The Gazette 1992

GAZETTE

p R A C T 1 C E

0 T E S

MARCH 1992

The Doctrine of Caveat Emptor with

Regard to the Structure of a Property

It is the view of the Conveyancing

Committee that every purchaser of a

property should be advised in

writing to have the structure of the

building checked out either by a

qualified engineer or architect. It

would be prudent for solicitors not

to recommend any one particular

architect or engineer but rather that

clients should find for themselves the

person with the necessary

qualifications to give them a

satisfactory report. If solicitors fail

to give clients such advice and it

subsequently transpires that it costs

the clients a lot of money to carry

out work to the structure that they

did not take into account when they

decided to buy the house, they may

issue proceedings for negligence.

Furthermore, if clients query the

advice of solicitors to have the house

checked out by an engineer or

architect and make the point that the

house will be inspected in any case

on behalf of the Building Society,

solicitors have an obligation to point

out to them that Building Societies

send out their valuers mainly to

establish the value of the property in

relation to the security which they are

taking on it. The Building Societies'

surveyors are contractually bound to

the Building Society and not to the

house purchasers. On the basis of

existing Irish court decisions

purchasers have no privity of contract

with the Building Societies' surveyors

and therefore cannot sue them.

There is no point in solicitors just

verbally advising clients to get such a

report done; it is important that it

should be put in writing. Obviously,

other areas of concern arise i.e. dry

rot, dampness etc, but an architect

or engineer who is properly qualified

will advise that further experts be

retained to advise on these areas

should they become evident from an

inspection. In addition to the actual

structure any services relating to the

house and, in particular, where there

is a septic tank, should also be

examined by the expert.

Conveyancing Committee

Statement of Payment of

Compensation

Local Government (Planning &

Development) Act, 1990

The attention of practitioners is

drawn to the provisions of Section 9

of this Act which provides that

where compensation exceeding

£100,000 has become payable "the

Planning Authority shall prepare and

retain a statement of that fact,

specifying the refusal of permission

or grant of permission subject to

conditions, or the revocation or

modification of permission, the land

to which the claim for compensation

relates and the amount of the

compensation". It then goes on to

provide that the planning authority

shall enter these particulars on the

8 of the Principal Act and that

every such entry shall be made

within fourteen days beginning on

the day of preparation of the

statement.

Section 10 of the Act then provides

that no person shall carry out any

development to which this section

applies on land in respect of which a

statement stands registered, whether

under S.72 of the Principal Act or

under Section 9, until such amount

as is recoverable under the section in

respect of compensation specified in

a statement has been paid or secured

to the satisfaction of the planning

authority.

In the light of the foregoing sections

practitioners are advised to raise the

following requisition:

"Has a statement that compensation

has become payable in respect of the

property been registered under Section 9

of the Local Authority (Planning and

Development) Act, 1990 in the planning

authority resulting in development of the

property being prohibited under Section

10 of the 1990 Act?".

Conveyancing Committee

Finance Act 1991, Sections 80 to 111 -

Stamp Duties

The Finance Act, 1991 by sections 88

to 111 introduced very far reaching

changes to Stamp Duty Regulations.

The majority of the sections came

into effect on 1 November, 1991 and

members should take very careful

note of the result of these sections.

This memorandum is not to be

regarded as comprehensive, but

merely draws attention to the more

important aspects of the sections,

and each member should read the

sections carefully.

The more important items are as

follows:-

1. Stamp Duty is now no longer a

voluntary tax. Prior to the passing

of the Act, the parties to an

instrument were free to decide not

to stamp an instrument and there

was generally no mechanism

available for the Revenue

Commissioners to institute legal

proceedings against either party to

enforce payment. This procedure

is now radically changed and

Stamp Duty is now compulsory.

Section 94 (4) of the Act states

that where an instrument

chargeable with Stamp Duty is

not stamped, or is insufficiently

stamped, the accountable person

shall be liable for the payment of

the Stamp Duty, or where the

instrument is insufficiently

stamped, then the additional

Stamp Duty and the amount of