was notionally held under the
crown, and when the crown disappeared when we got
independence, the state stepped in.
In a number of old cases people tried to give something a fee
simple estate or leave a fee simple estate, but control what can
happen with the land. A good example of that was a case called Re
Brown. In that case land was left to brothers, and it was provided
that any brother who wanted to sell could only sell to the other
brother. So the land had been left in fee simple, but the ability to
alienate, the ability to sell, had effectively been almost entirely
compromised, because he could only sell to another brother whod
say yeah, Ill give ya a fiver for it. And he had to take it or leave it
because he had no other option. And to make matters worse, the
pool of potential purchasers diminishes as brothers sell up. It was
held that that restriction was invalid because it was repugnant to
the essential nature of a fee simple. Its inconsistent with what it is.
You cant give somebody a fee simple and then compromise the
ability to deal with the land because the ability to deal with the land,
the ability to alienate, is part of what a fee simple is.
Re Brown is sometimes contrasted with an earlier case, a decision of
Sir George Jessel, called Re Rosher. In that case there was a clause
in a will that said you couldnt sell out of the family. That was held to
be permissible because it was held that the family was an
expanding class: as generations passed, there would be more and
more people to sell to.
In a relatively recent Irish case, Re Dunne, the gift basically said
you can sell to anybody, except members of the Merdith family of
OMoores Forest Mountmellick. The court was asked to give
directions in relation to this and OHanlon J said that this fetter on
alienation, although it was relatively narrow in practice and left the
power to alienate substantially intact, was contrary to public policy
because it encouraged people in succeeding generations to persist
in some nastiness that had fueled and inspired this particular
restriction. And the class of potentially purchasers was cast

completely open.
Types of Fee Simple
This is an odd part of this topic because if you approach the 2009
Act with any kind of prior knowledge of what the law was like
beforehand, you can certainly see the indications of older forms of
landholding. The 2009 Act was revolutionary, the 2009 Act was
really needed, because our system of law had become top-heavy
with stuff that wasnt required in the 21st century. You could say, in
the 21st century the only type of fee simple that you really need is
the basic bog-standard model: you get the fee simple in the land,
its your land effectively (subject to the controls that the general law
imposes on you), you can sell it to whoever you like (subject to the
Family Home Protection Act), you can leave it to whoever you like
(subject to the Succession Act). Thats really all you need.
The fee simple absolute satisfies the needs of consumers for the
most part, and indeed its difficult to conceive of why youd need
anything else. But there are other forms of fee simple modified
fees. When you talk about modified fees, the fee there is short for
fee simple its a modified fee simple. The fee simple in old
conveyancing parlance was sometimes just called the fee for short.
So youd say somebody owned land in fee. But the concept of a
modified fee simple was recognised from very early on. The thing
thats odd about a modified fee is, for a start, the sort of thing that
its trying to achieve is a bit antiquated, but apart from that, the
way in which its done, the way in which it turns on highly technical
language, is also quite outmoded. For the most part, in the 21st
century, what youre really interested in is an efficient, rational way
of dealing with the disposition of land, and the idea that youd have
to still use particular, peculiar, rather quaint phrases is completely
inconsistent with the spirit of the 2009 Act and indeed, inconsistent
with the spirit of legislation going back as far as the Conveyancing
Act 1881.
What youve got with these modified fees is a way of creating a fee
simple that you are programming in a particular way. Youre preprogramming this fee simple that it has the potential to end. Now
thats terribly important because it explains again why we have to
keep rationalising ownership in terms of estates rights being a
portion of time. Because if you understand that, youll understand
whats going on with these modified fees. Modified fees are ways of
setting down certain rules, now, that could lead to the end of the fee
simple. What happens there is that the fee simple will stop. Even
though it is something that is large, it is something that is valuable,
it is something that could potentially continue into the future, what
youre doing is youre saying aah, but if something happens, I want
it to stop. And what happens if you make it stop? Well the land has

to go somewhere and it goes to the person who created the fee

simple, who is in the background. Their rights are still in the
background. They have a right that can kick back in. Imagine it as
an aircraft. The modified fee simple is flying along, but at a slightly
higher altitude on the same flight plan there is another interest. Now
that interest isnt interfering with it in any way, and it was passed
through the hands of people over the centuries. And if the modified
fee comes to an end, the other interest stops being a hidden dotted
line and is restored as a fee simple, taking over.
If you look at the words that are used to create these things, youll
see almost immediately that youre dealing with another time,
another way of dealing with land. First of all youve got a
determinable fee. And the thing about a determinable fee is, on the
happening of the determinable event, the determinable fee simple,
as the name suggests, determines automatically. The right that the
person in the background has, the creator, is called a possibility of
reverter. And the name says it all the possibility that the land will
revert. And the trick to creating one of these things is to use
standard, pre-determined words like while, during, until, as long
as, till, which recognised by the courts in this context. To John
Smith in fee simple as long as he remains a solicitor. If John Smith
has turned up and he is paying 500,000 for this property, there is
no way he is going to allow anyone to put this nonsense in the deed.
Why? Because the bank are going to say if this John Smith defaults,
we want to be able to sell the thing. And if weve got this title, a
perspective purchasers solicitor is going to say, you want us to pay
big money for this interest, which could drop and disappear at any
time when he stops being a solicitor? We pay you and say a few
decades of the rosary that he doesnt get struck off. Of course
nobody would buy it. So weve already seen how antiquated this is.
These arent things that you do when youre selling land because
nobody would tolerate it. Theyll say no stop messing, I dont care
how interesting you found this when you were doing land law 30
years ago, im not having it, I want my fee simple absolute and
nothing else.
So these kinds of grants belong to another time, and that was when
people disposed of land to fellow members of the same family, and
they put in little things to make sure people behaved themselves or
to achieve little things that they liked. For example, you often saw a
man who was a solicitor his entire life and he wanted to ensure that
his eldest son became a solicitor as well. And so youd create this
absurd incentive.
The next modified fee is a fee simple upon a condition (conditional
fee). The first thing to notice is that there are a different set of
words required to create this type of fee: provided that, on
condition that, but if, if it happens that. The magic here is, with a

