A Critical Analysis of Void Conditions Subsequent in Irish Land Law

This essay provides a critical analysis of conditions subsequent in Irish Land Law that are liable to be held void by a court, focusing on the jurisdiction of Ireland. It begins with an introduction to the concept of conditions in land law, emphasizing their role in contracts for property sale and purchase. The essay then explores three key classes of void conditions subsequent: those affecting parental duties, those resulting in spousal separation, and those imposing restraints on marriage. Each condition is examined with reference to relevant case law, such as Dodd v. Piper and Jones v. Jones, as well as statutory provisions and enactments. The Land and Conveyancing Law Reform Act of 2009 is also discussed in the context of conveyancing reforms in Ireland. The essay further addresses hybrid estates, name and arms clauses, and conditions resulting in animosity, highlighting their implications within the framework of Irish land law. The discussion incorporates the concept of public interest and its impact on the validity of conditions. Finally, the essay concludes with a summary of the key arguments and findings regarding conditions subsequent in Irish land law.

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Law of Property

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Table of Contents
Introduction................................................................................................................................3
Freehold estate and leasehold estate..........................................................................................3
Conditions affecting parental duties...........................................................................................3
Conditions resulting in spousal separation.................................................................................4
Conditions on restraint of marriage............................................................................................4
Land and Conveyancing Law Reform Act.................................................................................4
Hybrid Estates............................................................................................................................5
Name and Arms Clause..............................................................................................................5
Conditions resulting in animosity..............................................................................................6
Public Interest.............................................................................................................................7
Conclusion..................................................................................................................................7
Reference List............................................................................................................................9

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Introduction
In land law, conditions form the essence of contracts as far as sale and purchase of property is
concerned. The conditions are to be drafted in the interest of fairness to be prevailed amongst
the parties to the contract. If the contract is to be valid, it must be enforceable by a court of
competent jurisdiction established by law. The conditions in a contract mainly act as
restrictions and barriers as far as the performance of acts and omissions are concerned. The
main objective of the essay is to present an overview of three classes of conditions
subsequent which can be declared as void by a court as far as the jurisdiction pertaining to
English common law is concerned. The relevant case laws along with the legislations,
statutes and enactments if any would also be taken into account for the purpose of
comprehending upon the three classes of conditions subsequent. The aspect of conveyancing
would also be dealt with in the essay as far as transfer of the title of immovable property is
concerned with respect to the preparation of the appropriate documents. Finally, an
appropriate conclusion would be provided thereby presenting a summary of the whole
discourse.
Freehold estate and leasehold estate
A freehold estate is a property in which the person in possession of the property can enjoy the
entitlements for an indefinite period of time. The conditions in this regard can be placed in a
fee simple defeasible estate. Such conditions subsequent imply when an event occurs
contrary to the property deed, the entitlements would be transferred back to the person
granting the freehold1. However, such conditions may be held void by the court. A leasehold
estate is a property in which the person in possession of the property can enjoy the
entitlements only for a certain timeframe unless specified by lease for lives whic has been
abolished by the Land and Conveyancing Law Reform Act of 2009 in Ireland. As a result, the
conditions in this aspect can be held void by the court.
Conditions affecting parental duties
If a condition subsequent is imposed in a deed of conveyance with reference to the transfer of
the title of the property which involves the child being separated from the care of the parents,
such conditions are liable to be held void by the court. Such an aspect is applicable even
when the parents are divorced or judicially separated. It implies that forfeiture of property by
children without any valid reason with reference to condition subsequent are also liable to be
held void by the respective court of competent jurisdiction. Such conditions subsequent
generally interfere with the welfare of the child. In the case of Dodd v. Piper, the court held
that any condition subsequent which implies that a child should not reside with his father is
void as it cases a huge detriment with reference to the welfare of the child2. It has hitherto
been one of the landmark cases relating to void conditions. The judgment further implies that
1 Rachael Walsh and Lorna Fox O’Mahony 2018
2 Dodd v Piper [1946] 2 All ER 503.

