The Gazette 1977

GAZ

JANUARY/F

BRUARY 1977

by a purchaser in respect of his obligations under such a

Piece of legislation as the 1976 Act. As I have sought to

show, sucli an assumption is both false and inept.

Nevertheless, we have in the 1976 Act this oblique

reference to the Act of 1882; it is therefore a practitioner's

duty to make some attempt to predict what the Courts

will make of it; one must, if one is to err on the side of

caution, suppose that the Courts will be tempted by a leap

in construction to hold that the 1976 Act intended to

impose some sort of objective standard cn a purchaser in

addition to the subjective requirement of good faith; and

that that objective standard is to be found in the words of

the 1882 Act which refer merely to "such inquiries and

mspections . . . as ought reasonably to have been made",

thus begging the question again but this time by a more

circular route. I would submit that the Courts should find

that this question, (namely

what inquiries and inspections

ought reasonably be made?)

is one to be answered by the

legal profession itself, in that doing whatever is

usual

in a

conveyancing situation generally satisfies also the

requirement of being

reasonable

in a constructive notice

context. Consequently, if the Incorporated Law Society of

Ireland were to lay down certain guidelines which it

considers to be appropriate to be followed by a solicitor

acting for the purchaser of a family home, those

guidelines will

ipso facto

become the reasonable inquiries

and inspections which it has been supposed as a matter of

construction the 1976 Act requires. A purchaser who

satisfies them

and who is also in goodfaith

will taice free

o f

any. spouse's claim.

The Conveyancing Committee of the Incorporated

Law Society is currently considering this problem, and it

is to be hoped that they do not set the objective standard

high. Indeed, little more than the standard which the

cautious view expects of a legally well-informed purchaser

he is to remain in good faith,

(supra),

should suffice, i.e.

a straight question to which a seemingly straight answer

may be accepted as conclusive. Additional elements

ould include the normal searches in the Registers, and

an inspection of the property itself by someone aware of

the legal questions which might arise would be advisable:

mdeed, such an inspection has always been advisable in

conveyancing, and is reasonably to be expected, but

unfortunately has by no means always been undertaken in

Practice. Furthermore, it is to be hoped that the Law

Society will limit the necessity for reasonable enquiries

and inspections to the posr-contractual stage, so that a

Purchaser who wishes to allege that he has a valid

contract (with a consequent right to damages for non-

completion and a lien for the deposit) will have only to

surmount the hurdle of showing that he was in good faith.

Wroth

Tyler

[19731 1 All E.R. 897 were to be

followed in Ireland, it is probable that a purchaser under

an open contract whose vendor has failed to complete

through failure to obtain his spouse's consent would be

entitled to damages for loss of bargain, notwithstanding

the rule in

Bain

Fothergiil

[1874] L.R. 7 H.L. 158

limiting a disappointed purchaser's damages to his costs

enly, e

.g.

of investigation of title, where the vendor has

failed to show title through some irremovable defect of

htle not brought about through his own fault.

The 1976 Act provides that a spouse

may

register the

fact of her marriage, in the case of unregistered land, in

the Registry of Deeds and, in the case of registered land,

in the appropriate folio: Section 12. A purchaser seeing

such an entry will fail to satisfy the test of good faith if he

ignores it. and if he fails to make the searches which

would have revealed it. he will have failed to fulfil the

objective standard postulated above, it being assumed

naturally that a search for such an entry will form part of

the recommended usual practice. This, it is submitted, is

the scheme of the 1976 Act even though the normal

position as far as unregistered land is concerned is that

registration in the Registry of Deeds does

not

constitute

notice:

Latouche v. Dunsany

1 Sch Lef. 137.

Failure to register is not to "give rise to any inference

as to the non-existence of a marriage": Section 12(2) of

the 1976 Act. Indeed, in the case of registered land the

1976 Act appears to envisage that the requirement of a

spouse's consent should rank as an overriding interest

within the ambit of Section 72(1) of the Registration of

Title Act 1964,

viz.

"... all registered land shall be subject

to such of the following burdens as for the time being

affect the land, whether those burdens are or are not

registered, namely . . . (q) the burdens to which Section 59

. . . applies." Section 59(1) states that nothing in the 1964

Act "shall affect the provisions of any enactment by

which the alienation, assignment, subdivision or subletting

of any land is prohibited or in any way restricted ...".

That spouse's right to consent should fall into this

category was stated in the 1976 Act in an unnecessarily

oblique manner, the draftsman merely satisfying himself

with providing in Section 13 thereof: "Section 59(2) of die

Registration of Title Act, 1964 (which refers to noting

upon the register provisions of any enactment restricting

dealings in land) shall not apply to the provisions of this

Act", the implication in the context being that Section

59(1) abovementioned, does so apply.

The last specific matter briefly to be mentioned

concerns the outlines of the position of the sub-purchaser,

that is to say, a purchaser who has taken from a

purchaser whose conveyance was void under the Act.

Section 3 of the 1976 Act in effect provides that the

conveyance to such a sub-purchaser will fail to pass the

property unless he can show that he was likewise in good

faith, and likewise had, assumedly, followed the

appropriate conveyancing practice. In such a case, it is

submitted that the sub-purchaser should be entitled to

accept as conclusive the signature of an apparent spouse

in the conveyance to his immediate predecessor or the

registration of his immediate predecessor as proprietor as

the case may be, on the grounds that

omnia

praesumuntur ut rite esse acta

. This would leave him

vulnerable to suspicious circumstances actually known to

him, adverse claims communicated to him, and

registrations in the Registry of Deeds which had clearly

not been satisfied in the purported conveyance to his

predecessor.

In conclusion, one hopes that it is not too reactionary

to say that purchasers are as much to be protected by our

law as unfortunate wives, anc it is tc be regretted that the

choice having been made not to put the onus of self-

protection on the wife herself (as would have been the

case if an exclusive system of registration akin to that

introduced in England under the Matrimonial Homes Act

1967 had been chosen) the burden on the purchaser was

not more clearly defined.