conditional fee, the estate doesnt end automatically on the

happening of the event. The person in the background has whats
called a right of entry for a condition broken. They have to assert
that right and put you out before your estate ends. If they dont do
it, the estate will continue on. To John Smith in fee simple on
condition that he remain a solicitor. Youre scratching your head
saying well whats the difference?. The difference stems from the
common law obsession with different words. Different words,
although they refer to exactly the same contingency, give rise to a
different type of interest with a slightly different set of incidents. The
difference here is its a conditional fee with a right of entry for
condition broken, so that the estate doesnt come to an end
automatically.
These modified fees are still possible. The 2009 Act didnt do away
with them even though they seem quite antiquated.
Fee Farm Grants
Ban on Creation: LCLRA 2009, s 12(1) (will result in fee simple 12(2))
Survival of pre-existing fee farm grants: LCLRA 2009 s 12(5), (6)
----------------------------------------------------------------------------------------------------------------------missed recording
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Youll see a brief reference to a fourth class of fee farm grants

rentcharges. A rentcharge is a perpetual rent payable out of land by
the fee simple owner. What you have where a rent charge exists is
this: somebody owns the fee simple in the land, they have to pay a
perpetual rent to a person whos entitled to receive it. You
sometimes see these being called annuities, because annuities
means annual payment. The only peculiar thing about rentcharges
is that on a conceptual level, it didnt involve any relationship of
tenure. In other words, the person paying the rentcharge is not a
tenant of another person. With feudal fee farm grants you had the
feudal lord and the tenant, with leasehold fee farm grants you had
the landlord and the tenant, each of them with fee simple estates in
respect of their respective interests. But rentcharges didnt involve a
relationship of tenure; they didnt mean that you were holding the
land from someone else, it meant simply that you were obliged to
pay somebody else. That sounds like a fairly fine distinction and
luckily you wont have to be too troubled by it. This class of rent
charge was relatively rare in Ireland. The most common fee farm

grant was the leasehold fee farm grant. But in any event, this type
of interest is banned from now on by the 2009 Act.
Other Hybrid Interests Apart from Fee Farm Grants
LCLRA 2009, s 12
These were interests that were created in Ireland with the specific
purpose of combining leasehold and freehold interests. Its
something that they werent so caught up with in England. It was
done for mainly political interests in Ireland. You wanted somebody
to be a tenant, you wanted somebody to be beholden to you, but
you wanted to give them a freehold estate of some kind. And so
theres the lease for lives renewable forever. Theres also a lease for
life or lives without any renewability. So in other words, you lease
the land to someone for the lives of A, B and C. Those types of
freehold estates are banned now, you cant lease land for that
purpose. There was also what was called a lease for lives combined
with a term of years. This was simply designed to give somebody a
measure of comfort because the didnt have a renewable interest.
So in other words, with a lease for lives, it would be a lease for the
lives of A, B and C. When the last life falls, thats when your estate
ends. And people were concerned about this. Theyd say Im taking
this interest so that I can farm the land. Im paying you rent and I
dont want to be in a situation where if a flu epidemic passes
through the county and A, B and C drop dead in quick succession,
Ill have no interest in the land. So what people did was they
combined with a term of years, 35 years for example. There was an
advantage to this because people at least knew that they had a
guaranteed outer marker, and if A, B and C live longer than 35
years, great. But if they drop dead tomorrow, Im at least here for 35
years. While your freehold estate your lease for lives was in
existence, you are treated as a freeholder and you got to vote.
When the last life drops, you are a leaseholder only from that
moment on. So this combining of a terms of years with lives is
designed to give some certainty. And it could either be concurrent
where the leasehold terms was running at the same time as the
freehold estates or, for added security, the interests could run
consecutively. Again, a very antiquated way of holding land, and
done away with in the 2009 Act, but you do see these sometimes in
old cases.
Fee Tail
LCLRA 2009, section 13
Before 2009 youd have to torture a class for about a single lecture
on this damn thing which mercifully has been done away with. But it
has to be referred to briefly because, on occasion, you will see these
turn up, but theyre nothing like as common as fee farm grants.
Here again, the easiest way to conceptualise this is to look at it in
terms of time. Remember what the fee simple was about: something

