The Gazette 1967/71

SOCIETY'S STANDARD CONDITIONS OF SALE In a comment on the article published in the January issue of the Society's Gazette a member raised several questions The first dealt with the provision in the standard conditions that any out standing legal estate shall be got in by the pur chaser at his own expense. Counsel stated that this is for the protection of the vendor and that a solicitor omitting it could become liable to the vendor for negligence. Member enquired whether there is not another risk arising from this for the solicitor acting for the purchaser. If he accepts such a clause without the specific authority of his client may he not find himself liable to the pur chaser if it turns out that there is an outstand ing legal estate which can only be got in at expense to the purchaser and that in default of getting it in the purchaser finds himself in some difficulty. The matter was referred to conveyanc ing Counsel who settled the standard conditions and his comment was to the following effect. The condition as to tracing and getting in the legal estate has been in use for a great many years—certainly one hundred. In the case of a sale by private contract it is open to the pur chaser's solicitor to ask to have it stated what legal estate is outstanding and where it is. Never theless Counsel did not think that a solicitor would be negligent if he allowed his client to sign a contract with this provision in it. In Cam- berwell etc. Building Society v. Holloway (13 Ch. Div. at page 763) Jessel M.R. says : The general rule is this, that a man makes a good title by showing a good equitable title to get in the legal estate. You are not bound to trace the legal estate further than to show you can get at it. In this country the fact of the legal estate being outstanding is of even less importance by reason of the system of registration of deeds and the non-application of the principle of tacking. The condition would not cover any real defect in the title. Counsel added that in nine cases out of ten the vendor will have purchased under a similar condition probably at a sale by auction when he could do nothing about it. Member also drew attention to the clause in the standard conditions which binds the pur chaser to take the property subject to all rights of way, easements, etc. affecting the property and without obligation on the part of the vedor to specify them. He considered that a solicitor accepting such a clause could find himself in 111

with an undertaking by the solicitor for the per sonal representatives to bring in a corrective affidavit. The Assistant Secretary wrote to the Society on March llth stating that the delays in the Estate Duty Office are causing a good deal of anxiety to the Revenue Commissioners and that a review of the work and the staffing needs of the branch has been carried out and that the report is now in the Commissioners' hands. It was pointed out that a large part of the trouble is due to the fact that practically the entire Assis tant Examiners staff is inexperienced due to wastage in the grade over the past 12 years due to officers going to other jobs (Land Registry, Junior Ad ministrative, etc.). The result is that more than half of the present complement in the particular grade have less than two years service. The Assistant Secretary wrote that the question of pro visional assessment in all cases had been raised by the Society in a number of occasions in the past including a meeting with the Revenue Com missioners on 19th June 1964 and that the views of the Commissioners had been already fully set out in correspondence. The fact is that the Revenue Commissioners are of the opinion that where provisional assess ments are issued it is in a number of cases ex ceedingly difficult to obtain answers to queries and requisitions subsequently raised and they say there is great delay in getting corrective affi davits and for this reason they are not prepared to make a provisional assessment insisting in all or most cases on the entire assets being returned and duty assessed before the grant of probate or administration can be issued. Accepting that what the Revenue Commis sioners say is correct as to delay by members of the profession in answering correspondence from the Estate Duty Office it is obvious that these members who must be in a minority are the cause of the reluctance on the part of the Revenue Commissioners to accept what would be a forward step in enabling the profession as a whole to get their business transacted more speedily and efficiently. The Society also suggested that the require ment of the lodgment of a duplicate schedule of assets might be discontinued. The Assistant Secretary states that this matter is under con sideration with the Probate officer. As the present practice by which the duplicate goes to the Pro bate Office and finally to the Public Records Office is one of long standing going back well before 1922, the matter is not entirely within the Commissioners' power.