leasehold estates

Question 1

Leasehold estates

Answer 1

• Originally, leases were seen as mere contracts granting personal rights, not proprietary interests, until the 15th century when common law began to recognise them as estates in land.
• Section 3 of Deasy’s Act 1860 defines the landlord-tenant relationship as contractual.
• A lease gives a right to possess land for a set period, usually fixed from the start.
• Section 11(3) of the LCLRA 2009 defines a leasehold estate as any tenancy created for a period or recurring period, whether it takes immediate or future effect, is subject to another interest, or has an uncertain or terminable term.

Question 2

Lease for a term of years

Answer 2

• A lease for a term certain is fixed for a set period, determined when created, and must have a clearly defined duration. Terms can be very long (e.g., 99 or 999 years).
• It ends automatically when the term expires unless renewed, or it can be terminated early (e.g., for non-payment of rent). If the tenant stays after expiry without landlord consent, they are “holding over,” creating a tenancy at sufferance.

Question 3

Periodic tenancy

Answer 3

• This tenancy can arise expressly or by implication where the tenant pays rent periodically and the landlord accepts it. It renews automatically unless ended by either party. The Residential Tenancies Act 2004 governs such tenancies.
• To terminate, notice must be given; originally under common law the notice period matched the tenancy period (e.g., monthly tenancy = one month’s notice), but this has been amended by the Residential Tenancies Act 2004:
  o < 6 months — 28 days
  o 6 months – 1 year — 35 days
  o 1 – 2 years — 42 days
  o 2 – 3 years — 56 days
  o 3 – 4 years — 84 days
  o 4 – 5 years — 112 days
  o 5 – 6 years — 140 days
  o 6 – 7 years — 168 days
  o 7+ years — 196 days

Question 4

Tenancy at will

Answer 4

• A tenancy at will is similar to a licence and has often been difficult for courts to distinguish from a lease. It usually arises where there is an intention to create a landlord and tenant relationship but no fixed term is set and rent is generally not required.
• Temporary use of land is normally treated as a licence, and mere possession does not imply a tenancy at will (Cobb v Lane [1952] 1 All ER 1199).
• Courts have increasingly refused to recognise this arrangement as a leasehold estate, a position reflected in the 2004 Law Reform Commission Report and in section 3 of the Land and Conveyancing Law Reform Act 2009, which expressly excludes tenancies at will.

Question 5

Tenancy at sufferance

Answer 5

• A tenancy at sufferance occurs when a tenant remains in possession after their lease expires, without paying rent or the landlord asking them to leave.
• Under the 1883 Statute of Limitations (now replaced by the 1957 Statute), the tenant is considered in adverse possession, and the landlord has 12 years to seek possession. However, the tenant’s occupation is essentially that of trespass.
• The Law Reform Commission recommended abolishing this tenancy, and the 2009 Act excludes it from the definition of tenancy under s.3.

Question 6

Hybrid estates

Answer 6

• Hybrid estates combine both leasehold and freehold characteristics. They can be freehold in duration (e.g., potentially lasting forever or for someone’s life) but have leasehold obligations like rent payments.
• The need for hybrid estates arises largely from administrative convenience, as De Londras notes, and sometimes due to historical accident. Recently, hybrid estates, especially the fee farm grant, have been used to ensure enforceability of covenants between parties.
• Freehold estates can make enforcing promises difficult (e.g., prohibiting a swimming pool on the property), while hybrid estates, resembling a lease forever, allow for enforceability through landlord-tenant law.
• The LCLRA 2009 prohibits creating new hybrid estates in Ireland, but existing ones remain unaffected (ss.11, 12, and 14).

Question 7

Leases for life renewable forever

Answer 7

• Leases for lives, particularly those that were perpetually renewable, were created for several reasons. One key reason was that they allowed the grantor to enforce certain obligations through landlord-tenant law, which was beneficial for ensuring compliance with conditions like rent payment or property maintenance.
• Additionally, the grantor retained significant rights as a landlord, which were valuable at the time. While the grantee effectively had a freehold estate, granting them certain rights like the right to vote, the grantor could still exercise influence over the grantee due to their ongoing landlord status. This arrangement provided a balance of rights, where the grantee enjoyed the benefits of a freehold but the grantor maintained some control.
• No new leases for lives have been created since section 37 of the Renewable Leasehold Conversion Act 1849, which provided that any such leases would automatically operate as a fee farm grant.
• This provision was later replaced by section 14 of the 2009 Act, which states that any attempt to create a lease for lives will be invalid.

Question 8

Fee farm grant

Answer 8

• A fee farm grant is a fee simple subject to a perpetual rent, which can be enforced against the grantee and their successors. The grantee has the right to hold the land indefinitely but must pay a fee farm rent.
• Section 9(3)(c) of the 2009 Act allows for the continuation of the feudal fee farm grant.
  a) Feudal fee farm grant
• These types of estates arose from the Crown’s exclusion from the prohibition on subinfeudation established by the Statute Quia Emptores. The Crown retained the right to make grants through subinfeudation non obstante Quia Emptores (notwithstanding the statute). Additionally, the Crown granted tenants in chief the right to subinfeudate. Under these grants, tenants held a fee simple in the land, but it was subject to a perpetual rent owed to the descendants of the grantor (the lord).
  b) Conversion Fee Farm Grants
• The creation of leases for life renewable forever was complex and costly, leading to legislative efforts to move away from them. The Renewable Leasehold Conversion Act 1849 and the Renewable Leasehold Conversion (Ireland) Act 1868 allowed leases created after 1849 to be converted into fee farm grants, while pre-1849 leases could be converted by the tenant.
• Other statutes, like the Church Temporalities (Ireland) Acts 1833-1860 and the Trinity College, Dublin, Leasing and Perpetuity Act 1851, gave tenants the right to convert to fee farm grants. The Landlord and Tenant (Amendment) Act 1980 converted leases for lives renewable forever into fee simple, with lease obligations “grafted” onto the fee simple.
  c) Deasy’s Act Grants
• Deasy’s Act laid the foundation for landlord and tenant law, particularly through section 3, which defined a lease and allowed leases to last forever without requiring a reversion. The rental obligation alone creates the landlord-tenant relationship, but the grantee holds the fee simple estate, meaning the grantor retains landlord rights but no estate in the land.
• Section 12 of the LCLRA 2009 prohibits the creation of any new fee farm grants but acknowledges that those in existence are still valid.

Question 9

Recovery of fee farm rents

Answer 9

• When recovering rent, the type of fee farm grant makes little difference. Three remedies are available:
  1. Action for debt — available in all cases and enforceable by imprisonment for contempt if the grantee fails to comply.
  2. Distress — allowed grantors (before the 2009 Act) to seize chattels for unpaid rent; available in feudal and leasehold grants but later abolished following Law Reform Commission recommendations.
  3. Ejectment — where a landlord-tenant relationship exists, the landlord can eject for non-payment of rent.