that could be inherited over time and keep the interest in existence.
At its earliest it was about the land being inherited. It took a little bit
of time before it became possible to establish alienability and
devisability. But as long as there was an heir there to pick up the
baton, the estate continued. It was called a fee simple because fee
was forever, simple because was there was no restriction on who
could inherit. But they came up with a variant. But again, and this is
becoming repetitive, the came up with it because people wanted it
there was a demand. Its like 5 or 6 years ago when there was a
demand for limited recourse mortgages. Somebody said look, I
want to be able to grant land to my son, but because Im obsessed
with keeping the land there for posterity, I want to ensure that it
only goes to descendants and that it stays within a line. A lot of
these family homes were entailed, which meant that it was all about
the eldest son. He inherited the title lord whatever and at the same
time he got the family seat; all the other kids had to clear off. It was
about keeping a single stream of succession going so that the land
was in the family. Now, as well see later, the land could be used to
provide for other members of the family, but the principle objective
was that it go to the eldest male. And the fee tail was seen as a way
of doing this. It was a fee simple or rather a fee that had been
cut. Thats where the tail comes from. It comes from law french
taille. It was a cut-down fee simple because you cut down the class
of heirs. So in other words, a woman couldnt be an heir on a fee tail
male, because it could only go to male descendants. Collaterals
(cousins, brothers, uncles) couldnt be the heir, even though at
common law if there were no children, collaterals could qualify as
heirs. So this was a cut down fee. And it meant that it would run as
long as there was a descendant available to take the land on the
death of the previous owner, and that descendant qualified. So, for
example, if it was a fee tail male, the fact that you had a daughter
was no good. And even amongst your male descendants, it could
only be the eldest male. The rules of prima genitor applied.
That meant that you had something that had a greater risk of
failing. Because the classes of people that qualified as heirs is
reduced. So the fee tail was more likely to fail than a fee simple. And
when it was created it was effectively created under the fee simple.
In other words, when the person who originally had the fee simple
created the fee tail, the fee simple remained in the background. Its
kind of like having multiple windows open on your computer. This is
how it works with these estates. The fee simple is still in the
background. Its still owned; there are people who own it, but below
it is the fee tail estate which has now given the entitlement to
possession of the land. And what you have to have as the fee tail
runs along is a person, not an heir, but an heir of the body. If the
heirs run out, the fee tail is over and the fee simple falls back into
possession. Now that might happen in 200 years, but theres
somebody there waiting; the fee simple has been inherited all along

the way and somebody can come along and show you on paper how
theyre now the owner of this estate.
This led to land being tied up this is the evil of the fee tail estate.
This is probably the most vivid example of a tension operating in the
common law. The problem was this: why did these things get
created? They got created because people wanted them. Why did
people want them? Not to be awkward or difficult, but to keep land
within the family. Why did they want to keep the land within the
family? Because they believed that land was the principal incomeyielding asset. This was long before depositing money in the bank,
long before shares in companies or government bonds, long before
the mercantile class emerged, long before modern commerce. Land
was always going to be the principal income-yielding asset. How did
it produce income? You had tenant farmers on the ground paying
rents to the person who had the freehold. As time went by, the idea
of keeping the land within the family presented a number of
problems. One such problem was it was completely inconsistent
with the demand for land that was out in the world. Out in the world
people were saying well, Im interested in building something or
establishing a better farm by buying up smaller holdings. Im in the
market for land. I want to buy it; I dont want to rent it from
someone and be beholden to them. But you couldnt sell this land,
because a fee tail estate had a fundamental problem, which was
that, unlike the fee simple, the fee tail wasnt inherently alienable.
The ability to sell that was laid down in Quia Emptores didnt apply
to a fee tail. And if an individual who had inherited the land under a
fee tail said right, to hell with this, I want to sell, and sold the land
to P, who paid money for it, all the purchaser got was the right to
occupy the land for as long as the selling heir was alive, for the
heirs life. And when the heir died the fee tail says that the next
descendent gets it. So the next descendant would come along and
say clear off. And the purchaser would say well I bought it off him,
I paid for it, Im entitled to be here. And the problem was this: land
law had an old maxim, which is still knocking around I think: nemo
dat quod non habet, meaning nobody can give what they do not
have. And thats a fairly sensible and logical principle of land law.
You cant give more than you own, and if you try to do it, its
ineffective. So under a fee tail, all that you had, effectively, was a
right to be there until you dropped dead and then your descendant
would step in. You couldnt prevent your descendant stepping in; he
would come in and chase the purchaser away.
Now that was the tension: the law is accommodating landowners
creating this right that would keep land in the family at the same
time youve got all these purchasers banging on the door trying to
buy the place. And eventually youd end up with an absurd situation
where the courts began to facilitate legal fictions that would enable
you to sell the land outright. The fee tail could effectively be broken,

and the term used was barring the entail. And what barring the
entail meant was this: if you effected a sale, you would effectively
block off the rights of everybody who would have been afterwards
entitled under the fee tail barring the entail, blocking them. And
eventually a piece of legislation was introduced in the 19th century
called the Fines and Recoveries Act 1834, which enabled you to do
this on a statutory basis, it ceased to be a legal fiction. The 1834 Act
just disapplied the principle to fee tail estates which you can do.
Nemo dat quod non habet is a common law principle; you can just
switch it around if you want. And if you see some old land law
papers, youll often see the question The creation of a fee tail
estate is a pointless exercise. Discuss. And the reason why it was
pointless was, you created this creature with the intention of
keeping land within the family. But it could be set at nought by
somebody just using the procedures in the 1834 Act. You then
ended up with, not only an antiquated concept which is still part of
the law, but which the law actually allowed you to circumvent. If you
could circumvent it why bother having it? And it wasnt until the
2009 Act that someone finally threw in the towel. In fact the LRC
didnt even recommend the abolition of the fee tail estate. The said
well its not really doing any harm. But the system was
complicated enough so why have something that is practically
useless. So the 2009 Act banned the future creation of these things.
In the 21st century in Ireland, the idea that you would set about
programming an interest so that it would stay within a family for
succeeding generations is completely alien to modern thinking.
Land ownership is perceived in modern times as being as close to
absolute ownership as makes no difference. The fee tail is so
pointless that, not only did the 2009 Act ban the future creation of
such estates, but any that were still knocking about were
automatically converted into fee simple estates. And so the effect of
the Act for any remaining fee tails that may have been in existence
in 2009 was to put a line through the fee tail and call it a fee simple.
And that necessarily dumped the fee simple interest operating in
the background of any fee tail estate. Its interesting the way that
happened because in land law that happens from time to time, and
you do get the impression that people interested in land law arent
overly interested in the provisions of the Constitution relating to
property rights. Because the way in which you could clear a fee tail
off and effectively convey a fee simple in breach of the principle
nemo dat quod non habet was probably always constitutionally
suspect. Because the person whos being short-changed, the owner
of the fee simple and indeed the future successors, gets no
compensation. Theyre losing their property.
Life Estate
Now exists in equity only: LCLRA 2009, section 11(6)

