The Gazette 1981

JULY-AUGUST 1981

GAZETTE

principle of 'caveat emptor', if only because it is inconsis- tent with the recent movement in other fields towards con- sumer protection. I question whether it would shake the foundations of our conveyancing system if a vendor were required to have at least a basic structural survey made of his property before he puts it on the market, so that a certificate of a qualified surveyor would be available for inspection by any prospective purchaser. Legislation may have a role to play here in laying down the precise scope of such a survey and the nature of the certificate, so as to ensure that it would be accepted by lending institutions as sufficient for their purposes. The cost could, of course, be added by the vendor to the purchase price and, if the certificate were acceptable to lending institutions, pur- chasers should not object to this extra price since it would save them having to pay later for their mortgagee's sur- vey, and, of course, an additional one of their own. Indeed, in many cases they would save money in the long run, while at the same time being able to avoid some of the uncertainties and delays necessarily involved under the present system. The second reason for delays relates to the numerous charges and interests which may affect land nowadays, but which will not be disclosed by the title documents and therefore cannot be left to the traditional investigation of title. It is this which has given rise to that modern conveyancing phenomenon, enquiries and searches to be made of the vendor and public bodies or authorities. Increasingly, these are being made at the pre-contractual stage, even in the Republic, where, for example, planning enquiries are often made at this stage. But again one is prompted to ask why these matters should not be treated in the same way as physical defects. Why should not the vendor be expected to make many of these enquiries and searches in preparation for putting his property on the market and to have appropriate certificates showing the r e s u l ts a v a i l a b le f or i n s p e c t i on by p r o s p e c t i ve purchasers? In Northern Ireland, such a system would seem to be especially applicable to things like the Department of the Environment 'property certificate' and Statutory Charges Register search certificate. Again the cost can be added to the purchase price, but purchasers expect to pay for these items anyway. I recognise that there may be more of a problem here in that there is a danger that the certificates may b e c ome out-of-date. This is clearly a matter for discussion and, as I shall mention later, one crucial aspect of this is the role of public authorities and the sort of service they provide for en- quirers and searchers. However, for the moment I will say that I am convinced that a system could be worked out whereby most prospective purchasers could again be pro- vided with sufficient information to persuade them and their legal advisers not to delay entering into a binding contract for the purchase of the property in question. The third reason for delay relates to the question of finance. Most purchasers n owa d a ys have to borrow a substantial portion of the purchase price, but all too often the final arrangement of this is left until after the preliminary negotiations with the vendor are completed. There is often a very practical reason for this, because lending institutions may be reluctant to entertain an application for a loan until the purchase of a specific property is settled, and the details of this are known. They may also be reluctant to give any 'letters of intent' which might be construed as firm promises to lend a specified amount in a

given, albeit hypothetical, situation. But unless the pur- chaser knows where he stands financially, he cannot be expected to enter into any commitment with the vendor, and his conveyancer must guard against this so often under the present system. What is clearly needed is for some new system to be worked out by conveyancers and lending institutions whereby purchasers can be given some sort of basic guarantee as to a loan being forthcoming, which will enable them to enter into a commitment for the purchase at a much earlier stage. I refuse to believe that the practical difficulties, and no doubt there are some, are such as to be incapable of resolution if those primarily involved in arranging pur- chasers' finance got together to discuss the matter in a positive spirit. For the lending institutions there is surely the attraction of enhancing the public relations which seem to be their constant concern nowadays. For conveyancers there is the prospect of removing one of the greatest practical headaches they have at the moment.D At its recent Annual General Meeting the Association appointed the following Officers and Committee for 1 9 8 1 / 8 2. President: Liam McHale; Vice-President: Michael Browne; Secretary: Eanya Egan; Treasurer: Ward McEUin; Ex-Officio Members: Paddy Shanley, Paddy McEllin, Pat O'Connor and Adrian Bourke; Ordinary Committee Members: Michael J. Egan, Kevin Loftus, William O'Keeffe, Anthony O'Malley, Marian Chambers, James Cahill, Michael Keane and John O' Dwy e r. GALWAY SOLICITORS BAR ASSOCIATION The following are the Officers for 1981 — President: Kieran Murphy; Vice-President: Francis O'Callanan; Honorary Secretary, Ciaran Keys; Honorary Treasurer: Bryan C. Brophy. The remaining Committee Members are — Fionnuala Murphy, Colman Sherry, Geoffrey Browne, Vincent Shields, Paul Horan and Peter Crowley. MAYO SOLICITORS BAR ASSOCIATION

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