Head 18: 10 Flashcards
(16 cards)
In principle, real burdens created under the feudal system were…
But in practice…
Extinguished on 28 November 2004. See 2000 Act s 17.
In practice, however, most survived by virtue of one of the rules just described.
Furthermore, the s 18 notice (for conversion of feudal burdens into praedial real burdens) is supplemented by notices under ss 18A, 18B, 18C, 27 and 27A of the 2000 Act (for conversion of feudal burdens into various types of personal real burden).
The main class of feudal burden to perish were where
(a) there was no common scheme
and
(b) no notice has been registered under s 18 etc of the 2000 Act. For the time being, though, these burdens will remain on the Register (2000 Act s 46).
What happens when a burdened property is divided?
Where a burdened property is divided, each part remains subject to the burden (except where the burden clearly relates to one part and not the other). TCA 2003 s 13.
What happens when a benefited property is divided?
Where a benefited property is divided, the part conveyed away ceases to benefit from the burden unless contrary provision is made in the conveyance. The policy is to avoid the proliferation of benefited properties. TCA 2003 s 12.
But in the case of burdens imposed under a common scheme, all subdivided parts continue as benefited properties - so s 12 does not apply in the case of community burdens.
What is a pre-emption?
A pre-emption is where you sell property and place a clause into the disposition stating that if the buyer wishes to resell the property then they must give you the right of first refusal (a chance to buy the property back).
Can either be contractual or via a REAL BURDEN
For pre-emptions which are real burdens, do they bind all successive owners?
No - the legislation provides a way of breaking the pre-emption. The way a pre-emption is broken is provided for under s 84 TCA 2003
s 84 TCA 2003
When the owner of plot A (burdened with a pre-emption in favour of plot B) is planning to sell it, if they make a written offer to sell back to plot B then the owner of plot B can either accept or refuse this offer. Whichever they do, this pre-emption is then at an end.
The effect of this is that the owner of plot B only has one chance to buy. But this only applies if, as stated above, the owner of plot A offers it back formally in writing, compliant with s 84. So if the owner of plot A does not offer it back formally in compliance with s 84 then the pre-emption right will endure.
What happens if the owner of the burdened property sells property without offering back to the holder of the pre-emption right?
This is an offside goal because there is a prior obligation to sell to the owner of plot B. The purchaser will be in bad faith because the pre-emption right is on the register thus all the requirements of the offside goals rule are satisfied so the title conferred on the new owner of plot A is voidable and can be reduced by the owner of plot B.
Roebuck v Edmunds 1992
Concerned an example of failure to comply with a pre-emption right rendering the transaction voidable - confirming that the offside goals rule applies in practice.
What is a redemption?
A redemption is also a right to buy the property back. The difference between a pre-emption and a redemption is that a pre-emption is only relevant when the owner of plot A (burdened property) wants to sell.
However a redemption is much more onerous - it is a right to buy the property back whenever the redemption holder wants.
s 3(5) TCA
redemptions can no longer be created as real burdens.
Redemptions created after 1974 are…
Subject to a 20 year time limit - Land Tenure Reform Act 1974 s 12).
Personal burdens have no…
Benefited property.
There is a complete list of personal real burdens in…
TCA 2003 s 1(3)
Examples or personal real burdens?
1) Personal pre-emption burdens and personal redemption burdens) are available only by way of conversion from feudal burdens (under 2000 Act s 18A)
2) Conservation burdens (s 38)
3) Economic development burdens (TCA 2003 s 45)
Where are the special rules concerning personal real burdens?
Part 3 TCA 2003.
In particular provision for assignation of the right of the holder (s 39) and for a presumption of interest to enforce (s 47)
