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Murdoch's TOTW: Conveyance

Conveyance:

The transfer of the ownership of property; the instrument effecting the transfer. The deed of conveyance will contain the date, names of the parties, narrative recitals or introductory RECITALS, TESTATUM, operative CLAUSE, PARCELS, HABENDUM, and TESTIMONIUM (qqv).

Has been defined in Land and Conveyancing Law Reform Act 2009 s.3 as including an appointment, ASSENT (qv), ASSIGNMENT (qv), CHARGE (qv), DISCLAIMER (qv), LEASE (qv), MORTGAGE (qv), RELEASE (qv), SURRENDER (qv), TRANSFER (qv), vesting certificate, VESTING DECLARATION (qv), VESTING ORDER (qv) and every other assurance by way of instrument except a WILL (qv); and shall be read accordingly.

A conveyance of LAND (qv) includes, and conveys with the land, all (a) buildings, commons, ditches, drains, erections, fences, fixtures, hedges, water, watercourses and other features forming part of the land, (b) advantages, EASEMENTS (qv), liberties, privileges, PROFITS A PRENDRE (qv) and rights appertaining or annexed to the land: ibid 2009 Act s.71(1).

Includes a mortgage, lease, assent, transfer, disclaimer, release, another disposition of property otherwise than by a will or a DONATIO MORTIS CAUSA (qv), and an enforceable agreement, whether conditional or unconditional, to make one of those conveyances: Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 s.27.

Conveyancing for any fee, gain or reward is primarily restricted to SOLICITORS (qv): Solicitors Act 1954 s.58 as amended by Solicitors (Amdt) Act 1994 s.77.

If it can be shown that the necessary and probable result of a conveyancing agreement is to defeat or delay creditors, it can be avoided; it is not necessary that the agreement was motivated by fraud: Conveyancing Act (Ireland) 1634; McQuillan v Maguire [1996 HC] 1 ILRM 394. The 1634 Act has been repealed by Land and Conveyancing Law Reform Act 2009 s.8(3)

If a purchaser’s solicitor makes amendments to the terms of a conveyancing contract, or a map which forms part of that contract, he should alert the vendor’s solicitor to this fact in the covering letter returning the contracts: “A Guide to Professional Conduct of Solicitors in Ireland” (2013) chap 7.1. When dealing with a lay conveyancer, a solicitor should explain to his own client the difficulties which may be encountered eg inability to accept undertakings from that person, undesirability of handing over a deposit to a lay vendor (ibid chap 6.3).

The Land and Conveyancing Law Reform Act 2009 provided for a comprehensive reform and modernisation of land law and conveyancing law. The Act provides for the repeal in whole or in part of about 150 pre-1922 statutes and their replacement, where appropriate, with statutory provisions more suited to modern conditions.

The SALE (qv) of a RESIDENTIAL PROPERTY (qv) may not be completed until all HOUSEHOLD CHARGES (qv), late payment fees and late payment interest due and owing have been paid in respect of the property: Local Government (Household Charge) Act 2011 s.10(3). The vendor will also be obliged to give to the purchaser (a) a certificate of discharge, (b) a certificate of exemption, or (c) a certificate of waiver, in respect of each year in which a liability date fell since the date of the last sale of the property (ibid s.10(4)). Similar evidential requirements must be adhered to in respect of the RESIDENTIAL PROPERTY CHARGE(qv): Local Government (Charges) Act 2009 s.8A as inserted by s.19 of the 2011 Act.

The Law Reform Commission has proposed changes in the law to simplify conveyancing, including reducing the period of title which has to be investigated from 40 to 20 years: Ninth Report of LRC (1986/87). The Law Reform Commission has proposed extensive reforms relating to land law and conveyancing: “Consultation Paper on Reform and Modernisation of Land Law and Conveyancing Law” (LRC CP 34 - 2004) and “Report on Reform and Modernisation of Land Law and Conveyancing Law” - LRC 74 - 2005. See also Report on "Land Law and Conveyancing Law - General Proposals" (LRC 30 of 1989); Restrictive Practices Commission Report “Solicitors - Conveyancing & Advertising” (1982). See also Stamp Duties Consolidation Act 1999 ss.29-49, 91-98. See “Avoiding professional negligence in Conveyancing” by solicitor Brian Gallagher in Law Society Gazette (Dec 2002) 10.

[Bibliography: Bland (2); Bloomsbury Professional; Laffoy & Wheeler; Linehan; Woods U; Wylie (2); Wylie (6).] See ALL ESTATE CLAUSE; COVENANT; FRAUDULENT DISPOSITION; MARKETABLE TITLE; OVERREACHING CONVEYANCE; RESIDENTIAL UNIT; SOLICITOR; VOLUNTARY CONVEYANCE.

 

 

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