Today, in Buncrana Circuit Court, on an application by Donal McGuinness BL, instructed by MacBride Conaghan, commonage was sub-divided by Judge John O Hagan in what may be one of the first cases in the County seeking Partition under the 2009 Land Act. With Commonage issues in the news due to worries of financial corrections being imposed by EU Commission for under use of land, it is a welcome development to see the new Act being successfully invoked to benefit landowners.
The Land Commission created and granted commonage grazing rights to Irish tenants with smallholdings during the period of land reform from the end of the 19th Century until the 1980s. Commonage is land held in common ownership on which two or more land owners or farmers have grazing rights. Access to a given commonage is restricted to the owners who have the legal right to exclude others not having the rights. As none of the owners have the right to exclude other common owners or exclusively use any part, there is little incentive to improve these lands and these lands are generally under utlized. The Land commission operated a scheme to partition these lands into separate ownership where one or more of the co-owners could apply to the Land Commission to have the commonage divided compulsorily under section 24 (3) of the Land Act, 1939. When the Land Commission was abolished, there was no procedure to compel partitioning into separate interests until the 2009 Land and Conveyancing Act, which became law in 2010.
Our Firm was instructed in respect of local hill land where there were 14 shares. Land being land, the physical sub-division and agreement of the various plots was never going to be easy. By the time the plots were agreed the Land Commission had been abolished. There was no mechanism left to subdivide, apart from all 14 owners entering into a legal Voluntary Deed of Partition. For this to happen, all owners had to have their title affairs in order and their commonage rights recorded on their title deeds. This proved impossible as some of the owners had died.
With the New Land and Conveyancing Act becoming law in 2010, Geraldine Conaghan solicitor saw a new way to resolve the matter. Local Barrister Donal McGuinness Bl. accepted the challenge of drafting proceedings to seek Partition under section 31 of the 2009 Act, despite its novelty. The section had never been before invoked to divide commonage.
In the end, the court order was granted quietly today, on the Application of Barrister Donal McGuinness, in Buncrana Circuit Court, its significance known only to the few involved in the long saga or those other lawyers present with an interest in Land Laws. This appears to be the first time it was used in County Donegal, but no doubt will not be the last.