I propose to highlight the main aims of this Bill and identify how each is achieved. This Bill is designed to get rid of obsolete law. It is surprising that in the 21st century so much of our basic land and conveyancing law is rooted in feudal concepts introduced by the British Crown hundreds of years ago. One of the objects of this Bill, therefore, is to get rid of that old feudal nonsense. It does that by abolishing the notion of feudal tenure. It revises considerably the sorts of estates one can have in land. Estates are what one owns in land. One of the basic principles of our land law is that one does not technically own the physical entity of the land. What one owns is some estate or interest in the land. One has a freehold interest or a leasehold interest. This Bill aims to simplify the concept of estates and interests. It retains that but it gets rid of the notion of feudal tenure. It gets rid of ancient estates such as fee tail estates which are rooted in old feudal concepts. There is no place for such things in Ireland in the 21st century. It also gets rid of old rules that were essentially based on the feudal system, such as the complicated rules that govern how far one can settle one's property in the future and the rule against perpetuities. It may not mean much to members of the committee, but every lawyer's heart sinks when the rule against perpetuities is mentioned because it is an exceptionally complicated rule that is very difficult to apply, is not easily understood, and traps lawyers and their clients in all sorts of places where, really, it should not exist. When drafting a trust, a will or a settlement of any kind relating to property, one must keep in mind this wretched rule against perpetuities. Most people take the view nowadays that it no longer serves any useful purpose and that the simplest thing to do is to get rid of it. That is what this Bill does.
In addition to getting rid of obsolete law, the Bill also replaces hundreds of old statutes that still underpin much of our law. These are primarily statues passed by the British Crown before 1922 and applied to Ireland over the centuries. We ploughed our way through all of these old statutes with a view to identifying which of them served any useful purpose in modern times. We took the view that the vast majority did not serve any sensible purpose, so the Bill simply repeals them. However, some of them serve a useful function, particularly those that were enacted in the 19th century such as the Conveyancing Acts of 1881 to 1890 and 1911. These Acts still underpin much of our basic conveyancing laws, so we identified the provisions within those Acts that are still relevant and we drafted the provisions that would replace them. We hope to replace them in a more simplified form, but I will come back to that issue later.
This is an exercise in consolidation rather than codification. This Bill is not intended to try to put all the law relating to land and conveyancing into one statutory form. It does not attempt to do that because our law is made up of a whole mixture of things in this area. These include statute law and a great deal of common law, by which I mean law which was developed over the centuries by the courts. A large part of that law is known as equitable jurisdiction, which is where the courts exercise an ancient jurisdiction to try to temper the rigidity of the law. A consequence of this is that in recent times, the courts have recognised that people have property interests that are often not easily identifiable. For example, somebody is a legal owner of a property, but when that property was purchased, it may be that some other person, such as a spouse or relative, paid a substantial proportion of the purchase price. However, the legal title is in the name of only one person. Due to the direct financial contribution of the other person to the purchase of this property, the courts would find that he or she should be regarded as having an equitable interest in the property commensurate with his or her contribution. If the person contributed 50% of the purchase price, he or she would be regarded as having a 50% share in the property, even though the legal title of the property would be in the name of the person who was put in the legal title. That person would be regarded as holding the legal title on trust for both people.
Such an example shows how the courts exercise their equitable jurisdiction and build up a body of law. We would not wish to restrain the courts in exercising that sort of equitable jurisdiction. This Bill preserves that jurisdiction and we are not trying to embody all the law in it. We have gathered up all the statutory provisions that hitherto have been scattered throughout these old statutes. It is a consolidation, but it does not codify the law as it not a complete statement of what the law is.
I wish to deal with the aspect of the Bill that deals with reform and modernisation and which was the subject of the consultation paper and the subsequent report to which the Chairman referred earlier. We are engaged in a simplification of the substantive law. As one would expect with centuries of development, the law has become extremely complex and this Bill aims to simplify various aspects of the law. Parts 2 and 3 of the Bill deal with estates and interests that one can hold in land, future interests and so on. Part 4 is headed "Trusts of Land". That Part which I think includes only five sections replaces in their entirety the Land Acts of 1882 to 1890. It is, therefore, a considerable simplification of the law.
