The Gazette 1961

Land Commission costs and procedure

The Secretary reported that it appeared that the

new rules on Land Commission costs and procedure

have not yet been drafted as no word concerning the

rules has been had by

the Society

from

the

department. The Secretary was directed to take

the matter up with the department again.

Solicitors acting for building development

companies. Furnishing of title

A member wrote to the Society with reference to

the current practice in building development schemes

where a builder either grants leases directly to the

purchasers of houses, or has an agreement with the

owner of the land upon which the houses are built

whereby the owner grants leases to the persons

nominated by the builder. The purchaser in turn

contracts with the builder for the construction of

the house and in most cases he is seeking a loan from

either an insurance company or bank.

In many

cases the lease to the purchaser is granted to him

before the house is built and the question of the

title supplied by the lessor arises when the purchaser

has to raise a loan and offer the completed house as

security or where he sells his house at a later date.

Member stated that in very many cases the title

offered to prospective purchasers is insufficient and

is not a good marketable title and he asked for the

opinion of the Council on the duties of a solicitor

acting for a lessor or builder especially where the

prospective purchaser

is not represented by a

solicitor.

It was also suggested tha.t the solicitor

acting for the lessor should give a proper marketable

title to all lessees who do not have a solicitor acting

for them.

The Council on a report from a committee stated

that (i) where a solicitor acts for both lessor and

lessee he is under a professional duty to take all

necessary steps and give all necessary advice to

protect the interest of the lessee.

This includes

either furnishing

the

lessee with all necessary

documents of title on payment by him of the usual

scrivenery charges, to enable him to sell or obtain

a mortgage on the security of the premises and

make tide for a subsequent purchaser's mortgage, or,

at least, advising him that his interests would be

prejudiced if he did not obtain the necessary evidence

of title.

(2) If a solicitor acts for a lessor and deals

with a lessee who is not professionally represented

he should inform the lessee that he is not protecting

his interests.

Building development contracts and building

development advertisements

The Council have considered the general question

of the contracts and advertisements used by builders

in connection with building development schemes

and have directed that the statement on the question,

of advertisements which was published

the

Society's GAZETTE for July, 1954, be republished

for the guidance of members. The statement reads,

as follows :

The Council have decided to publish their

considered view that it is unprofessional for a

solicitor acting for a lessor or builder to act also

for the purchaser or lessee if the advertisements

published can reasonably be regarded as suggest

ing that the lessee or purchaser should retain the

lessor's or builder's solicitor.

It is also unpro

fessional for a solicitor acting for a lessor or

builder to permit a client to use his name in any

advertisement which contains a reference to costs.

The Council further consider

that where an

advertisement which is objectionable for any of

the above reasons is published by a lessor or

builder it is the duty of the solicitor acting for

either on becoming aware of the advertisement to

request that it should be discontinued or corrected

and to intimate that he would be obliged to refuse

to act unless this is done.

The same principle applies to all clauses and

conditions in any agreement signed by a prospective

purchaser or lessee of a building site. The Society

has no objection in principle to the builder or lessor

accepting responsibility for the costs of granting the

lease provided that the lessee or purchaser is not

given to understand that these costs will be paid for

him only if he employs the solicitor acting for the

builder or lessor. Any arrangement of that kind

would be objectionable. If the builder is willing to

pay the purchaser-mortgagor's solicitors costs of

obtaining a loan the Society has no objection to this

provided it is made clear by the builder, or the

builder's solicitor if he is consulted by themortgagor,

that the mortgagor is free to employ the services of

any solicitor of his own choice and that the builder

would pay that solicitor. Any suggestion to the

effect that such costs would be paid by the builder

only if the mortgagor employs the builder's solicitor

would, in the opinion of Council, infringe the

Professional Practice Regulation prohibiting unfair

attraction of business.

PARTICULARS

DELIVERED

STAMP

Members are referred to a statement appearing

under the above heading in the GAZETTE for May,

1962, at page 2.

In the final sentence it was stated

that in view of the provisions of the statutes it

appeared that the Particulars Delivered stamp should

be impressed in all cases whether required by the

Revenue Commissioners or not and that the solicitor