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think that they should go further and
insist on
the
Vendor consulting his solicitor first and that the Agree
ment in question should be submitted to the Vendor's
solicitor.
As you know the price paid by the Department of
Lands for mountain
land which
is
required for
re
afforestation is ridiculously low in any case, and it is
certainly putting a great burden on the Vendor to make
him be responsible for showing title. We pointed out to
the Chief State Solicitor, who is acting for the Minister
for Lands, that when a Local Authority acquires land for
the purpose of the Labourer's Acts or for road widening,
etc., they agree to pay the Vendor's costs of making
title. We
think that a similar situation should exist
with the Department of Lands.
We would be glad if you would bring this matter
before the Law Society and have their views thereon.
We have told the Chief State Solicitor and that we
intended asking the Law Society to take up the matter
with the Department of Lands.
A copy of the above letter was forwarded to
the Secretary of the Irish Land Commission en
quiring as
to whether our member's objection
was well-founded. In reply the Society received
the following letter from the Department of Lands
(Forestry Division) :—
As to your point that in compulsory acquisitions the
invariable practice is that the acquiring Authority pays
the owners' costs, this is, of course, accepted. Compulsory
proceedings under the Forestry Acts are no exception to
this rule and, in all cases in which such proceedings are
resorted to, the practice is for the Minister to bear the
costs incurred by the vendor in deducing, evidencing
and verifying title. The Minister is required to do so
by Section 18, Forestry Act, 1946. Ordinary voluntary
sales are, however, in a different category and in such
sales it
is
the practice of the Department to require
vendors to bear their own costs. We see no grounds
in existing circumstances for changing this practice.
The particular case
referred
to by your member
appears
to
relate
to
the pending purchase by
the
Forestry Division for £40 of 4aacres in the townland of
AB.
in
the County of CD.
(comprising 217 acres, 3
roods, 27 perches). This small division was voluntarily
offered for sale to the Forestry Division by EF. The
negotiations with EF (including all relevant conditions)
were carried out freely by correspondence—one of the
conditions being that the vendor would be
liable for
his own costs in the sale. During such correspondence it
was open to the vendor, if he so wished, to seek what
ever advice he needed from his solicitor or anybody
else. It was not until agreement had been reached that
the vendor furnished
the name and address of
the
solicitor, who would act for him in showing title. There
was no formal contract.
There can be no suggestion that this particular vendor
or any other vendor of lands to the Forestry Division
has been denied his right or refused an opportunity to
consult a solicitor at any stage of negotiations. The
Department cannot, however, accept
the proposition
that they should insist on vendors consulting solicitors.
That is a matter, as you will no doubt appreciate, which
is entirely for each vendor himself.
As
regards your correspondent's
reference
to
the
Department's insistence, in the case quoted, on having
evidence furnished to enable the note as to equities to be
dischareged,
I must
say
that
the probr»™
of dis
proportionate costs
in cases
involving small purchase
monies is one that cuases considerable concern in the
Forestry Division and in an effort to lessen the burden
of costs the practice is to dispense with the requirement
to discharge equities in sales where the purchase money
does not exceed £500 and the lands have been registered
for 20 years or more. Unfortunately
this concession
could not be applied in the case of your member's client
as his lands were only registered in 1957.
On 3rd March, 1966 the Society wrote to the
Assistant Secretary of the Department of Lands
as follows : :—
Thank you for your letter of February 21st. I think
my Council will object to the practice of obtaining the
signature of a vendor without legal advice. The effect
of the practice in this case is that the vendor may incur
legal costs exceeding the amount of the compensation
paid by the Department. If he had known this it
is
unlikely that he would have signed the contract and if
he had an opportunity of consulting a solicitor before
signing he would have been so advised.
In
these circumstances
the Council
think
that the
practice of the Department of dealing with vendors, many
of them being persons of
little education or business
acumen, and getting them to sign contracts without
professional advice is open to objection.
A further letter was sent to the Secretary of the
Irish Land Commission on 4th March, 1966 by
the Society which stated
inter alia :—
I have been directed by the Council to request that
where contracts are placed before respective vendors by
the Department of Lands (Forestry Division) the acquisi
tion of land for afforestation, that the contract contain
a provision that the Department will be responsible for
the vendor's costs.
LAND ACT 1965
Dear Sir,
We have read with
interest
the article under
the
heading "Land Act 1965" at page 89 of the March
1966 issue of the GAZF.TTF, and it would seem to us
either that Members have not sufficiently informed your
reporter of the circumstances of their case or that they
were incorrectly advised.
From our reading of the Land Act 1965
it would
appear that Land Commission Consent is only required
to enable an "interest" in
land to which the section
applies
to become vested
in a person who
is not a
"qualified person" within the meaning of the Act. It
does not seem to be material whether the person
from
whom "interest" passes is a "qualified person".
In the circumstances reported in
the GAZKTTF.
the
"interest" was passing from mortgagees domiciled and
resident in England and the report does not mention
either the domicile or residence of members client to
whom the interest was passing. Presumably their client
was a "qualified person".
It would appear therefore, that in the circumstances
as set out in your report Land Commission consent
need not be obtained.
Yours faithfully,
Messrs. McMahon & Tweedy.