The Gazette 1974

Wexford Seminar on Land Law-

October 1973

The 17th Seminar of the Society of Young Solicitors

was held in the Talbot Hotel, Wexford, on Saturday,

21st, and Sunday, 22nd October 1973, and attracted an

attendance of more than 200 members.

The first lecture on

"The Sale of Flats"

was given by

Mrs. Blanaid O Brolchain,

Solicitor. She emphasised

that by definition, a flat was an "independent" rather

than

"self-contained dwelling". In order to effect a

ale, a flat must either be conveyed in fee simple or

leased, for a long term at a small rent, with a fine closely

related to the market value of the vacant dwelling at

the time of sale. The development of the land includes

the whole of the land and building, including common

eas, so far as a separate entity has been created; this

development can deteriorate if no proper arrangements

a r

e made for its management. A scheme covers the

whole method of sale, and should include management.

The word "condominium", is used to describe both the

development, and the management society itself. It is

t o

be noted that, in relation to registered land, Rule

3 0

(1) (a) and (b) of the Land Registration Rules, 1972,

Provides for the freehold transfer of a flat, if the land

registered. As stated in Mr. George's book, arrange-

ments can be made in regard to flats of unregistered

Hnd. In this case, the purchaser's solicitor's function of

flat in England is almost entirely confined to advising

his client whether he can safely purchase. This is not

*he case in Ireland, where the advantages rests with

Jhe builder-developer, who can get an enormous return

from a comparatively small site; the purchaser often

relies on the agent's brochure, or even on a newspaper

advertisement. When the contract is signed, the devel-

°per normally takes an interest which takes the form of

Profit without liability. The expression "service charge"

which often includes annual payments for repairs, insur-

ce, maintenance of common areas, etc., is often mis-

understood by a prospective purchaser. There is little a

Purchaser's solicitor can do once the purchaser has

gned the contract, which is the usual course.

A purchaser of a flat cannot get it out of his head

that the landlord must be responsible for repairs, insur-

ance

> and maintenance of halls, gardens, stairs and

°ther common areas. A purchaser of a house on the

°ther hand is well aware of his liability to maintain his

Property. Unless a management society of all flat

dwellers in the building is created, it is inevitable that

ultimately the roof will fall into disrepair, the garden

^jll run to seed, and the stairs and hall will become

ty and unlighted. This new responsibility for flat

dwellers has only arisen within the last three years. If

fhe contract is not signed, the solicitor for the flat

dweller should not first investigate the title, but should

°°k carefully at the scheme of management after com-

pletion, and advise his client not to buy if the scheme is

adequate or unworkable. This advice will not be

Welcome, and may lead to the client going to another

°Hcitor. After settling in, the flat dweller will at first

See

the value of the property increasing month by

ponth, but later the inevitable deterioration will set in.

however, the rules of a management society should be

as simple as possible, and easily understood. The essen-

tial matters to be undertaken by a solicitor in connec-

tion with the sale of a flat are :

(1) All documents of sale within the development

must be identical, and this identity of documents must

be clearly stated. No amendments can be accepted,

unless they are applied to all the flats together.

(2) All the flat owners must have a common responsi-

bility for repairs and insurance. This responsibility will

be divided up according to the actual number of flats

in a building.

(3) An administration or management society must be

formed at the very beginning, and be ready to operate

when the first sale of a flat takes place. Unless these

conditions are fulfilled, difficulties are bound to arise.

Very often a great number of restrictive covenants

are inserted in an original lease, as the drafters of the

scheme do not realise that a sale is involved. These

restrictive covenants should, however, in practice be

limited in number as to the conduct of the flat dwellers

in not causing annoyance to his neighbour, as restric-

tions which appear reasonable today may not be so in

the future. The drafters of the lease find it difficult to

forget that this is not a lease for a short term at full

market value, but rather a development which should

be administered by the flat dwellers themselves. A

solicitor for a tenant purchaser is used to regarding the

landlord as an antagonist, and then forgets that the

purchaser of a flat will be both landlord and tenant,

when the management society takes over. In drafting

the rules, it is not necessary to produce a first class

legal document; all that is required is (1) that the rules

should be relevant, and (2) the language of the rules

should be simple and accurate. It is definitely not con-

venient to adapt the rules called "Model A" either of a

Friendly or of an Industrial and Provident Society; it is,

however, possible with care to create a Private Com-

pany limited by Guarantee with appropriate memor-

andum and articles of association. The Law Society

should undertake the drafting of a standard scheme for

the sale of flats, including a straightforward document

of sale, and a practical set of rules for the management

society. This scheme would also be adapted for commu-

nity associations.

Perhaps an interesting model to be adapted would be

that of Scotland. Here the land is registered, and a

standard Deed of Conditions is registered as a burden

on the folio. The flats are sold in fee simple, subject

to the conditions in the burden, which set out rights,

easements, restrictions and management. The restric-

tions and the management is done by an Agent, called

in Scotland a factor, elected by the majority vote of the

owners. This seems ideal and straightforward if Irish

house agents were willing to undertake these duties,

and if the difficulties attendant on voluntary registra-

tion of land could be simplified.

In Italy, the purchaser of a flat is protected by the

rules of the Civil Code. The Italian Civil Law contains

a great number of regulations and restrictions protect-

ing flat owners; it is based on the notion of "

condo-

minium

or common ownership. And this common

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