Part 7 of the Bill is headed "Appurtenant Rights". It deals with matters such as rights of way, the right to cut turf and so forth, what are known in law as easements and profits. We aim to simplify the law particularly; for example, the law dealing with the way in which one can acquire these rights by lone user, what is known as prescription. It replaces the Prescription Act 1832 which was applied in Ireland by the Prescription (Ireland) Act 1858. It has the reputation of being the worst drafted statute ever to appear on the Statute Book. If members wish to give themselves a headache, they should try reading it. Even lawyers cannot quite understand it. Part 7 of the Bill will replace the Act with a much more simple and straightforward measure.
With regard to simplification of the substantive law, Parts 9 and 10 of the Bill deal with mortgages and judgment mortgages. This is an attempt at simplifying the law. We have decided that all mortgages will essentially be regarded as charges on land; there will no longer be this ancient system, whereby the person borrowing the money transfers the title of the property to the lending institution and when the mortgage is paid off, it is transferred back to the borrower. There is no need for this because under the registered land system, it has always been the case that all one has is a charge on the property, as the title remains with the borrower. Under Part 9, this will now become the general rule, whether it is registered or unregistered land. The law relating to judgment mortgages is exceptionally complicated and we are attempting to simplify it.
The next aspect of reform and modification is what I call the correction of defects or the filling in of gaps in the law. Because our law has been developed in a haphazard way with the courts from time to time pushing through new developments but not necessarily doing so in a comprehensive way, it does not always develop in the way it should. I refer to the law relating to freehold covenants where somebody sells a piece of freehold land. He or she wants to impose a covenant because he or she may be retaining adjoining land and wishes to govern what use is made of the land he or she has sold. He or she, therefore, imposes a covenant, saying, for example, it can only be used for private residential purposes or that no more than one house can be built on it. This is very common. However, the law governing the matter was never developed properly. As a consequence, it is often difficult to enforce such covenants against a successor in title, whereas generally leasehold titles will always bind a successor in title, a landlord or tenant. We will modernise the law in that respect. Various other provisions to deal with the matter are scattered throughout the Bill to fill in gaps and correct defects.
I refer to simplification of language. We have tried in the Bill to recast the law in simple and straightforward language. However, there were occasions when we faced something of a dilemma. We are replacing statutory provisions such as the ones in the Conveyancing Acts and certain Land Acts which I mentioned. Often such provisions are still relevant today and we want a replacement provision that continues to reflect that relevance. They have been subject to interpretation by the courts during the years. There is, therefore, a danger that if the language is changed too much, it will create uncertainty. People will wonder if the language used or the law has been changed. Where we are preserving the basic law, we feel constrained to preserve the existing language because it has been subject to interpretation. In the case of the very old statute provisions, we have changed the language used because it is often completely outdated. It was sometimes the case that provisions were so complicated that we could not possibly stomach reproducing them.
I can give the committee a good example of that. The provisions in section 7 of the Conveyancing Act 1881 deal with conveyance of title, which are implied in conveyances of land. I defy anybody in this room, lawyer or otherwise, to make any sense of section 7 of the 1881 Act. It runs to hundreds of lines of verbiage and even the most skilled conveyancing lawyer would find it very difficult to make sense of it. We have not reproduced that, I assure the committee. We have recast it considerably. In essence, that is what the Bill is all about.
One other point is that the Law Reform Commission is engaged in several projects, one of which is known as the e-conveyancing project. This project is designed to simplify the whole conveyancing process so that it can be done electronically and, generally speaking, without using much paper. We have always regarded this Bill as a forerunner to that. E-conveyancing is concerned with speeding up the process of land transactions but there is no point in doing that until one sorts out the law that deals with such transactions in the first place. That is the substantive law. That is what this Bill is concerned with — it is tidying up the basic law first and then one can move towards considering things like the development of an e-conveyancing system.