Consultation Paper on the General Law of the Landlord and Tenant

12.11 There is one further, somewhat obscure, provision to bementioned and that is section 65 of the Conveyancing Act 1881. 38This is a provision which could be invoked very rarely because itapplies only to leases where the original term was not less than 300years, of which not less than 200 years remain outstanding.Furthermore no rent must be payable or at most only a peppercornrent “or other rent having no money value”. Alternatively, if asubstantial rent was originally reserved, it must have been releasedsubsequently, have become statute-barred or otherwise ceased to bepayable. Nor can it apply if the lease contained a re-entry clause forbreach of condition. It is highly unlikely that many such leases existnowadays 39 and it is difficult to see why one would be created. 40There was a short-lived practice of using it to avoid stamp duty in the1980s, but this was killed off by the anti-avoidance provisions ofsection 96(2) of the Finance Act 1986. 41 It has been argued that thesection may be used to make covenants run with the enlarged freeholdinterest, which would not otherwise run because of the restrictions ofthe rule in Tulk v Moxhay, 42 but the Commission has alreadypublished separate recommendations to deal with this subject. 43 Inview of this the Commission inclines to the view that section 65 hasoutlived its usefulness. It will, however, revisit the subject when itreviews the ground rents legislation. The Commission provisionallyrecommends that section 65 of the Conveyancing Act 1881 should berepealed without replacement.383940414243It was amended slightly by section 11 of the Conveyancing Act 1882. SeeWylie op cit paragraphs 26.12-3.The section was mentioned in the judgment of Kenny J in the unreportedcase of Atkins v Atkins High Court 30 March 1976.Note, however, that there is a precedent (F.2.15) for using it in Laffoy’sIrish Conveyancing Precedents (Looseleaf Butterworths).See now section 35 of the Stamp Duties Consolidation Act 1999.Wylie Irish Land Law (3 rd ed Butterworths 1997) paragraphs 4.085-86;Taylor “Enlargement of Leasehold to Freehold” (1958) 22 Conv 101.Report on Land Law and Conveyancing Law: (7) Positive Covenants overFreehold Land and other Proposals (LRC 70–2003).154