Landowners regarded themselves as being responsible, as having

some sense of heritage and tradition and responsibility for future
generations. An older man would look at his young son and say
well, during the irresponsibility of youth, if he got his hands on a
fee simple, he might sell the land, or he might mortgage it and not
pay the debt and lose the land. So I dont want to give him
something that he can sell because when hes older hell realise the
importance of having land as this income yielding asset and hell
regret it. Thus, landowners liked the idea of the life estate for future
generations. So they came up with the idea that when I die, Im not
going to give the fee simple that I have to my son because if I do
hell just sell it. Now youre asking the question, well, why didnt he
just leave a fee tail estate? But the problem with a fee tail estate
was, very soon, the very purpose that a fee tail was designed to
achieve was frustrated because the courts and then later the
legislature allowed you to bar the entail. So people opted for the life
estate. The initial idea when youd be making your will would be to
create a succession of life estates going out into the future
effectively doing the same thing as a fee tail does, but it couldnt be
barred. You would basically say to my son A for life, and then to his
son for life, and then his sons son for life, and his sons sons son
for life, and so on. And youd basically need a parchment as long as
a roll of wallpaper. And the law then said, no, you cant do that.
Thats fundamentally inconsistent with the laws purpose in making
land alienable. If you did that, youre locking up the land forever
and you cant do that. That was what was called a perpetual
freehold and it was banned. All through the development of the
common law of property, youve got this constant tension between
one group of people who try to lock land up, and another group of
people who want to buy it, and then the courts in between. And the
courts gradually came to accept that you couldnt have these
arrangements that tied land up forever. Another example of this
something that you dont have to worry about anymore but might
see in textbooks was the rules against remoteness, the so-called
rule against perpetuities. Now, if you think that you dont like this
subject, that its boring and tedious and complicated, you should
have seen it when we had the rules against perpetuities! I was days
lecturing on it, and it was just the most impossible stuff to get your
head around. But these rules against remoteness were designed to
prevent this tying up of land. It is of no modern interest.
So what were owners to do then? What people did then was they
went to their friendly conveyancer and said look, I want to tie up
the land. I dont want my descendants to be able to sell the land in
case they turn out to be wasters. And the conveyancer couldnt do
anything for him with the fee tail because it was inherently barable.
And he couldnt give him a big wallpaper load of life estates into the
future because perpetual agreements were banned. What he could

do was to come with a hybrid version whereby land would be tied up

for life estates for as far as you could use them, and after that,
youd have the fee tail. So what you were doing was you were
pushing the fee tail back so that for at least maybe 100 years, the
land would be tied up. So somebody eventually got the fee tail, but
what was built into the system was a prejudice. Because what you
then did was, as the time approached when the fee tail was coming
up, the dad would say to his son (who was getting the fee tail on the
death of his father and was excited to sell it for the money), Ive an
idea. How would you like some money now? Because I could go
down to the solicitor and get all this re-jigged so that you get a life
interest, but with some money now. And this would push the fee tail
back another generation. And of course the son, being young and
stupid, would be attracted by the money. And so youd have this
rearrangement, called a resettlement. Because these arrangements
and this is what Im leading on to are called settlements. A
settlement in land law is not 10 houses with thatched roofs in the
new world waiting to be attacked by the natives. A settlement was
where you settled land, where you put it into a succession of
interests, usually with the specific purpose of postponing the
ultimate vesting of an absolute interest until some point in the
future that is legally permissible. You couldnt break the rule against
perpetuities or create a perpetual freehold or an unbarable entail,
but you could go somewhere. The courts accommodated you to
some degree, but not to a remote time in the future.
And so this resettlement would occur. And what the resettlement
model involved was giving people who were around now life estates
instead of their fee tails, providing for a new fee tail by pushing it
back further, and paying this person off. And the problem with this
was that, as things went along, these family settlements were used
not only to provide for your eldest son, but people began to be
concerned for the other members of their family. Remember, there
was always this obsession of the landed classes with the idea that
the eldest son had to succeed. You couldnt divide up the land
between all the children, but sometimes there was the concern that
you needed to do something for your other kids. And so what youd
have would be charges provided for, annuities provided for, out of
the land. My daughter charlotte can have 100 per year. Or
sometimes youd have a provision whereby a sum of money had to
be raised out of the land a capital sum. So part of the land would
be mortgaged to raise a capital sum to do something such as pay a
dowry, because in the 19th century women werent going to be
working so what did you do if you had daughters? You read Jane
Austin and worked out that you had to get them married off. And the
other sons had to go off and get a living go into the professions, or
the army, where youd need money to buy your commission. And
likewise there was provisions made in some of these settlements for
widows. All this involved money coming out of the land: either you

