Modern Studies in Property Law, Volume 11

Sue Farran, Russell Hewitson, Adam Ramshaw, Sue Farran, Russell Hewitson, Adam Ramshaw

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509939282
• Edition: 1
• Topic: Droit
• Subtopic: Droit des biens

What are the contemporary challenges faced by property law as we enter the 2nd decade of the 21st century? This collection brings together the research and perspectives of an international body of academics and practitioners to consider these challenges and how even familiar topics must develop to meet new demands and developments. As with previous books in the Modern Studies in Property Law series, this volume adopts a broad approach to topics encompassed by 'property law' in the firm belief that the boundaries that divide are shadowy at best and constantly moving in the endeavour to keep up with what is 'modern'. This collection looks at 5 themes:
- Comparative perspectives, including a chapter on grazing and cropping rights in Northern Ireland, and analysis of the anomalies of the English trust law as seen from a civil law perspective;
- Taking and alienating property, including a chapter on bankruptcy and the family home;
- Modern dilemmas, including chapters on trusts in virtual currency and on smart homes;
- Old chestnuts – new challenges, including analysis of the mortgage law reform in Scotland and a chapter on the ouster principle in common law jurisdictions; and
- Wills, death and other morbid topics, with chapters on English succession law and the role of knowledge and approval in retrospective assessments of capacity. Unfortunately, the COVID-19 pandemic prevented the 13th biennial conference being held in 2020 as planned but despite this, the authors and co-editors persevered to produce this interesting and diverse collection.

Part I

Comparative Perspectives

1

Is the Grass Always Greener? Understanding Grazing and Cropping Rights in Northern Ireland

BRÓNA MCNEILL

‘The dealing called conacre in this country is a very peculiar one.’

Pigot CB in Booth v McManus (1861)¹

I.INTRODUCTION

In Ireland, a landowner who wishes to convey grazing or cropping rights to a third party may do so using a conacre agreement. Conacre is historically a short-term, informal right to use farmland belonging to someone else, and is understood to be unique to Ireland. Conacre is also a chronically under-researched area, often mentioned as being incidental to exploration about ‘more important issues’.² Despite the lack of scholarly attention, the use of conacre is prevalent in contemporary farming in Northern Ireland (NI). Today, approximately 28 per cent of agricultural land in NI is taken under a conacre agreement.³ Discussions in the NI Assembly chamber have identified conacre as ‘part of normal agricultural practice’,⁴ and claimed that any threat to the system would ‘break up rural communities and … help to destabilise rural society’.⁵ References to conacre are also peppered throughout Irish literature depicting rural farming life. For instance, celebrated Belfast-born poet John Hewitt wrote a poem entitled ‘Conacre’, in which he highlights that the ultimate ambition for the rural farmer is to ‘add another boggy acre to the name’, in reference to conacre land.⁶ Conacre might be described as an agricultural – even a cultural – institution in NI.

Despite this, there is an overwhelming sense from both historical and contemporary commentary that conacre is decidedly problematic. This ranges from it being labelled in the nineteenth century by one commentator as ‘pernicious’⁷ to being damningly described in the 1970s as ‘undoubtedly the worst possible way to farm agricultural land’.⁸ More recent policy documents identify conacre as ‘archaic’,⁹ suggesting that the system ‘impedes long term planning’,¹⁰ and that ‘the traditional arguments in favour of conacre have lost their attraction’.¹¹ In terms of agricultural land management, it seems that the grass is greener on the other side – farmers are being urged to move away from the use of conacre in favour of long-term agricultural tenancies.

The breadth of the problems associated with conacre, combined with the explicit advice to restrict its use, inevitably raises the question of why it is still so prevalent in NI. Relatedly, from a policy perspective, how successful is the campaign to move away from conacre likely to be? Answering these questions is vital in the context of post-Brexit policy arrangements regarding land use in NI and involves an interrogation of the fundamental nature of the conacre system. This chapter will offer an original account of conacre, clarifying its functionality from a property law perspective and arguing that conacre may be viewed as a specific, self-contained landholding relationship, which plays a key role in agricultural landholding in NI.

Section II considers conacre from a historical perspective and provides a useful backdrop for section III, which discusses in detail the difficulties that have long been associated with the system. The chapter moves on in section IV to consider whether a clear concept of conacre may be deduced, concluding that this is a difficult and highly complex task due to the fluid and ever-changing nature of the system. In light of this, the chapter goes on in section V to explain the contemporary use of conacre in NI – analysing what this indicates about agricultural landholding in this jurisdiction and the impact it may have on post-Brexit agricultural policy. The chapter concludes by suggesting that to underestimate the value of conacre in future policy arrangements may have serious and unintended consequences for the NI agriculture industry, and for land law in NI more broadly.

