The Gazette 1972

Standard conditions of sale

Members referred to Clause 29 of the Society's private

treaty contract enabling the vendor to resell for breach

of any condition by the vendor. They have always

assumed that this condition would not affect the neces-

sity of twenty-one days notice making time of the essence.

Recently they learned of colleagues who are under the

impression that the terms of this clause make it possible

to forfeit a deposit without notice. The matter was

referred to counsel who replied that he had never heard

of any solicitor attempting to resell without first having

made time of the essence by an appropriate notice which

would usually refer to the provisions of Condition 31 but

if any of the Society's members are under the impression

that Condition 31 enables them to forfeit without deposit

it would be well to remove this impression at the earliest

opportunity. Once there has been failure to comply with

the notice it is not strictly necessary to give further

notice of intention to resell but a prudent solicitor would

usually do so. Until time thus has been made of the

essence and the purchaser has made default in complying

with the notice he has not in law failed to comply with

any of the conditions and Condition

cannot be relied

on.

25th NOVEMBER 1971

The President in the chair, also present, Messrs W. B.

Allen, Walter Beatty, Bruce St. J. Blake, John Carrigan,

Anthony E. Collins, Laurence Cullen, Gerard M. Doyle,

Joseph L. Dundon, James R. C. Green, Gerald Hickey,

Michael P. Houlihan, Francis J. Lanigan, Eunan

McCarron, John Maher, Patrick C. Moore, Senator John

J. Nash, George A. Nolan, Patrick Noonan, Peter E.

O'Connell, Thomas V. O'Connor, Patrick F. O'Donnell,

James W. O'Donovan, William A. Osborne, Peter D.

M. Prentice, Mrs. Moya Quinlan, Robert McD Taylor,

Ralph J. Walker, David R. Pigot, Patrick J. McEllin,

Thomas Jackson, Christopher Hogan, John C. O'Carroll.

The following was among the business transacted.

Motion for judgment—duty of a solicitor to notify

opponent

In the particular circumstances of the case submitted

the Council adopted a report from a committee stating

that the solicitor concerned for the plaintiff committed

a breach of etiquette in failing to notify the solicitors for

the defendant of his instructions to proceed on a motion

for judgment. The committee also disapproved of the

solicitor's failure to consent to late filing of the defence

in the circumstances of the case. They also directed that

the alleged failure of the solicitor for the plaintiff to

reply to a letter requesting a letter consenting to late

filing of a defence should be referred to the Registrar's

Committee for their directions.

Housing Act, 1966, Sections 90-92. Registration of

vesting documents

A member wrote to the Society referring to Section

of the Act under which a Housing Authority may sell a

dwelling to a tenant by means of a vesting order. Section

requires that the order shall be registered with the

Land Registry. Members state that such orders are being

prepared by clerks in the service of local authorities and

transmitted by them to the Land Registry for registration

and were of the opinion that this is an offence under

Section

of the Solicitors Act,

1954.

It was decided

that a letter should be sent to each county manager

informing him of the practice and of the Council's view

of the legal position whereby such action is illegal.

Road traffic prosecutions

Members drew attention to a case in which they had

submitted a full report to the Hibernian Insurance Go.

and requested the fee of

£10.50

agreed between the

Society and a number of the Accident Offices Association

and published in a recent issue of the Society's

Gazette.

The insurance company concerned refused to pay more

than the fee of £7.35. It was decided that as the

Hibernian Insurance Co. has no agreement with the

Society the Council would not intervene. Members'

claim for costs is against their own client. They are not

obliged to furnish a report for an insurance company

unless they are instructed to do so by the client and on

payment of the proper charges either by the client or by

the insurance company.

Mortgagee's solicitor's costs

The attention of the Council was drawn to a case in

which the costs of the mortgagee's solicitor on the

granting of a loan for the purchase of a dwelling calcu-

lated at the lending institutions rate of

per cent would

in fact exceed the permitted scale charges having regard

to the amount of the loan. The Council on a report from

a committee were of the opinion that the mortgagee's

solicitor would not be entitled to more than the commis-

sion scale fee under the Solicitors Remuneration General

Orders,

1884

1964.

Further representations have since

been received which are under consideration by the

committee.

Search fee

The will of a testator drawn over thirty years ago was

lodged to obtain a grant of administration with will

annexed. The grant was refused and the papers were filed

away. The principal of the firm has since died and the

practice was taken over by his son who transferred to

Dublin. The opinion of the Council was sought as to

whether in the circumstances a fee could be charged for

searching and handing over the will. The Council replied

in the negative.

Planning—Housing Act, 1969

Members drew attention to a case in which a client

who resided in a block of four suburban houses and

feared the adjoining house would be demolished to pro-

vide access to a site at the rear of the house. The

Housing Act does not provide for any objections to be

made to applications for demolition under that Act and

the local authority has declined to give the solicitors

notice of any application that may be received. In view

of the speed with which premises can be demolished an

injunction will not provide an adequate remedy. The

committee reported that they had noted a letter from

the Department of Local Government which stated that

an applicant for permission for change of use or demoli-

tion under the Housing Act,

1969,

is not obliged by the

Act to publicise his intention in the» matter and neither

is there any obligation under the local authority to do so.

In granting a permission under the Act it is open to the

local authority to impose a condition requiring the taking

of such reasonable steps in relation to the demolition

work as will ensure that the work either while being

carried out or when completed with neither cause injury

to any adjoining or adjacent building nor interfere with

the stability thereof. The Council on a report from a

committee were of the opinion that the matter is not one

in which the Society can take any action and that indi-

vidual owners must take the appropriate action to pro-

tect their own interests.