mortgaged and got a big capital sum, which was then locked onto
the land, or you simply created an annuity that said every year, out
of the land, 100 has to go to X. Now that sounds fine and
everybodys happy. But the trouble is that when you say the money
comes out of the land, it doesnt sprout off a potato plant. It meant
your collector going out and kicking tenant ass. And inevitably, this
is where the system broke down. Because the only thing that the
tenants were producing was agricultural produce and it didnt
matter how many lazy, useless, bone idle children the lord had who
needed to have annuities payed for them, the land could only
produce so much value. And so this type of landownership began to
implode. The land couldnt take it. And you ended up with the one
thing that 19th century society couldnt bear and that was a poor
aristocracy. Its one thing to be from the lower class and be poor but
a poor aristocracy was different. They then start moaning what can
be done for us, we cant work. And in the 19th century, the ironic
thing was that you had people who wanted to buy the land but after
centuries of this resettlement, the land land was overburdened with
all of these family arrangement. And even if someone came along
and wanted to develop the land, the solicitor couldnt convey the
land because so many parties had rights against the land that he
couldnt make title.
The legislature eventually decided to do something about the
problem. And in 19th century Ireland, you had various pieces of
legislation the Encumbered Estates Courts Acts and the Landed
Estates Courts Acts that created a crucial concept called
overreaching, which is now used in the 2009 Act. Overreaching is a
fundamental concept in land law now. In the 19th century the idea
was that the land needed to be cleared of all of this messy title. You
had people with rights in respect of this land people entitled to
annuities, charges, life estates, fee tail estates and all sorts of other
things and that needed to be cleared away. And if you couldnt get
people to agree and remember, some of them might be underage,
of unsound mind, away in a different country, elderly or just
downright difficult there had to be some other way. And so in
Ireland in the middle of the 19th century there was the
establishment of the Landed Estates Court, before that known as
the Encumbered Estates Court. And the name Encumbered Estates
Court gives you a hint as to what it was at. All these things were
classed as encumbrances burdens on land that prevented it from
being sold. And the Encumbered Estates Court was given the power
and you do still see these conveyances on titles (although with
registration of title this stuff will disappear) to take all the
encumbrances off the land. You dont tear it up, you dont invalidate
it, you dont ignore it. In a conceptual or metaphysical sense you
pick it up and you take it off the land. Because what this exercise is
about is selling the land. So overreaching involves basically packing
the encumbrances up and letting a sale take place executed by the

court (Ross J is commonly the judge involved). With such a

conveyance, the purchaser got an immaculate title. A Landed
Estates Court conveyance was regarded as one of the best roots of
title you could get because every vestige, every scrap of title, every
scrap of interest affecting the land, was swept away. In terms of
title, the land was pristine because nobody else had an interest.
Thats the definition of the best title. And thats what a conveyance
of the Landed Estates court gave you. Because all rights of other
people, whether they were before the court or not, were swept away
moved over onto the money. And so all these people with various
interests in the land had to sort out their issues between themselves
in relation to the money. Now it often wasnt ideal because of course
the money wasnt doled out, it wasnt divided up. Because usually
you werent dealing with people who were say 3 or 4 co-owners,
each of them entitled to the fee simple, where the interests could be
easily divided up. You couldnt do that with these kinds of interests
because these kinds of interests were messy. These were people
with transient interests, limited interests, and so all you could do
was say right, this money is being invested in boring, low-yield
investments youll see references to what are called consoles
and they were state securities. The money was invested there, it
produced an income, and all of our landed class friend would have
to turn up and basically have the income divided up amongst them.
So the settlement was overreached. It was cleared off.
To come back to what were talking about today, the life estate, as
weve seen, is an integral part of those settlement arrangements.
Life estates are usually created in a family context. Now, you do still
see them being created, sometimes in a will where somebody might
have a relative that they care about, but theyre not willing to give
that person the entire property. For example an elderly relative who
has no near relations such as a spouse or children. And youd say
look, its pointless me giving Auntie Bettie the house because all
thats going to happen is shell then own it and then when she dies
shell leave it to the church or whatever. And thats crazy when Ive
got other relatives I need to look after for the future, so Ill give her
a life estate instead. And even then, creating a life estate was
dangerous and silly, because another another piece of 19th century
legislation moved on and used overreaching in a different way. The
trouble with the Encumbered Estates Court and Landed Estates
Court Act was that you had to go to court. And so the Settled Lands
Acts 1882-1890 were passed. And these Acts deployed
overreaching, but in a different way. You did not need to go to court;
instead it involved giving limited owners such as life estate holders
the power to sell the interest in the land over and above their own
life estate. They could sell the entire interest in the land that was
subject to the settlement. And in so doing, overreached the
settlement and caused the settlement to attach to money and the
land would pass to the purchaser. The Settled Lands Acts were far