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such kinds of conditions imply the destruction of the institution of family as far as child
welfare is concerned. As a result, courts can refer to this judgement while making an
appropriate conclusion as far as deriving a comprehensive solution is concerned.
Conditions resulting in spousal separation
Any kind of condition subsequent that is enshrined or envisaged in a deed of conveyance
with an objective to result in the separation of spouses can be held void by the respective
court of competent jurisdiction3. The condition subsequent which is intended to separate
husbands and wives are ought to be declared void by the respective court of competent
jurisdiction. However, the facts of the instances relating to such separation must be analysed
in an appropriate manner as far as the welfare of both the husband and wife is concerned
upon their separation. Such kinds condition subsequent are purported to encourage and
promote dissolution of marriages without any kind of substantial justification in a reasonable
manner. As a result, it may lead to the diminishing of the concept of marriages. In cases
where there is a mutual agreement with reference to the separation, any events occurring after
such separation has taken place shall be subject to invalidation as far as the powers of the
respective court of competent jurisdiction is concerned. The conditions in these kinds of
aspects are to be treated as void since it would lead to the vanishing of the very essence of the
concept of familial setting with regard to property ownership.
Conditions on restraint of marriage
Any kind of condition subsequent which is incorporated in the deed of conveyance in
question thereby pertaining to the restraint on marriages must be declared as void by the
respective court of competent jurisdiction. Invalidation of the conditions can only be made by
the respective court of competent jurisdiction if it is established from the chain of events with
reference to the transfer of the property that the outcome would quite likely result on the
curtailment of marriage. However, partial restraint may be valid with regard to the beneficial
aspects relating to the condition subsequent is concerned. In the case of Jones v Jones, The
Queen’s Bench Division of the High Court of Justice for England and Wales held that any
kind of condition with reference to the transfer of property which results in the restraint to be
imposed upon marriage after such kind of transfer has taken place cannot be valid as it would
result in the detrimental effect over the institution of marriage4. As a result, it is imperative
that a court of competent jurisdiction has the discretionary power with reference to the
holding of such conditions as void as far as the addressing of the concerned issues in an
appropriate manner is concerned.
Land and Conveyancing Law Reform Act
The Land and Conveyancing Law Reform Act of 2009 has been enacted with an objective to
introduce various kinds of reformations with reference to conveyancing in Ireland. It has
3 Antonia Layard 2018
4 Jones v Jones (1876) 1 QBD 279 (DC).

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played an important role with regard to the removal of hurdles and impediments’ concerning
the claiming of interest titles as far as ownership of property is concerned with reference to
the holding of titles5. Sub-section 3 of Section 11 of the Land and Conveyancing Law Reform
Act of 2009 implies that a leasehold estate is the one which occurs when there is a tenancy
for any timeframe or subsequent period. Along with the elimination of the concept of leases
for lives, the Land and Conveyancing Law Reform Act of 2009 is also intended to the
abolition of fee tails which imply that the transfer of property is restricted by a settlement
deed and instead, passes on through the functioning of legal mechanism to a heir as implied
by the settlement deed concerned with regard to leasehold estates. It is not applicable to
freehold estates which are mainly governed by the concept of fee simple as far as the
optimum level of ownership over land is concerned. In this aspect, governmental policies
may impose limitations.
Hybrid Estates
The concepts of hybrid estates imply that the estates in question have a perfect blend of the
features of both leasehold and freehold estates. It is imperative that some part of the estate is
under the ambit of freehold which means free from many kinds of restrictions while some
part of the estate is under the purview of leasehold as far as the conditions and obligations are
concerned. The concept of freehold implies that the person who is in ownership or possession
of the property can be benefitted from the property for lifetime, In this regard; restriction and
conditions can be imposed by the policies in force. It implies that in a freehold estate, direct
sale and purchase of property takes place between the vendor and the purchaser. However, in
a leasehold estate, entitlement with regard to property rights can be utilized only for a specific
period of time thereby implying lease or tenancy6. Apart from leasing and tenancy, licensing
of property is also one of the most important aspects of leasehold estates. In a hybrid estate,
both of the features are applicable with regard to the deed of conveyance concerned
specifying the extent of the applicability of freehold and leasehold aspects.
Name and Arms Clause
In contracts governed by the common law of England and Wales, it is a clause which implies
that a person to whom property is given would be considered as a settler or a testator on
condition that if such a person does not assume the last name and arms of a settler or a
testator either wilfully or negligently or does not continue to do so, the estate would be
delegated to the next person who is known as the remainderman. In property law, a person
who has the right to claim the title of the property when the estate is terminated by the
previous owner is called remainderman7. Such a person holds title in the remaining portion of
the property concerned with an objective to gain possession in the future. The name and arms
clause further implies that contingent remainders are to be preserved as far as the entitlement
to the property in question is concerned. The contingency of remainder is determined
through the factors concerning unknown or unborn people and termination of the previous
5 Una Woods 2016
6 Ian Williams 2015
7 William Reynell Anson, 2010

