In substance Irish property law is largely based on the same concepts as English property law. Most historical differences are now of little practical significance, but the following points should be noted:-
(i) Irish law is still essentially pre-1925 law, with old legislation like the Conveyancing Acts, 1881-1911 and Settled Land Acts, 1882-1890, still in force. There is, however, modern legislation governing registration of title (Registration of Title Act, 1964) and succession law (Succession Act, 1965).
(ii) The registration of title system covers agricultural land but much land in urban areas remains unregistered. This is subject to a registration of deeds system which applies to all unregistered land in the State. Under this a "memorial" (ie summary of essential features) of deeds and other conveyancing documents is registered in the Registry of Deeds in Dublin and such registration governs priorities. There is no equivalent of the Land Charges Registry or local land charges registries which operate in England and Wales. There is, however, a Companies Registry and Irish company law largely follows English law.
(iii) Irish conveyancing practice is different in some respects from English practice, partly because of the differences indicated in (ii) above and partly because some English practices have not developed to the same extent. For example, pre-contract enquiries and searches are not normally as extensive in Ireland as they are in England, and most matters of this kind are checked at the post-contract stage, through requisitions on title.
(iv) There is extensive statutory protection afforded family property, which has to be taken into account in conveyancing (eg the Family Home Protection Act, 1976). This is partly due to the fact that, unlike England, Ireland has a written Constitution which enshrines certain fundamental rights which override any other law, including, even, legislation. Thus it is not uncommon to find legislation declared by the courts to be unconstitutional and, therefore, null and void. This happened some years ago to much of the Rent Acts.
2. Landlord and Tenant Law
Although the basic concepts of Irish law remain the same as those operating in England, there are some important differences.
(i) Since the last century, Ireland has had special legislation governing landlords and tenants, eg, "Deasy's" Act, 1860. One interesting feature of this is that, under this Act, a tenant can get rid of any continuing liabilities (eg for rent, service charges, etc) once he has assigned his lease with the consent of the landlord. Ireland has not suffered, therefore, the problems over this matter which have caused so much controversy in England in recent decades.
(ii) Since the establishment of the Republic of Ireland in the 1920s, a comprehensive and very wide-ranging code of landlord and tenant legislation has been enacted, which covers such diverse topics as enabling long-term residential tenants to buy out the freehold and ensuring that relatively short term tenants have security of tenure. This latter item includes most commercial tenants and this aspect of the Landlord and Tenant Acts must be borne in mind.
3. Commercial Leases
For the most part, the Irish practice involving commercial leases follows the English practice fairly closely. This is particularly so in the larger towns and cities where in recent decades much investment has been made by major English financial institutions and retailers used to English practice. Thus the structure of a typical medium to long-term commercial lease is the same, involving extensive provisions for rent reviews, service charges, insurance, guarantees, etc. However, this must be viewed against the background of our Landlord and Tenant Acts. The points to watch here are -
(i) A commercial tenant who has been in continuous occupation for a minimum of 5 years has a statutory right to a new tenancy, and in certain circumstances to compensation for improvements made or for disturbance.
If necessary the terms of a new tenancy will be fixed by the Court, but under a recent Act (the Landlord and Tenant (Amendment) Act, 1994) the maximum term that can be granted by the Court is now 20 years (subject, however, to 5-year rent reviews) and (unless the landlord agrees otherwise) a minimum of 5 years.
(ii) These statutory rights apply to all kinds of commercial property, ranging from major developments like office blocks, shopping centres and industrial estates to small premises like a corner newsagency or sweet shop. There is one exception to this which was recently introduced by the 1994 Act and relates to premises let exclusively as an office. In respect of such a letting, the tenant can execute a renunciation of his statutory rights, which will be valid provided he receives independent legal advice. The ramifications of this exception have yet to be worked out, but the vitally important point to note is the limit to the exception. It does not apply to retail or industrial property as such property is outside the scope of premises "let wholly and exclusively as an office".
(iii) A consequence therefore of the Landlord and Tenant Acts which remains with us is the standard practice of confining many commercial leases to short terms; until recently this was for 2 years and 9 months but it has now been increased to 4 years and 9 months. At the end of a short-term lease, the landlord will, in most cases, expect the tenant to leave altogether, for fear of him acquiring statutory rights. It is considered very dangerous to try to engineer some "break" in occupation, because the courts have power under our legislation to strike down any "sham" transaction intended to deprive a tenant of statutory rights. A continuation of occupation will usually be allowed only where the landlord is prepared to accept that the tenant will, thereby, acquire statutory rights. It should also be borne in mind that a longer term lease will be granted only where the landlord accepts the automatic acquisition of statutory rights of renewal and, where appropriate, rights to either compensation for disturbance or to recouping the cost of improvements made.
This article was intended to provide general guidelines. Specialist advice should be sought about specific facts.