II.A HISTORY OF CONACRE

The precise origins of conacre are unclear, but the earliest reliable accounts appear to date from the first half of the nineteenth century. The Devon Report in 1845 declared that conacre ‘prevails in a greater or less degree in every part of Ireland’.¹² The term ‘agistment’ is often used alongside conacre. Traditionally, the distinction between conacre and agistment has been that the former relates specifically to the cultivation of crops, whereas the latter refers to grazing agreements.¹³ ‘Agistment’ may be a familiar term to some, but, as Alexander notes, the meaning it has acquired in Ireland differs from the way in which it is understood in England, where it relates specifically to the grazing and keeping of animals.¹⁴ Alexander goes on to clarify that ‘conacre’ has come to be used as an overarching term describing a situation whereby one party makes agricultural use of another party’s land – whether this is for growing crops, silage or grazing livestock.¹⁵ Certainly in terms of the rights created by conacre and agistment agreements, it has been observed that there is ‘no significant jurisprudential difference between them’.¹⁶

The informal arrangement implied by conacre will ordinarily be on a short-term basis, generally for the length of one season, which has led to it being colloquially termed the ‘eleven-month take’.¹⁷ In the 1950s, Proudfoot noted that conacre land was usually publicly auctioned, most frequently in November, during the ‘annual “ritual of conacre”’.¹⁸ It is widely reported that the word ‘conacre’ originated from the term ‘corn – acre’, supposedly reflecting the fact that it was concerned with small plots of land, usually for growing just one crop. It is submitted here that the term is more likely to derive from the gaelic ‘conartha’, which translates as ‘an agreement’ or ‘a contract’.¹⁹ It is also reported that, in this early version of the system, the plots of land concerned would often have no boundaries, constituting simply a strip or furrow in a larger field.²⁰

Conacre has been variously described as ‘a partnership in cultivation’,²¹ and ‘a system working to the advantage of all contracting parties’.²² Inherently useful for landowners unable – or unwilling – to farm their own land, it was also a critical lifeline for the landless labouring class in Ireland in the early part of the nineteenth century. The system provided a means by which labour could be traded for the use of a small portion of land, enough to grow food to feed a family. Moore notes that ‘A patch of ground, no matter how small, offered the prospect of survival; the conacre system was the only method by which that land could be made available’.²³ In this way, there is some suggestion that conacre came about as a response to the lack of money circulating in the Irish rural economy.²⁴ There is also a sense that conacre had a strong social value by providing families with a sense of belonging through being tied to a particular plot of land. It is even recorded that under some conacre arrangements it was possible to ‘throw up a habitation’.²⁵

Crucially, the courts have been clear and consistent in establishing the most fundamental principle of a conacre agreement – it does not create a tenancy. The most often-cited authority for this principle²⁶ comes from Crampton J in Dease v O’Reilly, who declared that a conacre contract ‘is not a demise of the land … an estate in the land, [or] … a tenancy’.²⁷ The logic behind the learned judge’s position is rooted in the character of the agreement itself, which relates to a crop being planted and harvested. For this reason, Crampton J determined that the beginning and end of the ‘tenancy’ would be impossible to define. Cultivating crops like potatoes, for example, may require both planting and harvesting at various points throughout the duration of the season.²⁸ It should also be noted that the requirements for growing potatoes as an agricultural crop may have some influence on the popularity of conacre, as a short-term and informal arrangement. Potatoes cannot be grown on the same land in consecutive seasons, but should be rotated to avoid disease, thereby changing the annual land requirements of individual farms.²⁹

The few references to conacre that exist in legislation also make the important distinction between conacre and agricultural tenancies.³⁰ In light of this, some commentary suggests that conacre’s critical role has always been to provide a means of circumnavigating the rigours of landlord and tenant law,³¹ avoiding a situation whereby a tenant will inadvertently obtain some ‘practically permanent right of occupation at an inadequate rent’.³² This perspective certainly has legitimate historical roots, harking back to the Land Purchase Scheme – through which Irish tenant farmers at the end of the nineteenth and beginning of the twentieth century were assisted in purchasing the freehold estate in their farms. Much of the relevant legislation contained specific rules against subletting of land purchased in this way.³³ As Wylie notes, ‘The result of the land purchase scheme has been, of course, that agricultural tenancies are now extremely rare’.³⁴ The 1971 Survey of NI Land Law recorded the lasting uneasiness amongst the farming community a...