Covenants – Effect of Acquisition of fee simple on Covenants

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1. Covenants where the Fee Simple is acquired outside the Landlord and Tenant (Ground Rents) Act 1967 and the Landlord and Tenant (Ground Rents)(No 2) Act of 1978

In all such cases it is to be accepted that none of the covenants created by the lease have survived the merger. If the deed acquiring the fee simple interest purports to preserve, create or recreate a covenant the case is to be referred to the Deputy Registrar. The Affidavit of Discovery is to be relied on completely and no query is to be issued regarding the possible continuation of any covenant whether a “Building Scheme” implied covenant or a conventional lease covenant.

2. Covenants where the Fee Simple is acquired under the Landlord and Tenant (Ground Rents) Act 1967 and the Landlord and Tenant (Ground Rents)(No 2) Act of 1978

It is to be accepted without question that no covenants created by the lease, other than “amenity” covenants survive the acquisition of the fee simple.

The intention of section 6(1) of the 1967 Act was that the conveyance of the fee simple to the lessee was a conveyance free from encumbrances and accordingly that the only covenants and conditions in the lease that survived on the acquisition of the fee simple under the act were those exempted by section 31 of the 1967 Act. Prior to 1 August 1978, being the operative date of the Landlord and Tenant (Ground Rents) (No 2) Act of 1978 it was necessary to examine the lease to ascertain what covenants (if any) existed relating to rights of way, drainage, sewerage or other right necessary to assist land other than the lands demised by the lease and register such of them as continued to affect the lands by virtue of section 31 of the 1967 Act with the assent of the purchaser of the fee simple under the Act.

Section 28 of the Landlord and Tenant (Ground Rents) (No 2) Act of 1978 which came into effect on the 1 August 1978, repealed section 31 of the 1967 Act and changed the situation as to all such exempted amenity covenants by providing that all such covenants which continued in force following acquisition of the fee simple were burdens which affected the lands without registration under section 72(1) of the Registration of Title Act 1972.

So after the 1 August 1978 the following covenants (as detailed in section 28(2) of the Landlord and Tenant (Ground Rents) (No 2) Act of 1978) became burdens which affect without registration under section 72 of the Registration of Title Act 1964.

  • those which protect or enhance the amenities of any land occupied by the immediate lessor of the grantee.
  • those which relate to the performance of a duty imposed by statute on any person
  • those which relate to a right of way over the acquired land or a right of drainage or other right necessary to secure or assist the development of other land.

Note: Section 77 of the Registration of Deeds and Titles Act, 2006 amends section 28 referred to herein. Under the existing provisions where a fee simple was acquired, not only covenants within the lease under which the land was held are extinguished (save for those specified in section 28(2)) but also collateral covenants are extinguished. This amendment made clear that only covenants in the lease under which the person held the land (save for those specified in section 28(2)) are extinguished. It also provides that new covenants may be entered into with the agreement of the person acquiring the fee simple. This amendment took effect from the 27th of February 2006.

Frank Treacy
Deputy Registrar
27 November 2009
Updated 01 February 2013