Landlord and Tenant (Ground Rents) Act 1967
2. Rights of certain Lessees and Tenants to purchase the Fee Simple
3. Covenants against Assignment and Sub-letting
1. General
The Landlord and Tenant (Ground Rents) Act 1967, came into operation on 1st March 1967, by Order of the Minister for Justice under the Landlord and Tenant (Ground Rents) Act 1967, (Commencement) Order 1967, (S.I.No.42 of 1967).
Regulations have also been made under the Act – see the Landlord and Tenant (Ground Rents) Act 1967, (Forms) Regulations 1967, (S.I.No.43 of 1967).
2. Rights of certain Lessees and Tenants to purchase the Fee Simple
Section 3 of the Act provides that the categories of lessees and tenants set out therein shall have the right to purchase the fee simple interest in the land and any intermediate interests therein. A person who proposes to exercise his right under the Act to purchase the fee simple must serve the notice prescribed by section 4 i.e. GR Form No 1 in the Regulations supra. It is important to note that unless such a notice is served, no purchase by a lessee or tenant of the fee simple interest in the lands is to be regarded as a purchase of the fee simple under the Act. Accordingly, the provisions of the Act in so far as they relate to the purchase of the fee simple interest, e.g. Sections 8 or 31 would not appear to apply in such circumstances.
All cases under this heading are to be dealt with by Examiners. The main points upon which the Examiner should be satisfied are:
1. That the purchase is being made in pursuance of the provisions of the Act. In all cases where this is not clear, it is essential to have the Solicitor clarify the matter. [See also section 10].
2. That the purchaser and the property are within the terms of section 3(2).
3. That the purchaser has obtained the consents of all persons whose consents are required by section 5(1) and (2).
Despite the ambiguous wording of sub-sections (2) and (3) of section 8, a conveyance duly executed by an Officer of the Court appointed for the purpose of these sub-sections by the County Registrar for the area concerned may be regarded as an effective conveyance of the interest of the person on whose behalf the Court Officer purports to convey.
Section 17 gives wide powers to the County Registrar to resolve difficulties which may arise under the Act, and he may determine matters by award.
If, in any particular case, the Examiner considers that the County Registrar has made an award which, in his opinion, is wrong in law, or he has a reasonable doubt about the legal validity thereof, he should seek a direction from the Deputy Registrar.
Under section 24, it appears that a mortgagee under a mortgage by sub-demise is not to be regarded as a person having a right to purchase the fee simple interest in the land under section 3. However, if a lessee executes a mortgage by sub-demise retaining a nominal reversion and the land is subsequently sold by the mortgagee in exercise of his statutory powers, the purchaser thereof shall for the purposes of the act be deemed to have acquired the interest of the lessee, including the period of the nominal reversion.
3. Covenants against Assignment and Sub-letting
Sections 10 and 18 of the Landlord and Tenant Law Amendment Act (Ireland), 1860, (Deasy’s Act) are repealed by section 35(1) of the Act.
The position now appears to be that, with the single exception noted below, an assignment or sub-letting in breach of a covenant in a lease is NOT VOID. The lessor’s remedy for breach of such a covenant would appear to be an action for damages for the breach. It may be, however, that the deed is voidable at the option of the Landlord. (See Cherry’s “Irish Land Law and Land Purchase Acts” pp.29-35, 46-50).
It should be noted also that section 35(1) amends section 14 (6)(i) of the Conveyancing Act 1881, by deleting the words: “To a covenant or condition against the assigning, underletting, parting with the possession, or disposing of the land leased; or” Exception: As regards leases made between 1st June 1826, and 1st May 1832, (other than renewable leases or leases for 99 years or upwards) which did not contain an express clause authorising assignment, any assignment is void, unless it is made with the express consent of the lessor, by being a party to the deed or written instrument, or by endorsement thereon if the assignment was by deed or instrument in writing, or by a written consent thereto if otherwise.
The practical result of the repeal of these two sections of the 1860 Act (Deasy’s Act) is that the Settling Officer need not enquire (subject to the exception supra) whether the consent of the lessor or Landlord has been obtained in the case of any assignment or sub-letting. Furthermore, the Prohibition Notes relative to sections 10 and 18 should no longer be entered on any folio. On lodgment of any dealing or application concerning a folio upon which either of the above-mentioned Prohibition Notes are entered, the Settling Officer shall delete the Prohibition Note under the Landlord and Tenant Act (Ireland) 1860.
PROPERTY REGISTRATION AUTHORITY
DECEMBER 2009