more widely used and obviously they were a more progressive piece
of legislation because they didnt involve a court application. But
they meant that it was extremely dangerous for you to give anybody
a life estate because you were giving that person powers under the
Settled Land Acts. If you had intended that the house would be
there for other relatives after your aunts death, you could end up
completely undermining that by giving her the power to sell the
house. The fact that her interest was a limited life estate didnt
make any difference.
So the life estate has really had its day; thats the point Im leading
up to. Its not consistent with our modern notion of why somebody
has a title to land. There are other thing you can do for people:
rights of residence, which well be looking at later on, are more in
keeping with the idea. You give them a right to live in the house, but
they dont get any freehold estate in the house. And, if fact, in the
registration of title system which of course is basically going to be
everything once the registrations work their way through makes it
clear in s 81 that if you give somebody a right of residence in
registered land, they dont have a proprietary right, they dont have
an estate in the land, which would entitle them to offload it. So the
life estate is getting to a point where its had its day. And the proof
of that now is that you cant even create a legal life estate anymore;
life estates are only capable of existing in equity. Now that is
something that we will be looking at shortly, but Ill explain briefly
what it means. Our system of property law and land ownership
recognises the concept of the trust. Our system of land ownership is
hard-wired into the division of legal and equitable ownership. Its
been around virtually as long as weve had the common law of land
ownership that we are talking about today. It involves a simple
enough notion: you have one person that owns the legal title, the
legal estate (LE). This person can hold the ownership. They could
be, for example, registered in the Property Registration Authority on
the folio as the owner. You go look on a folio at the Property
Registration Authority for a piece of land, say folio 12345F, and the
owner according to the register is Mr B. Section 31 of the Act says
that is conclusive. So if somebody trespasses on the land, it is Mr B
who sues. If the the land is subject to a CPO to build a road, the
roads authority talks to Mr B. But it could be that Mr B hold the land
on trust for somebody else. The trust wont show up on the folio
because thats not the way it works; the legal owner gets registered
as owner, theres no trust recorded on the face of the folio. But Mr B
is in fact holding his legal ownership on trust for another person.
And this person is called the beneficiary. Trusts are a part of the
modern world. Trust of land are not something that you encounter
every day of the week, particularly in this country, but they are used
by people with a lot of money who want to shield it from view or
shield the ownership of assets from view or they might have money
that they want invested by professional trustees in a managed fund.

So weve got this split in ownership: B is the legal owner, C is the

equitable owner the equitable estate is vested in C. So our system
recognises this splitting of ownership in to legal and equitable. And
its not the same; there are incidents of equitable ownership that
are not present with legal ownership and vice versa. We then come
to the life estate; how is the life estate dealt with? Under the 2009
Act, the life estate can only exist in equity, which means that you
cant see it in law. There was provision in the past for someone with
a life estate to be registered as a limited owner (instead of
effectively an absolute owner with the full fee simple). Thats
effectively disappearing because a life estate will not give you legal
ownership; you are basically dependent on there being somebody
else holding the legal title. So C is entitled in equity for life. But
thats it; this is the only place the life interest exists. It cant exist in
respect of the legal estate, and the reason why that is now done is
because these things are not to encumber titles. Life estates, while
they can exist in equity, are to be overreachable. Section 21 of the
2009 Act is a very important provision and it deals with
overreaching.
So the life estate, which started out as the first freehold estate
known to the law, is not even allowed exist at law anymore, it can
only exist at equity, which makes it overreachable. It can effectively
be cleared off the land in appropriate circumstances. So thats how
far weve come. The point weve reached now the conclusion in
relation to freehold estates is that there is now only one freehold
estate that can exist at law, and thats the fee simple. Now of course
it can exist in a variety of forms modified fees, surviving fee farm
grants but no new fee farm grants but thats it. Theres no fee tails
and theres no legal life estates; life estates can only exist in equity,
and when they exist in equity, they are vulnerable to overreaching.
Why are they vulnerable to overreaching? Because it has been
decided that they should not encumber title. Thats what
overreaching is about: its a policy decision that there are certain
rights in land that may be enforceable between the person who
created it and the person entitled to it, but which should not hold up
a disposal of land.

Leasehold Estates
Its really important to distinguish between leasehold and freehold
estates. When you see some of the really simple questions on the
exam that I set and people cant even distinguish between freehold
and leasehold, youd understand why I stress this point.
Weve already touched on leasehold estates and where they came
from. The leasehold estate was where the common law basically
acknowledged that land was a commodity and should have an

ownership mechanism that turned on that alone, as opposed to the

feudal arrangement, which was based on organising peoples
relationships within society. The leasehold estate was thus born; and
it was backed up with the action for ejectment, which the common
law eventually recognised. You then saw an evolution where
leasehold estates have certain defined characteristics. The 2009 Act
has helped us in a number of ways. First of all, you cant talk about
leases for lives, because a life was never a leasehold estate. So that
doesnt even belong in this area; were now talking about leasehold
estates.
Leasehold estates can be broken down into two principle types, in
practical terms (and Im using the term practical terms here
deliberately). Traditionally, you would be talking about one of two
things. One class of leasehold estate was a lease for a term certain.
A term certain has two essential characteristics. A lease has to have
a definite starting point. Because if its for a term, its for a period,
and you need to know when its starting; and you need to know
when it starts so you know when it ends. These points in time are
important because the sections of time on either side of the period
of the lease are points in time when the holder of the lease has no
rights.
During that time between the start and the end, its still possible for
that period to come to an end prematurely, for example, by
agreement where the tenant surrender the property back to the
landlord. Now, tenants dont have an automatic right to do that a
lot of people think they do but they dont; its a contractual
arrangement. Or it could come to an end by compulsion, because
the landlord finds that youre breaching covenants in the lease, not
paying the rent, for example. Or there could be a break clause.
Break clauses are where a lease has built into in a term that says at
a certain point, I can serve notice on you. These are often used in
commercial leases where they would have been used to entice
somebody to sign. A person with a fledgling business may be
reluctant to sign a 25 year lease because the business might fail, so
a break clause allowing him to break the lease after say 5 years may
be inserted. But all of that is fine because you at least know that
there is a definite start and a definite finish.
You contrast a lease for a term certain with whats known as a
periodic tenancy. A periodic tenancy is a tenancy that has a base
period that recurs. A periodic tenancy, monthly for example,
continues to roll over, and youre paying rent for each period (each
month). The point about a periodic tenancy is that it has an
advantage over a fixed term lease because it doesnt have to
continue for a very long period of time. Either party to a periodic
tenancy is entitled to bring it to an end by giving notice called a
notice to quit. Superimposed on the law relating to leases is a huge