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estates naturally8. A person can be a remainderman only when the term ends or a person
holding title of the property dies as far as the property law of the United Kingdom and
countries under the purview of the English common law is concerned. Such a condition is
liable to be declared void by courts as it is imposed upon a person thereby leading to
restrictions and limitations over the person thereby contravening the interests concerning
equity and fairness as it implies no compensation to be awarded to the settler or testator by
the remainderman9. The incapacity to assume arms and last name is also not taken into
consideration meant by the name and arms clause. It also implies the unfair benefit to be
claimed by a person who is the remainderman even when the original owner has not died. It
is also observed that the element of consideration in a contract as far as exchange is
concerned10. In a gift deed with regard to land law, love and affection would be deemed as
consideration. In the classic English case of Currie v Misa, it was held by the Exchequer
Chamber the banker Currie had the right to claim compensation of the amount from Misa as
far as the element of consideration in a contract is concerned11. The decision of the Exchequer
Chamber was subsequently upheld by the House of Lords.
Conditions resulting in animosity
The court can hold those conditions to be void which may lead to the creation of conflicts
and disputes between the parties to the contract12. Such conditions are extremely detrimental
to the establishment of fiduciary relationships amongst the parties, particularly in the aspect
of contracts related to property13. In order to address the issues related to conveyancing in
Ireland with reference to these kinds of conditions, the Land and Conveyancing Law Reform
Act of 2009 has been passed thereby abolishing the concepts associated with fee entails and
leases for whole life taking account of Section 13 and Section 14 respectively14. It has been
enacted with an objective to eliminate the scope of incorporating such conditions.
Additionally, if conditions are made and imposed with an intention to create animosity
amongst the parties, they would have a high probability of being subject to litigation which
may be quite tumultuous in nature as far as the resolution of disputes are concerned15.
Furthermore, these kinds of conditions are contrary to humanistic approach as it widens the
gap between the parties to the contract as far as their amicable relationship is concerned.
These conditions also violate the principles concerning natural justice as far as equity,
fairness and good conscience are concerned16. Unreasonably skyrocketing property prices and
the imposition of heavy property taxes may create animosity amongst the parties to the
contract17. A very short duration of cooling of periods also results in the advent of animosity
amongst the parties to the contract.
8 Alexis De Tocqueville, 2017
9 Padraic Kenna, 2016
10 Simon Gardner, and Emily MacKenzie 2015
11 Robert Abbey and Mark B. Richards 2017
12 Judith Bray 2016
13 Mark P. Thompson and Martin George 2017
14 Land and Conveyancing Law Reform Act 2009
15 Barbara Bogusz, and Roger Sexton, 2015
16 Ben McFarlane, Nicholas Hopkins, and Sarah Nield 2015
17 McKay, Stephen, and Michael Murray 2017

