The Land and Conveyancing Law Reform Act 2009 was signed into law yesterday, 21 July 2009. The purpose of this important legislation is to reform and modernise Irish land law by repealing and replacing various provisions which have governed our land law dating back to the 1700's. The Act also has some consequences beyond the realm of land law in certain areas, for example in relation to the preparation and execution of certain kinds of agreements.
The Act will not come into force immediately. Certain provisions will be commenced with effect from 1 October 2009 and the majority of the remainder of the Act will take effect from 1 December 2009.
This note sets out a brief overview of some of the key aspects of the Act.
Reform of Aspects of Land Law
The Act simplifies the law governing title to real property, as archaic concepts such as feudal tenure (estates in fee tail and fee farm grants) will be abolished. From a practical point of view, this will not impact on many landowners as such kinds of property title are now quite rare.
Other changes include significant amendments in the area of appurtenant rights and easements, judgement mortgages and lis pendens. Joint tenancies in relation to real property can no longer be unilaterally severed and the consent of all joint tenants will be required. In addition, the rule that the beneficial interest in property transfers only when monies are paid over is overturned in relation to real property, so that payment of a deposit is no longer necessary for a beneficial interest in land to pass upon conclusion of a valid contract for sale.
These changes take effect from 1 December 2009.
Taking of Security
The Act will impact on the way in which security is taken over property. Historically, mortgages over real property are created by a conveyance of the legal estate or interest in the land by mortgage. Upon commencement of the Act, mortgages over land shall be created by way of a charge on the land.
The implication of this new provision, and of certain other provisions of the Act, is that all standard banking documentation used to create security over all property, both real and personal, will need to be reviewed and updated in advance of the 1 October commencement date.
Housing Loan Mortgages
Another key area of change introduced by the Act relates to housing loan mortgages. Greater protections are introduced for mortgagors in relation to the enforcement by mortgagees of housing loan mortgages. These changes take effect from 1 October 2009. The new provisions:
- allow a mortgagor, in relation to a housing loan mortgage, to apply to court, among other, for time for redemption or payment of the mortgage debt or to direct a sale of the mortgaged property or to make a vesting order conveying the mortgaged property to a purchaser;
- provide for a notice period of 28 days before a mortgagee can exercise a power of sale and that a court order must also be obtained unless the mortgagor consents in writing; and
- provide, in relation to a mortgagee in possession, where a court order has been granted and a mortgagee has taken possession of a mortgaged property, that the mortgagee must take steps within a reasonable period to exercise a power to sell the mortgaged property or, if this is not appropriate, to lease the property and use any such income in reduction of the mortgage debt, thereby mitigating any further loss to the mortgagor.
As mentioned, these provisions relate only to housing loan mortgages and in the case of all other mortgages, such as commercial mortgages, the obligations, powers and rights or a mortgagee will take effect subject to the terms of the mortgage. As mentioned above, all standard banking documentation relating to home mortgages will need to be reviewed and updated in light of these new provisions.
"Upward Only" Rent Review Clauses
Another key provision that has been introduced in the Act is a provision relating to "upward only" rent reviews. This provision essentially renders ineffective "upward only" rent review clauses in leases entered into following the commencement of this part of the Act. It will not be possible to contract out of this provision. This provision is currently the subject of political debate and our understanding now is that this provision may be excluded when the other provisions of the Act are brought into force on 1 December 2009.
Execution of Documents by Individuals
The law relating to the execution of all documents under seal by individuals (not just property-related documents) is changed so that the affixing of the individual's seal is no longer required. This change takes effect from 1 December 2009. We are examining the impact this will have on the execution wording commonly used in documents and the impact, if any, of the provisions of the Act on the execution of documents by companies.
The Act is a lengthy one and contains a host of other detailed provisions in many areas. It will have implications for those involved in property and banking and also for those involved in other aspects of the law. The following are examples of some of the (albeit quite technical) provisions which impact both on land law and beyond, in a wider context:
- Future interests in all kinds of property are affected in that the rule known as the Rule against Perpetuities is abolished both for real and personal property. Again this change takes effect from 1 December 2009.
- The law in relation to the variation of trusts is amended, again with effect from 1 December 2009. An application can now be made to court to approve variations to the terms of a trust where a beneficiary is unable to consent to such a variation. This follows the position in the UK.
The above is a brief overview only of some of the provisions of this complex Act