body of statute law, which gives tenants certain rights. And one of
the most important rights that they have comes from the Landlord
and Tenant Act 1980: if you have been in possession under a
business lease for a period of 5 years, youve a right to new lease. If
the landlord tries to put you out, you can demand a new lease, and
the court will fix the rent. Theres also the Residential Tenancies Act
2004, which gives residential tenants considerable rights about the
circumstances in which the landlord can bring the tenancy to an
end. So in fairness, the system is generally tilted in favour of
tenants. Why might this be? Well remember, our country has a
tradition of the landlord being the aggressor; its natural to find in
our law a bias against the landlord. Now things have changed in
relatively recent times; for example, for a long time you couldnt
contract out of the right to a new lease, but that became possible in
2008.
So the periodic tenancy can continue on indefinitely, if neither body
serves a notice to quit. It was thought and there is English
authority to this effect that a lease for a term had to be a certain
term. This didnt cause a problem with periodic tenancies because
the base period is certain. So, while the common law allowed
periodic tenancies that could continue on indefinitely, it did not like
the idea of a term that was uncertain. And the reason it didnt like
that was it said, well thats not leasehold. At the time the law didnt
have a difficulty with leases for lives. Yes, theres a lease; yes,
youre its leasehold tender youre paying rent to a landlord, but
your estate is freehold. Theres nothing wrong with a freehold
estate being uncertain a life estate is necessarily uncertain, for
example. But that was freehold. Weve now crossed the line into
leasehold, and with a leasehold the common law said that the term
must be certain. It could be very long 10 million years if you want
but its still measurable. Granting somebody a lease saying you
can stay there until the land needs to be used for road widening
may seem more modest than 10 million years, but it doesnt qualify
under the common law approach to a leasehold term because its
not a definite duration. Its not certain when that lease will end.
People argued that was ridiculous in this day and age, particularly in
Ireland where the relationship between landlord and tenant is based
on contract. Section 3 of Deaseys Act, unlike in England, put the
relationship on a contractual footing. And so, in the 2009 Act, youll
see a new definition of what a leasehold estate is. It is possible to
have a term that is of indefinite duration, in the sense that it may
depend on an uncertain event. So the road widening example is now
a valid lease. You do not have to build into it a finite term.
The size of leasehold as a topic is hardly surprising given the
significance of leases within the land ownership system. Leases are
used every day of the week to create a variety of arrangements
whereby land is exploited. From a landlords perspective, the lease

is a very important way of generating an income stream. Thats

what commercial leases are for. These are leases granted in respect
of buildings. The owners of those buildings have no interest in using
them themselves. Youre not in the business of using an office block,
you simply want the income. And therefore, by definition, you will
want a legal mechanism whereby you can create a relationship of
landlord and tenant between you and the occupant, and that lease
will have to be a very extensive document to ensure that your rights
are protected. The problem is of course that there is always a
tension between landlord and tenant, each trying to get the better
deal. The landlord wants to get as high a rent as possible and to
impose as many obligations as possible on the tenant, obligations to
repair, to insure, to pay service charges, etc. All of that has to
factored into the lease. And the tenant likewise will try to get as
good a deal as possible against the landlord. In the past it was a
sellers market and the landlord as the owner was in a position of
power and was able to command the best terms. The upwards only
rent review was the classic example of the result of such a situation,
and that is now seen as one of the banes of the commercial
property sector because its causing businesses to suffer because
they cant get their rent reviewed downwards even though the
market has collapsed. While theyve been banned from coming into
existence after the 2009 Act was triggered, those that were entered
into before that date still operate. Sometimes in this climate the
landlord will yield if a tenant goes to his landlord and shows him the
books, but he doesnt have to; only some landlords have seen the
light. It doesnt make sense to crucify a reasonably solid and reliable
tenant such that he defaults and walks away, meaning you have to
find a new tenant who wont pay the higher rent anyway. There you
see a change in the dynamic that feeds into how a lease is drafted.
And we might end up with a change in leasehold trends. You do see
trends in the way leases are entered into, duration, etc. We embrace
a trend that they have on the continent but which we have never
really bought into because of the idea of land being a guaranteed
source of a particular defined income: the idea of a turnover rent. A
turnover rent is seen as being a very equitable arrangement
because the parties share the profits and the losses. Rent is set at a
percentage of turnover. So if the tenant does well, the landlord
charges a higher rent, and if business is poor, the rent reflects that
also. So that just goes to show that the concept of leasing land is
not static, it does change.
The vast, vast majority of apartments were sold using leases. And
thats a peculiarity of the old law relating to covenants. The reason
was because, under the old law before the 2009 Act, you couldnt
make positive covenants run so as to bind successors in title. The
law recognised that restrictive covenants could move outside the
realm of contract. So somebody bought a piece of land and entered
into a restrictive covenant not to use the land for business purposes.