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Public Interest
Any condition subsequent in contract which is made with an outcome of negative effect with
reference to public interest is liable to be declared as void as far as the court of competent
jurisdiction is concerned. The constitutionality of such conditions must be taken into account.
The court has the discretionary power to declare any condition subsequent if it interferes with
the interests of the public. For example, trespassing into a land maintained by public authority
must result in prosecution as it would lead to encroachment. Therefore, such kind of
condition must be declared unconstitutional as far as right to life and personal liberty is
concerned. The class action suits filed by the litigant concerned would play an extremely
vital role in the declaration of the conditions as void as far as the rights of the general public
is concerned. The right to life and personal liberty along with the right to privacy can be
taken into account as far as the entitlement guaranteed under the respective constitution is
concerned. With reference to the United Kingdom and Ireland, the European Convention on
Human Rights may be applied and implemented18. At the domestic level, the Human Rights
Act of 1998 in the United Kingdom and the European Convention on Human Rights Act of
2003 in Ireland would play an extremely important role as far as the protection and security
of the constitutional rights are concerned19. As a result, it is to be made sure that public
interest must not be compromised20.
Conclusion
As implied from the aforesaid discourse, it can be concluded by stating that the conditions
subsequent in a contract relating to property and easements which are to be declared as void
by the court of competent jurisdiction established by law are justified and appropriate. The
above discourse also helps in the identification and determination of loopholes and grey areas
with reference to conveyancing as far as such conditions subsequent are concerned. The
appropriate statutes, legislations and enactments have also been taken into account as far as
comprehending upon the conditions subsequent is concerned. Furthermore, the relevant case
laws have also been discussed and demonstrated as they are purported to act as appropriate
binding legal authorities for the court of competent jurisdiction established by law as far as
the guiding principles to be followed in order to conclude upon a decision is concerned. The
discourse has also presented an overview of the basic principles governing natural justice as
far as equity and fairness are concerned. It is also imperative from the aforesaid discourse
regarding the importance of documentary evidence as far as the drafting and execution of an
agreement is concerned.
18 European Convention on Human Rights 1951
19European Convention on Human Rights Act 2003
20 Human Rights Act 1998

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Reference List
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York: Oxford University Press, USA, 2015.
Bray, Judith, Unlocking land law, Abingdon: Routledge, 2016.
De Tocqueville, Alexis, Journeys to England and Ireland, Abingdon: Routledge, 2017.
Dodd v Piper [1946] 2 All ER 503.
European Convention on Human Rights 1951
European Convention on Human Rights Act 2003
Gardner, Simon, and Emily MacKenzie, An Introduction to Land Law, London: Bloomsbury
Publishing, 2015.
Human Rights Act 1998
Jones v Jones (1876) 1 QBD 279 (DC).
Kenna, Padraic, "Comparing Mortgage Law in Ireland and Spain," Contemporary Housing
Issues in a Globalized World, Abingdon: Routledge, 2016. 84-112.
Land and Conveyancing Law Reform Act 2009
Layard, Antonia. "26. Property and planning law in England: facilitating and countering
gentrification." Handbook of Gentrification Studies (2018): 444.
McFarlane, Ben, Nicholas Hopkins, and Sarah Nield, Land law: text, cases, and materials.
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McKay, Stephen, and Michael Murray, eds. Planning Law and Practice in Northern Ireland,
Abingdon: Taylor & Francis, 2017.
Thompson, Mark P., and Martin George, Thompson's Modern Land Law. Oxford University
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Walsh, Rachael, and Lorna Fox O’Mahony. "Land law, property ideologies and the British–
Irish relationship." Common Law World Review 47.1 (2018): 7-34.
Williams, Ian. "The Certainty of Term Requirement in Leases: Nothing Lasts Forever." The
Cambridge Law Journal 74.3 (2015): 592-609.

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Woods, Una. "Adverse Possession and Unadministered Estates: An Unfair Solution to a
Redundant Irish Problem." N. Ir. Legal Q. 67 (2016): 137.