The Gazette 1974

Wexford Seminar on Land Law- October 1973

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 100

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 a "self-contained dwelling". In order to effect a s 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 ar 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 ls 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 a 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- an 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 Sl 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 ^ lr 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 ln adequate or unworkable. This advice will not be Welcome, and may lead to the client going to another s °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