Key Takeaways From Our Recent Property & Litigation Seminar

Author:Ms Eve Mulconry, James Lawless, Niav O'Higgins, Danielle Conaghan, Deidre Sheehan and Keith Smith
Profession:Arthur Cox


By Eve Mulconry and James Lawless

Acquiring the freehold: Where certain statutory criteria are satisfied, tenants of long leases have a right to acquire the freehold. The tenant can seek to agree the terms for the acquisition with the freehold owner, failing which it can use the procedure set out by statute. The first step in the statutory procedure is for the tenant to serve a Notice of Intention to Acquire the Fee Simple on the landlord. Contested applications: The matter is heard in the first instance by the County Registrar. The decision of the County Registrar can be appealed to the Circuit Court, with a further right to appeal to the High Court. An appeal to the Circuit Court/ High Court is a de novo appeal (i.e. effectively a new hearing). The tenant has to prove title at every hearing, and new evidence can be introduced at every hearing. Key date: The Country Registrar/ Court will assess the tenant's right to acquire as of the date on which the Notice of Intention to Acquire is served. If the tenant has contemporaneous evidence of the use of the land on this date, the application is more likely to be successful. This evidence might include photographs/video footage/ usage reports/maps/valuations. Subsidiary and Ancillary: The tenant must show that there are permanent buildings on the land which it is seeking to acquire and any land not covered by buildings must be subsidiary and ancillary to the buildings. The County Registrar/ Court will consider both whether the unbuilt-on land is inferior/ subservient/subordinate to the built-on portion, and whether it serves to assist/supplement/benefit the built-on portion. The County Registrar/Court will be primarily concerned with use of the land as at the date of service of the Notice of Intention to Acquire. Evidence prior to the date of service may be relevant and admissible; evidence after the date of service will be more heavily scrutinised. Tip: If purchasing a leasehold interest, consider asking the freehold owner to give a statement of the previous use of the land. This might help avoid lengthy and protracted disputes should you seek to acquire the freehold interest at a later stage. NEGOTIATING BCAR CLAUSES

By Niav O'Higgins

Building Control (Amendment) Regulations 2014 (BCAR): These regulations introduced a new process around compliance with the building regulations. The BCAR regime creates new duty holders, imposes obligations in relation to the lodgement and...

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