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Registrar, if it appears to him, from the entries
in the register or otherwise that no right adverse
to or in derogation of the title of the registered
owner subsists will normally, and without the
necessity of any special application, register the
title as absolute.
In respect of sales, purchases and charges rule
234 (1)
(ii)
(b) provides that in cases where an
application can be made under Rule 33 (the rule
relating to land registered for thirty years), half
only of
the full scale fee can be charged. It
should, however, be noted that if an affidavit be
lodged in Form II as mentioned in Rule 33 and
Land Registry fees paid the solicitor obtaining
the conversion to an absolute title may charge
the extra fees set out in Part V of the Schedule of
Costs to the Rules.
RESTRICTIVE CLAUSES IN CONTRACTS
The Council strongly disapprove of any inhibitive
or restrictive covenant contained in a contract for
sale or conditions of sale. Any clause that unfairly
or unreasonably restricts the title offered to the
purchaser whether purchasing by way of private
treaty or by way of public auction is not in the
interests of the public or of the members of the
profession. The number of cases of this type of
clause reported to the Society in recent times has
given cause for concern. Members might care to
note that the provisions of the Registration of
Title Act, 1942, Section 15, make any such condi–
tion void.
CONVEYANCING AND CONVEYANCING
COSTS IN FRANCE
[Reproduced from the
Solicitors Journal
by kind
permission of the author, editor and publishers]
The transfer of ownership of land is unlikely to
prove a simple matter in any country. Even with–
out the complications of such particularly British
notions as the doctrine of estates, the notion of
trust, and the distinction between realty, person–
alty and chattels real, the multiplicity of interests,
by whatever name called, which are both theoret–
ically and actually possible in relation to a given
piece of land, will always prevent the transfer
from owner to owner of a piece of land from
being effected by as simple a process as the sale
of a pound of tea. The corollary to this principle
is that in any country the sale and purchase of
land will require the services of experts, trained
in the local system of land law; and the corollary
to this in turn is that such experts will expect to
be paid according to their skill, and that the sale
and purchase of land, being a job for an expert,
is likely to be an expensive process.
In England the conveyancer is the solicitor, the
"man of business", acting as adviser and agent for
the vendor or purchaser, the latter being permitted
and theoretically able to do the job himself. It is
perhaps the idea of the solicitor as representative,
the legal
alter ego
of the client in both contentious
and non-contentious matters, which has led to the
judicial principle that each party to a convey–
ancing
transaction, no matter how
amicable,
should in general have his own solicitor.
The
notairc
Like the trust, this is a peculiarly English notion;
in France, as in many continental countries, the
business of conveyancing is
in the hand of the
notary
(notairc, Notar, notaio, notario),
whose
role is much more that of a public official than
that of the representative of one client or another.
The
notaire
is appointed by the State, and his
duty is to record in writing, at the request of any
member of the public, any transaction which calls
for a clear, definite and permanent record, in–
cluding certain transactions which by law cannot
be effected except by his intervention. In the
complex rules of evidence of French courts, the
acte notarie,
which like certain public documents
ranks as an
acte authentiquc,
carries the utmost
weight; the content of such a document, at least
in so far as it is the record of what the notary
could personally verify,
is
conclusive evidence
unless upset by the complicated, expensive, and
rarely successful procedure of
inscription de afux.
This rule applies in particular to the date of the
document, which may be of extreme importance
in determining priorities; the date inserted in a
private document is of no evidential value until
rendered certain either by the death of one of
the parties, the registration of the document, or
its deposit with a notary; the date of a notarial
act is regarded as certainly correct.
When the document which the notary is called
upon to draw up is a transfer of land, it is the
rule, rather than the exception, for him to act for
both parties, or rather "between the parties", since
he is regarded as an independent state official,
putting into effect the wishes of both parties. By
comparison with the English system, the result is
a saving of manpower, without adverse conse–
quences for the parties. The standards of the
French Notariat are in general high, both as
regards ethics and competence, and the problem
of "conflict of interest" does not arise, since the