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needed. A Court might take the view however, that in
such circumstances the former home becomes "de-
controlled" so to speak. Another question is whether a
house can be the family home of more than one couple at
the same time. We feel that it can.
The one thing that we can be sure of is that there will
continue to be a great deal of litigation over this Act in the
future. Hopefully many of the problems will be resolved in
the near future.
The Act also contains certain other ancillary provisions
which are quite important. For example, it provides that a
person who is the sole owner of a property which is a
family home may transfer that property into the joint
names of that person and their spouse free of Stamp Duty
and registration fees provided that they take the property
as joint owners, not tenants in common. Some Solicitors
take the view that since the Act applies to pubs or farms
which are family homes, that it should be possible to trans
fer say a 300 acre farm into joint names without liability for
Stamp Duty. This view is not shared by the Revenue
Commissioners, who say that only the portion that
comprises the family home and the portion reasonably
ancillary thereto is covered by the Section.
Premises which are a Family Home
When premises being sold are a family home what
extra matters must arise in the course of the transaction:
(1) If the Vendors of the property are joint owners and
are husband and wife no consent is needed on either the
Contract or Deed. In all other cases, the Contract will be
void unless the prior written consent is given by the
Vendor's spouse. This is usually endorsed on the
Contract in some form of words, like the following:
"I
being the spouse of the within
named Vendor HEREBY CONSENT to the proposed
sale of the property described in the within Contract at
the price of £
and hereby irrevocably agree to
endorse a consent in writing on any assurance of the
said property by the Vendor in furtherance of the
within Contract for the purposes of Section 3 of the
Family Home Protection Act 1976".
The undertaking to execute a Consent on the Deed is,
of course, not essential but is clearly advisable, in the case
of a spouse having consented to the Contract but refusing
to consent ot the Deed. Neither is it essential that the
consent be endorsed on the Contract. If the consent is a
separate document, however, it would have to be more
explicit.
In the case of a sale by auction (as a
prior
consent is
necessary) the Vendor's Solicitors should arrange to have
the spouse present at the auction to endorse consent on
the Conditions of Sale or, failing that, have a separate
consent to a sale at not less than a stated price signed by
the spouse prior to the auction. The Solicitors for a
prospective Purchaser should enquire, prior to the
auction, that the appropriate consent is, or will be,
available.
(2) If one spouse is the owner, the prior written consent
of the other spouse must be given to the Deed. This is
usually endorsed on the deed in some form of words, like
the following:
"I
being the spouse of the within named
Vendor HEREBY CONSENT for the purposes of
Section 3 of the Family Home Protection Act, 1976, to
the sale by the Vendor of the within premises for the sum
of £
Some Solicitors, particularly in the country, have
adopted a practice of including the consenting spouse as a
party to the Deed and including the form of consent as an
extra Certificate in the Deed. If this is done, the
Certificate should specify that the consenting party has
executed prior to any of the other parties to the Deed and
care should be taken to see that this is actually done. This
seems to be a very good practice which should be adopted
more generally because, particularly in unregistered land,
the Certificates will be an important document of title for
at least 12 years and if they are on a separate piece of
paper, they may get lost. In addition, the consent can be
recited in the Memorial of the Deed and if, by any
chance, a Deed incorporating the consent was lost, there
would be some strong evidence to verify that a consent
was included in the Deed.
(3) Because of the awful implications of a Deed being
void, it has become normal practice for a Purchaser's
Solicitor to ask for a Statutory Declaration to be
furnished to verify that no consent is necessary because
the Vendors are joint owners and are married to one
another or that the person who executed the Consent is
the correct person to do so. Some Solicitors disapprove of
this practice and point out that it is not normal practice to
ask for verification that the signification that the signature
of the Vendor to the Deed is the signature of the correct
person. However, there have been very few examples of
persons who succeeded in selling a house they did not
own. With the increasing number of cases involving
matrimonial problems, there are plenty of people who
would attempt to sell the family home without their
spouses's consent if they could. We feel that a Solicitor
should ask for verification by way of Statutory
Declaration to protect themselves and their clients. It is
normal for such a Declaration to exhibit a Marriage
Certificate. Again, some Solicitors argue that this
Certificate should be a State Marriage Certificate and if
one wants to be able to satisfy any Purchaser's Solicitor,
it is safest to get a State Certificate. The Law Society
Conveyancing Committee is investigating the validity of
this particular point and a practice note will be published
as soon as possible. Precedents of the type of
Declarations generally acceptable in both of these
instances are attached, numbered Precedents One and
Two.
Land Registry
If the property is registered in the Land Registry the
Registrar of Titles is concerned with the question of the
Family Home Protection Act because there is a general
obligation on him to register only valid Transfers. If the
Transfer is by two joint registered owners who are
married to one another, the Registrar of Titles will require
to be furnished with a Declaration such as that at
Precedent Number Three to be satisfied that there is no
other person whose consent should have been obtained.
He will not think it reasonable to be expected to draw
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