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conclusions from the fact that the owners are described
as, for example, John Smith and Mary Smith and they
live at the same address. It is not unusual for a brother
and sister to own property jointly and one of these could
have a spouse living in the property whose consent would
be required under the Act. If the Deed is by a Vendor
with a consent endorsed on it, the Registrar of Titles will
not require verification that the consent is by the correct
party.
Unregistered Property
If the property for sale is unregistered land, the only
matter of importance is that the consent is forthcoming
for every appropriate transaction since 12th July, 1976
and that any Declarations to vouch the position should be
retained with the Deeds as important documents of title
for at least 12 years.
Where The Premises are not a Family Home
(1) At Contract stage, a Solicitor acting for a
Purchaser should enquire as to whether the sale is one in
respect of which a consent will arise so that, if necessary,
it can be endorsed on the Contract. It is good practice for
a Solicitor acting for a Purchaser to ask his clients and
take a note as to whether the property appears
to be a family home from any information which the
Purchaser has gleaned from seeing around the house.
(2) On the completion of the purchase, the Purchaser
will require verification as to the circumstances in which
the property is not a family home. Generally, what is
required is a Statutory Declaration stating that the
premises are not a family home and setting out in full the
reasons why they are not a family home. The reasons can
be manifold. The Vendor's family home may have been
elsewhere. The Vendor may never have married. He may
have been divorced and remarried and his first wife may
never have resided in this house. Great care must be taken
by the Purchaser's Solicitor where the premises are not a
family home to make sure that all reasonable enquiries
have been made. Mr. Justice McWilliam in his judgment
in the case of
Hegarty v. Morgan
commented that he
hoped it was not becoming conveyancing practice to
furnish in such cases a Declaration which says simply
that the property is not a family home. In his opinion, a
Declaration should go on to state the basis on which it
was stated not to be a family home. The Solicitor acting
for a Purchaser should try and insist on getting the best
evidence available as to the position. If the Vendor is
married, the best evidence would be a Statutory
Declaration by his spouse. The logic behind this is that
the only person who could attack the-validity of a Deed
later is the spouse and, if at all possible, the Declatation
verifying the position should be obtained from him or her.
If the Vendor is not married, a Declaration as to the
position by the Vendor should be sufficient. When buying
a property which is not a family home a crucial point will
be the date of execution of the declaration. This must be
dated on or after the date of the deed. For example, if a
vendor is selling a property which is not a family home;
the Vendor is unmarried he will hand over on closing the
executed purchase deed together with a declaration
verifying that he or she is unmarried. If the deed is
undated (as they usually are) and the declaration was
executed say two weeks before completion (which is not
unusual) the purchaser could have a problem if he is
reselling within twelve years. A Purchaser from him could
rightly point out that the Vendor could have married and
ordinarily resided in the property with his wife between
the date of the declaration and the date of the deed., By
then the person who executed the deed may be difficult to
find. This problem has been exaggerated in a few cases.
We came across a case in which the Purchasers Solicitors
had held the deed for a few months waiting for the client to
pay the stamp duty and then up-dated the deed which was
still undated to avoid a penalty. This was surely a case of
"out of the frying pan" . . . The solution to this is simple.
Deeds should be dated the date of first execution which is
the strictly correct practice anyway. A Certificate of
Escrow can be given on closing if there is any appreciable
period between execution and the actual closing of the sale.
Annexed are certain precedent Statutory Declarations
which are generally acceptable in the following
circumstances:
Precedent Number
Three
Where the Vendor has never married.
Precedent Number Four
Where the Vendor is a Widow or Widower.
Precedent Number Five
Where the Vendor is divorced or living apart from a
spouse who has never lived in the property the subject of
the transaction.
Precedent Number Six
Where there is no building on the property and it is not
part of the garden or land used in conjunction with or for
the convenience of the family home.
Land Registry
Where the property is registered in the Land Registry,
the Registrar of Titles is also entitled to the best evidence
available as to the position. On the basis of the comments
of Mr. Justice McWilliam in the case mentioned, he will
not accept a Certificate in the Deed stating that the
property is not a family home.
He will accept a Statutory Declaration by the Vendor
or the Vendor's spouse setting out the basis on which the
property is not a family home. As a concession to the
Solicitors' profession, he will accept a Certificate from a
Solicitor that the property is not a family home. The Law
Society do not advise Solicitors to give such a Certificate
because it can be very difficult to be sure in some cases as
to whether a property was a family home or not and there
is absolutely no reason why a Solicitor should take
responsibility in a matter where there is no need to. We
advise Solicitors to give their own Certificates only in
cases of the clearest possible personal knowledge and
certainly not on the basis only of information given to him
or her by the client. When a Solicitor is acting for the
Purchaser of registered land, he clearly must look into the
position in so far as the Vendor and the Family Home
Protection Act are concerned. Many conveyancers had
serious doubts as to whether they should also investigate
the position under the Family Home Protection Act in
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