How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Buachaill Your Own Question
Buachaill, Barrister
Category: Republic of Ireland Law
Satisfied Customers: 10974
Experience:  Barrister 17 years experience
Type Your Republic of Ireland Law Question Here...
Buachaill is online now

Question please. Land in Republic was bought

This answer was rated:

Question for Buachaill please.
Land in Republic was bought in 1990 by parents and 9 year old son who all signed the deed for the Land Registry. It became the family home. Want to show for purposes of defending a court case that they owned as tenants in common, needing case citations. The father died, then the mother passed away leaving the property to the son now adult, but a part life interest to another adult child. The son survivor of the title now claims that he was a joint tenant and no disposition of it by the mother to anyone in her will was possible. When she made the will, it was not known or remembered that the original child was also a title holder because the purchase was 14 years before the will was drafted and the PRA neglected to put his name on the registered title along with the parents, who are noted as full owners. No one realised this at the time, and the deed only came to light several years after the mother died. The PRA have now acknowledged this error in writing. The title was changed to the son as full owner after probate of the mother’s will because she willed it to him, but the son executed a signed sealed and delivered deed for a burden of the life residency in a separate dwelling on the property in favour of the other child before he knew the details of the original purchase, and now seeks to have this deed revoked.
What case law might support tenants in common? The stamped deed for the Land Registry as it was then, signed by the vendor and three purchasers, specifies simply the transfer of the folio to the father, mother and son (who was bizarrely referred to as a spinster) without any reference to the nature of the title. Then there is a reference to the three being entitled to the beneficial interest in relation to them being Irish citizens for Section 45 of the Land Act 1965. Looks like a standard document. The elements of possession and title are present but what about interest – the son made no contribution to the cost. And would the parents be considered as holding the beneficial interest for the son in trust at the time of purchase, so the son only became a legal title holder on his majority?
1. Dear ***** *****ger, at the outset, this is purely a Question & Answer forum. It is not a full service Barrister's opinion where cases are cited to support propositions. If you want this service, then I suggest you do what everyone else does, and hire a barrister to write an opinion for yourself and stop attempting to the the impossible on the cheap! So, there will be no citations of cases in this answer. Instead, I would suggest you purchase a copy of Wylie's Irish Land Law for yourself and do what every other lay litigant does and do your own research.
2. The first thing here is that no judge is going to hold that there was a joint tenancy between the three people, the mother, father and son in relation to this initial purchase of this property. The law leans against the creation of joint tenancies as it creates injustice. So apart from the prototype situation where a husband and wife purchase a house and manifest an intention for a joint tenancy, there will be no joint tenancy created where there is a mistake about the son being included at all, and then only as a "spinister". In these circumstances, there is no "intention" manifest for a joint tenancy. Instead, it is completely the opposite. They were each tenants in common of a third share.
3. Secondly, just because the son was under 18, this did not mean the parents held his share in trust for him. That is simply confusing issues. The son simply was a one third owner. There was no need for a trust. The child simply owned his one third share along with the two other one third shares held by each of the parents.
4. The one thing you don't say is whether the father had a will or not. This is important because if the father died intestate, then the other child would have a share in the one third share of the father. You - wrongly - seem to assume that the father's share went directly to the mother. There would have to have been a will providing for this occurrence in order for it to happen.
5. Be aware that the son who is claiming to revoke the deed over the separate property has good grounds to suggest he executed this deed under a mistake of law and fact. A court will be sympathetic to this argument so long as this son is willing to allow the part life interest in favour of the other child to stand. However, if this son seeks to impose one without the other (resiling from the burden whilst seeking the benefit under the "benefit and burden" principle) the court will reject his claim.
6. Please Rate the answer as unless you Rate the Answer your Expert will receive no payment for answering your Question so there is no incentive to answer any further questions.
Customer: replied 2 years ago.
Hi Buachaill
I will rate your answer at least 3 so you will receive payment. First let me respond to your para #1
The daughter who wants to keep a roof over her head, but nothing more, is on disability with no assets. She does have a solicitor and barrister who have mostly worked pro bono, and somewhat intermittently. I am trying to help with the donkey work and plugging some gaps. Her junior is not confident about the tenant in common issue, which should defeat the son plaintiff’s case. The plaintiff has an SC, one of the most eminent in the field, and had a junior who is now an SC, with a well known solicitor. I have to wonder what they know that we don’t to be proceeding with the case, which has two days in the Circuit Court allocated. The initial letter from the plaintiff referred to the deed of transfer as creating joint tenants, even though it said no such thing, Further, at a recent motion to dismiss by the co-defendant solicitor who is the executor of the mother’s will, the judge said that the facts were clear, and the mother had no right to leave a life residency to the daughter - granted this was not a full hearing. I had looked at Wylie, not to mention Coughlan, Keating, Lyall, Cheshire & Burn, Maudsley, Gray and so on, and they focus on the conditions necessary to permit a joint tenancy, not on whether an instrument silent on that matter will result in one. There are cases where a deed purporting to establish a JT is ruled to create a TIC and vice versa, but these do not help.
That is why I was seeking relevant cases to put forward in court especially in case we got a judge with a like opinion. I see from previous answers by you that you do occasionally mention a case e.g. Lynch v Cooney re joint bank accounts, so I had a reasonable if not legitimate expectation that you would be able to provide one or two. It was also my impression from the text books that joint tenancies, where such could exist, were preferred to avoid the problems of checking title on sale, as they reduced the incidence of multiple owners going back many years. Perhaps not such a problem with registered land now.
The purpose of this question was just on the tenancy, as the case turns on this. The father’s will is for another day. Your comments on other aspects provided as background are appreciated though not required.
One question arises from your response when you refer to no intention to create a joint tenancy – if the parents had written to their solicitor at the time of the purchase along the lines that they wanted the son to become the sole owner of the property in the fullness of time, could this be evidence of intention? It seems that there may be something along these lines, but it was not included as an exhibit and neither side has looked for discovery or an order to produce.
7. The one thing I would suggest is that an application for discovery is made before it is too late. If there are letters on file from the mother or father at the time of the original purchase, you had best know about them now and not get "ambushed" by them in the running of the court case. So make an application for discovery as a matter of urgency. Particularly where you might think there is something which the other side know but which you don't know.
8. The other thing you need to realise is that this is not a straightforward "slam-dunk" case from teh perspective of hte other side. No litigant pays large fees to the most eminent SC and a senior junior (now SC) IF THEiR case was straightforward. Judges always wonder why a litigant needs the most eminent SC for a simple case in the Circuit Court. Additionally, you don't bluff, as the other side did here about the letter concerning the joint tenancy, if you have a strong case. So, there is some flaw in the ointment from their perspective. You also should realise that costs are rarely awarded in this sort of family row in the Circuit Court. So, this is not a straightforward case.
9. Finally, citing cases about joint tenancies will not win this type of action. The issue of a joint tenancy will be decided as a matter of impression by the judge. Not by legal authority. So, I appreciate you might have fallen in love with the law and read all these Land Law texts. However, there will be little law when the judge decides the issue of whether there is a joint tenancy or not. It will be a first impression type of case.
Buachaill and other Republic of Ireland Law Specialists are ready to help you
Customer: replied 2 years ago.
OK that makes sense. Thanks for your answers, I will rate yours 5 now.