“It’s giving colonialism”: Ireland still owes rent to dukes and earls

More than a century after independence, the Irish State continues to owe annual ground-rent payments connected to aristocratic estates – to earls and dukes – and historic landowners for some public properties.

The amounts are generally modest, according to a response to a parliamentary question from Green Party TD Roderic O'Gorman.

The response from independent TD Kevin Moran, Minister of State at the Department of Public Expenditure included a table with details the ground-rent leases held by Office of Public Works, and the annual rents payable.

Figures for rents payable ranged from a token few cent to about €420 a year, and included payments associated with names such as the Earl of Pembroke, the Duke of Leinster, the Earl of Wicklow, and the Earl of Meath.  

"The whole system is giving colonialism," O'Gorman says. "It's a bit mad that the Office of Public Works, which is part of the Irish State, is paying [ground rents] for buildings that the State has occupied for years."

Although, even though the OPW lists these rents as payable, some of the named beneficiaries say they haven't been getting them.

Ground rent is not an ordinary rent for occupying a building.

It usually arises where the person or body using a property owns, or has the benefit of, a very long lease but does not own the underlying freehold – literally for the ground on which property is built.  

A small annual payment remains due to the landowner who retains the underlying freehold.

Ireland largely brought the creation of new residential ground rents to an end through the Landlord and Tenant (Ground Rents) (No. 2) Act, 1978.

The same legislation created a mechanism through which qualifying leaseholders can purchase the fee simple, or freehold, instead of continuing to pay rent.

Small payments, significant control?

Professor John Wylie, an expert in Irish land law, says the cash value of the rent may be the least important part of a historic lease.

The document may also contain covenants restricting how the land can be used, altered or redeveloped, he says.

"The value often to the landowner is not the ground rent that you're getting," he says. "It's the right to enforce covenants that may be contained in the original lease, so you can control what use is made of that land."

That means a public authority could obtain planning permission for a development but still require its original landlord's consent, potentially involving negotiations or an additional payment, he says.

Wylie says the State may have little incentive to disturb an arrangement where the annual rent is negligible, the lease is secure, and the property is expected to remain in the same public use for the long term.

The administrative and legal work involved in purchasing a freehold may be disproportionate to the immediate savings, he says.

That calculation can change if a building must be redeveloped, sold or put to a different use, he says.

So, a nominal recurring payment may represent an enduring private interest in a valuable public site, he says.

Patrick Walsh, associate professor in eighteenth-century Irish history at Trinity College Dublin, describes the payments as traces of an older pattern of landownership still embedded in the modern state.

Some sites may have passed from one public use to another over many years, leaving a complicated ownership history that can be difficult to trace, he says.

Walsh distinguished between rents actively pursued by an estate and those continuing through routine accounting.

An estate may no longer consider a tiny payment worth collecting even though the lease remains in existence.

The legacy extends beyond state buildings, Walsh says.

Estates historically associated with the Earl of Pembroke and the Earl of Meath shaped parts of Dublin, where land was leased for construction rather than sold outright.

Walsh says institutions have sometimes chosen to relinquish small ground rents because collecting them creates more trouble than income.

Trinity College Dublin, which once held extensive property interests across Ireland, continued to receive some ground rents into relatively recent times, he says, but the cost and inconvenience of collection ultimately outweighed their value.

Who are we actually paying?

The Earl of Pembroke, for example, is owed every year €1.27 each for both 88 and 89 Merrion Square, and €19.68 for 31 Fitzwilliam Place, according to figures provided to O’Gorman, the Green Party TD.

However, when contacted, a spokesperson for the Earl of Pembroke said: "I am afraid Lord Pembroke does not own any property in Ireland. The Irish Estate was completely sold off in the late 1970s by the late 17th Earl of Pembroke."

Asked specifically whether that sale included the ground rents, the spokesperson replied: "I have checked with our accounts department, and no ground rents are being collected, as far as we are aware."

However, a land ownership record for 31 Fitzwilliam Place names the Commissioners of Public Works in Ireland (the OPW) as the owner.

But it also notes that the property is "subject to a perpetual yearly rent of 50 pence created by a grant in perpetuity dated 24 October 1902 made between the Right Honourable Sidney, Earl of Pembroke and Montgomery on the one part and Henry John Moses on the other part".

There is a similar uncertainty over an annual ground rent of €19.05 recorded by the OPW under the name of the Earl of Wicklow for Arklow Coast Guard Station.

That title became extinct when the ninth earl died without an heir in 1983.

The OPW has not yet responded to a question asking who now receives the payment listed under that title.

Cathal Brugha Barracks is listed three times in Moran's table.

For Cathal Brugha Barracks 1, €419.36 is owed to a “private individual”, while Cathal Brugha Barracks 2 and 3 show €275.73 and €25.39 due to "Kilruddery Farms".

Killruddery House, in Co. Wicklow, has belonged to the Brabazon family, the Earls of Meath since 1618. Its website says that, today, three generations of the Brabazon family live in the house and on the estate.

There was a company called Killruddery Farms, controlled by the Brabazons, which was voluntarily wound up in 1988.

A spokesperson for the earl said on Thursday that: "Lord Meath confirms he is not in receipt of any ground rents from public buildings. Any ground rents that existed in the past have either been transferred to the property or sold."

Wasn't there a War of Independence?

If any of the rents payable are being paid, they shouldn't be, says Eoin Ó Broin TD, Sinn Féin's spokesperson on housing.

The payments are a legacy of land acquired during British rule and should no longer be imposed on public bodies or private property holders.

"It doesn't matter if it's a small or large amount of money at this stage," he says. "It's as much the principle of it.”

“Why is anybody still paying ground rent, particularly ground rent that may be paid to the great-great-great-grandchildren of whoever first acquired this land in the 1600s, 1700s or 1800s?" he asks.

Ó Broin says a Dublin homeowner had contacted him not long ago about ground rent still being paid to an English aristocratic interest, showing the issue is not confined to State affairs.

Legally, however, abolishing the payments without compensation would “offend the constitution”, says Wylie, the land law expert.  

The Constitution protects property rights, regardless of the historical origins of a particular title.

Legislation simply cancelling valid freehold interests would therefore amount to unconstitutional confiscation.

That is why Irish ground-rent law provides for the purchase of a landlord's interest rather than its uncompensated removal, he says.

Where a leaseholder qualifies, the landlord cannot simply refuse to sell the freehold. The price can be determined under the legislation and, if the parties cannot agree, the dispute may have to be settled through the legal process.

The system recognises that the tenant, or a predecessor, often erected the buildings and created most of the property's value, Wylie says.

The landlord's interest is principally in the ground beneath them, so the statutory purchase price can be relatively small. Even so, many eligible leaseholders have never exercised the right, he says.

Wylie points to the difficulty in Carrickmacross, County Monaghan, where business owners on one side of the main street spent decades trying to purchase freeholds connected to the Shirley family and its company, JES Holdings.

The long campaign is documented by Pat Byrne in his book Wrong Side of the Street: Carrickmacross Tenants Fight for Freehold.

Phase out

O'Gorman, the Green Party TD, wonders if the State should examine a structured process for ending its remaining ground rents, he says. “And maybe absorbing them back into the freehold of these buildings.”

Although the annual payments are small, each one requires records, administration and continued compliance with a lease whose terms may be generations old, he says.

He points to reforms proposed in England and Wales, where most existing residential ground rents are due to be capped at £250 annually and reduced to a rate of zero after 40 years.

Ireland, he says, should consider a similar transition, potentially over a shorter period given that this state stopped the creation of most new residential ground rents decades ago.

Funded by the Local Democracy Reporting Scheme.