They sell it on and the restriction continues to bind the land through
the hands of third parties who werent parties to the original
contract of covenant. But the law (and by the law I mean equity)
would never allow positive covenants to run. A negative covenant
says you cant do something: you cant build more than 1 house;
you cant use the land for business purposes. A positive covenant,
on the other hand, says you must do something: usually you must
repair or you must pay. Positives covenants cant run with freehold
land. But apartments depend on common areas that need to be
taken care and positive covenants are necessary. And so people had
to use leases to sell apartments. These leases were long leases of
500 or 1000 years, because people werent going to pay for an
apartment and get a 100 year lease. And the lease was at a nominal
rent, 1 for example, because the rent was simply there because it
was believed in this jurisdiction that you cant create a lease without
a rent. Section 3 of Deaseys Act, which is the core provision, which
weve looked at already in the context of fee farm grants, talks
about the relationship of landlord and tenant being founded on
contract and existing where one person holds land of another in
consideration of a rent. So the belief amongst lawyers for over a
century has been that to have the relationship of landlord and
tenant, even if youre creating it as a way of selling a property, you
still must have a rent, even if its nominal a peppercorn rent. The
usefulness of the landlord/tenant relationship is that you can put
positive covenants into the lease, the lease of the apartment. The
most important positive covenant is the covenant relating to
contribution to service charge. Service charge is a big thing, and its
something that has given rise to huge problems with apartment
buildings because people buy their apartment and then they dont
realise that theyll have to pay ongoing maintenance. People end up
not being able to afford the payment and as a result there is a
worrying trend of management companies falling apart. Then
something serious goes wrong with the building, such as the
basement starts flooding because theres a crack in the slab due to
poor work, and its going to cost 1.2m to repair it. 6 years have
passed, the Statute of Limitations has run, and so it has to be
divided up amongst the apartment owners. Thats the downside of
apartment living shared facilities have to be payed for, and the
way in which youre supposed to compel the payment is by means
of leases.
Following the 2009 Act, the law has changed and positive covenants
can run with freehold land. And you may see leases no longer being
used in respect of apartments and instead see people just getting
the fee simple in the apartment, whats called a flying freehold. For
a long time there was a belief that, while you could have freehold in
the land, people didnt understand the idea that you could have
somebody owning a fee simple estate in something on the 5th floor.
People would say sure that doesnt make sense; surely the fee

simple is down at ground floor level. And the answer in land law
was no, you can have slices of fee simple going up or down and
such things are recognised. So in modern times, from a technical
perspective, you could create a flying freehold you could give
somebody a fee simple for an apartment on the 5th floor. But the
funny thing about the nature of conveyancing in this country was
that if you did, nobody would want it. Most solicitors were incredibly
conventional and scared, possible because I thought a lot of them,
and they would say wait a minute. Dont like that. Whats that, a
flying freehold? Not going near that. Thats like suggesting I get on
a plane that has no wings. And on one level theyd be right. Theres
nothing wrong with it from technical perspective, it can exist. But
from a practical perspective there was the problem that you couldnt
tack any positive covenants onto it so that somebody that bought
the apartment after you would be obliged to contribute to the
service charge. And so they were right; this was a bit odd and one
shouldnt use it. Its difficult to say whether theres going to be a
change now because of the 2009 Act, because needless to say,
there isnt a property boom anymore; apartments are a lousy
investment. So its too early to report whether people are going to
be using freeholds to sell apartments within developments.
The last thing I want to talk about is two residual categories. Weve
been talking about leases for a term certain and periodic tenancies.
A lease for a term certain is a fixed period of time 10 years for
example while a periodic tenancy is a recurring period. The law
has changed that you can have an indefinite period thats allowed
under s 11(3) of the 2009 Act.
But theres two other things that were traditionally referred to when
one talked about leaseholds or tenancies and these are tenancies
at will and tenancies at sufferance. The simple way of approaching
these now is provided for by the Act: section 3 says a tenancy
means the estate of interest that arises from the relationship of
landlord and tenant, however it is created, but does not include a
tenancy at will or at sufferance. What thats basically saying is that
a tenancy at will or a tenancy at sufferance is not a tenancy in the
2009 sense. Tenancies at will and tenancies at sufferance were
really arrangements that were too transitory and indefinite and
fragile to merit even being called tenancies; its a misnomer.
Because a tenancy at will was no more than somebody being on
somebody elses land at the will of the landowner. And what that
meant was, you could be ordered off at any time and simply become
a trespasser. And in certain cases, its been said that a tenancy at
will is so precarious, its little more than a bare license, if theres any
difference at all. And a tenancy at sufferance was even worse.
Because with a tenancy at will, you were at least there at the will of
the landlord, but a tenancy at sufferance was where you occupied
the land without the landlords assent or decent. It was a no man's

land in the sense that, if the landlord assented to you being there,
youd have a tenancy at will and if the landlord dissented, youd
have nothing, youd be a trespasser. So a tenancy at sufferance was
the lowest form of so called tenancy. The 2009 Act sensibly said,
look, these are not tenancies.