The Gazette 1977

GAZ L T N - :

JANUARY/F IZ 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 w 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. l f Wroth v. 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 v. 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.

6