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GAZETTE
OCTOBER 1989
From the President . . .
I have recently during the year
discussed the need for greater law
reform in this country but the
recent publication of a Law Reform
Commission Report on Land Law
and Conveyancing Law persuades
me to return to the topic. This
Report was prepared by a working
group headed by John F. Buckley,
Law Commissioner, and including
colleagues, Ernest B. Farrell and
Rory McEntee as well as Miss
Justice Mella Carroll, Professor J.
C. Brady, George Brady S.C. and
Mary Laffoy S.C.
The Group has concentrated on
matters which occur in a significant
number of conveyancing trans-
actions which give rise to un-
reasonable delays in completion.
They qualify their recommen-
dations by pointing out that delays
in the Land Registry will limit the
effectiveness of any of their
proposals to be implemented. With
this I can most certainly agree. Over
thirteen months to register a
dealing and 4 2 , 0 00 dealings
waiting to be dealt with, illustrates
how serious the situation has
become. The point is also made
that some 22 years after the Act
came into force, only three original
counties, Carlow, Laois and Meath,
have compulsory registration. I am
amazed that there is not a public
outcry over the Land Registry
situation, which is an issue the Law
Society is constantly pushing wi th
the Department of Justice.
Amongst the recommendations
of the Law Commission are:
1. A reduction of statutory period of
title from 40 years to 20 years;
2. Ame n dme n ts to t he rule
against perpetuities particularly
in relation to options and
easements;
3. Amendment of the position of
Judgment Mortgages regis-
tered between the making of a
contract for sale and complet-
ion of the transaction;
4. Abolition of the rule whereby
damages cannot be awarded in
an action for breach of contract
against a vendor who has failed
to show good title.
I was amused to read their
recommendation that the fee tail
estate should not be abolished!
Twice in a professional career
extending almost to 30 years, have
I come across a fee tail and in each
case have immediately barred the
entail and turned it into a fee
simple. I find it difficult to believe
any lawyer would advise the
creation of a fee tail today.
Some of these recommendations
(and items I have not mentioned)
may seem somewhat remote to
most practitioners but the section
where they deal wi th rectifications
of problems arising from modern
legislation will be more readily
appreciated. In particular, recom-
mendations that the Family Home
Protection Act be amended to avoid
the need for enquiry into the giving
of consents in prior transactions,
that section 27 of the Local
Government (Planning & Develop-
ment) Act, 1976 be amended to
include a five year time limit on the
bringing of applications for either
unauthorised developments or
unauthorised uses, the amendment
of section 45 of the Land Act so as
not to prevent the vesting of an
interest in land that is neither
agricultural nor pastoral and is less
than t wo hectares, and the re-
commendation that the Landlord &
Tenant Act should be amended to
allow parties contract out of the
provisions of Part II of the 1980 Act
as it applies to business tenancies
provided both parties have in-
dependent legal advice, seem to me
very useful.
One area I should have liked to
have seen dealt with is the question
of searches. If it was arranged that
bankruptcy,
lis pendens,
and
revenue claims for inheritance tax
would only affect property if
registered with the Land Registry or
Registry of Deeds, it would con-
siderably simplify the conveyancing
process. If likewise there was only
one register to cover all planning
matters including road proposals
and compulsory purchases, would
it not be helpful? I suspect sug-
gestions of this nature might be
found too radical to be accepted by
Government.
The Report is a most interesting
document and I would recommend
it to all solicitors who have an
interest in conveyancing.
Some of the provisions included
in the U.K. Law of Property (Mis-
cellaneous Provisions) Act, 1989
might also merit consideration in-
cluding one that deeds need not be
written on paper or parchment nor
need there be a seal for valid
execution of a deed by an in-
dividual. Another interesting pro-
vision is that a contract for the sale
or other disposition of an interest
in land can in future only be made
in writing and only by incorporating
all
the terms which the parties have
expressly agreed in one document
or when the contracts are ex-
changed in each of them. The
requirement that the contract must
incorporate all the terms which the
parties have expressly agreed
coupled wi th the general rule that
a solicitor does not have implied
authority to enter into a contract
for sale or to purchase a property
on behalf of his client should do
away wi th a lot of problems for
solicitors in t hat jurisdiction.
Perhaps the relevant authorities
might take these points into
account when they come to
prepare I hope in the very near
future some legislation to improve
and to simplify the conveyancing
process.
•
MAURICE R. CURRAN
President
Agricultural Consultant Damage and
Loss Assessment. Insurance Claims
etc. Very experienced, including High
Court evidence.
Dr. Joe Harte M.Agr. sc.
'Deansbrook',
Laracor, Trim, Co. Meath.
Telephone: 046-31432
347