right to residence Flashcards
(7 cards)
1
Q
what are the rights to residence
A
- Rights of residence in Ireland are the rights to occupy a house or room(s) in another’s property. They can be categorized into two types:
1. General Rights of Residence – A right to reside in the property in general.
2. Special/Exclusive Rights of Residence – A right to reside in specific parts of the property exclusively. - The distinction is important as it determines the level of control the holder can have over the property. The registration status of the property, whether registered or unregistered, also impacts the rights of residence.
- Additionally, Section 11(2)(c)(iii) of the 2009 Act notes that a fee simple in possession can be created or transferred, subject to a right of residence, provided the right is not exclusive over the entire land.
2
Q
Unregistered land and general rights to residence
A
- A general right of residence allows someone to live in a property without exclusive rights to specific rooms.
- Ryan v Ryan – a testator gave his wife the right to reside in a house with his nephew, but no specific rooms were assigned. The wife resided there until the nephew married. She temporarily left but later returned, and the nephew refused to provide lodging.
o Held – the nephew was obligated to provide lodging, as the widow’s right of residence remained enforceable unless her conduct led the nephew to believe she wouldn’t return, which would have justified altering his affairs. - Ryan v Ryan – it was suggested that if a general right of residence over unregistered land cannot be specifically enforced, the court may instead order a financial sum to compensate for the right. This is particularly relevant when the right cannot be practically enforced as a residence. Essentially, a general right of residence over unregistered land is treated as a licence, which can be revoked as long as the person with the licence is compensated financially.
- Kelaghan v Daly – the court treated a right of residence as a form of lien, which is a security interest over property, typically to secure a debt. The covenant in question required the son to support and maintain the mother and daughter, providing them with the right to reside in the family farm. The court found that a right of residence could be classified as a lien, but this comparison is controversial because a right of residence does not involve a debt.
3
Q
the general approach upheld
A
- This approach was upheld by Section 40 of the Statute of Limitations 1957, which states that actions related to rights in the nature of a lien, including a right of residence, cannot be brought after 12 years from when the right of action arose.
- Lahiffe v Hecker – the HC held that a general right of residence is a charge over the property – The case involved a father leaving a house to his children with the proviso that the unmarried daughter had the right to reside in the house until she married. The court ruled that the daughter’s right of residence was akin to a charge affecting all parties’ interests in the property, meaning the property could not be overcrowded to the point where her right became impractical.
o Significantly, the court found that the daughter could select one of the bedrooms for exclusive possession to make her right of residence practically enjoyable. However, it was also noted that she had no powers under the Settled Land Acts, which suggests no estate was created for her.
o This case supports the idea that a general right of residence over unregistered land is essentially a lien or charge on the land, and thus, it can be valued in monetary terms.
4
Q
Exclusive rights of residence and unregistered land
A
- Rights over a particular part of a property, such as a particular bedroom or a particular suite of rooms.
- National Bank v Keegan – an aunt had an informal agreement with her nephew for exclusive use of two rooms for life, in return for “natural love and affection.” The nephew later mortgaged the property, but the aunt claimed priority.
o Held – The court found she had an equitable life estate, not just a charge. Her actual occupation preserved her priority over the bank’s mortgage, despite no formal conveyance, relying on Hunt v Luck (a purchaser or lender is deemed to have notice of an equitable interest if the holder of that interest is in actual occupation, unless proper inquiries are made. Failure to inquire means the purchaser is fixed with constructive notice and bound by the occupier’s rights.)
o SC – There are two types of residential rights commonly granted in Ireland: (1) a general right over the entire holding with maintenance, which can be valued as a charge; and (2) a particular right to exclusive use of specified rooms. Since Mary Keegan was granted the exclusive use of two rooms for life, she was held to have an equitable life estate, just as she would if it had been given by deed or will.
o Murnaghan J. (dissenting) held that the aunt’s right was a personal right of residence, not a proprietary interest or charge, as the informal agreement and context showed the intent was to provide her with personal support, not to create an enforceable estate in the land.
5
Q
which case affirmed the decision in keegan
A
- Atkins v Atkins – affirmed the decision in Keegan – the court upheld the widow’s right of residence, equating it to a life estate with powers under the Settled Land Acts 1882-1890. After she moved away, the court agreed that vacating the property couldn’t strip her of her rights as a tenant for life. The court described her right as a “general” right, not an exclusive one, suggesting life estate rights aren’t limited to exclusive residence over unregistered land.
- The Keegan and Atkins decisions were criticized for extending tenant-for-life powers, including disposition rights, to holders of exclusive rights of residence.
o The 2009 Act s. 11(2)(c)(iii) clarified that an exclusive right of residence over the whole of unregistered land results in an equitable life estate under a trust, with the freehold owner as trustee. The exact nature of ownership for partial exclusive rights remains unclear, but they are no longer considered life estates.
6
Q
Registered land and rights of residence
A
- The legislature addressed the issue raised by Keegan through the Registration of Title Act 1964:
o S. 81 of the Act states that a right of residence, whether general or exclusive, in or on registered land is deemed to be personal. This provision was introduced to remedy the anomaly caused by the SC decision in National Bank v Keegan, which held that an exclusive right of residence (e.g., the right to use specific rooms in a house) conveyed an equitable life estate, granting the grantee powers like letting the rooms to strangers. This interpretation, the Minister for Justice Charles J. Haughey noted, often contradicted the original intentions of the parties involved.
o It establishes that a right of residence over registered land, whether general or exclusive, does not create an estate in the land. Instead, it is deemed a personal right, akin to a lien for money’s worth, and does not grant any equitable estate in the land. While the exact legal nature of a right of residence is not defined in the section, it can be understood as a personal right only.
o However, rights of residence are considered burdens under section 69. Therefore, purchasers for value of registered land will be bound by these rights, although purchasers for no value will be bound by them regardless of registration status.
7
Q
Valuing a right of residence
A
- Exclusive rights of residence over unregistered land are now governed by Part IV of the 2009 Act on trusts of land.
- Other rights of residence could potentially be paid off instead of being enforced as actual residence, but this may not be ideal. Reducing them to monetary terms could undermine their original purpose, especially when actual residence was intended.
- Johnston v Horace 1993 – while valuation was not deemed appropriate, Lavan J. provided guidance on how to approach it:
1. The right should be seen as ongoing, with its financial equivalent determined periodically.
2. The Court may value the right either at the request of the parties or when exercising its equitable jurisdiction.
3. The right-holder’s financial means should be considered.
4. The right-holder’s conduct should be taken into account.
5. Infringement of a right of residence typically warrants substantial damages.
o Lavan J. described a right of residence as one of the most fundamental human needs: “a roof over their heads for life, and a security that same would be available until the end of their days.” - Bracken v Byrne & Another – the court emphasized that the primary entitlement of the right-holder is to have the right of residence enforced, including through an injunction if necessary. If no agreement exists to extinguish the right, the court must assess factors such as the landowner’s means and the parties’ culpability for the breakdown of their relationship, to determine whether cohabitation is still reasonable.
