The Gazette 1967/71

Registrar, if it appears to him, from the entries in the register or otherwise that no right adverse to or in derogation of the title of the registered owner subsists will normally, and without the necessity of any special application, register the title as absolute. In respect of sales, purchases and charges rule 234 (1) (ii) (b) provides that in cases where an application can be made under Rule 33 (the rule relating to land registered for thirty years), half only of the full scale fee can be charged. It should, however, be noted that if an affidavit be lodged in Form II as mentioned in Rule 33 and Land Registry fees paid the solicitor obtaining the conversion to an absolute title may charge the extra fees set out in Part V of the Schedule of Costs to the Rules. RESTRICTIVE CLAUSES IN CONTRACTS The Council strongly disapprove of any inhibitive or restrictive covenant contained in a contract for sale or conditions of sale. Any clause that unfairly or unreasonably restricts the title offered to the purchaser whether purchasing by way of private treaty or by way of public auction is not in the interests of the public or of the members of the profession. The number of cases of this type of clause reported to the Society in recent times has given cause for concern. Members might care to note that the provisions of the Registration of Title Act, 1942, Section 15, make any such condi– tion void. CONVEYANCING AND CONVEYANCING COSTS IN FRANCE [Reproduced from the Solicitors Journal by kind permission of the author, editor and publishers] The transfer of ownership of land is unlikely to prove a simple matter in any country. Even with– out the complications of such particularly British notions as the doctrine of estates, the notion of trust, and the distinction between realty, person– alty and chattels real, the multiplicity of interests, by whatever name called, which are both theoret– ically and actually possible in relation to a given piece of land, will always prevent the transfer from owner to owner of a piece of land from being effected by as simple a process as the sale of a pound of tea. The corollary to this principle is that in any country the sale and purchase of land will require the services of experts, trained in the local system of land law; and the corollary

to this in turn is that such experts will expect to be paid according to their skill, and that the sale and purchase of land, being a job for an expert, is likely to be an expensive process. In England the conveyancer is the solicitor, the "man of business", acting as adviser and agent for the vendor or purchaser, the latter being permitted and theoretically able to do the job himself. It is perhaps the idea of the solicitor as representative, the legal alter ego of the client in both contentious and non-contentious matters, which has led to the judicial principle that each party to a convey– ancing transaction, no matter how amicable, should in general have his own solicitor. The notairc Like the trust, this is a peculiarly English notion; in France, as in many continental countries, the business of conveyancing is in the hand of the notary (notairc, Notar, notaio, notario), whose role is much more that of a public official than that of the representative of one client or another. The notaire is appointed by the State, and his duty is to record in writing, at the request of any member of the public, any transaction which calls for a clear, definite and permanent record, in– cluding certain transactions which by law cannot be effected except by his intervention. In the complex rules of evidence of French courts, the acte notarie, which like certain public documents ranks as an acte authentiquc, carries the utmost weight; the content of such a document, at least in so far as it is the record of what the notary could personally verify, is conclusive evidence unless upset by the complicated, expensive, and rarely successful procedure of inscription de afux. This rule applies in particular to the date of the document, which may be of extreme importance in determining priorities; the date inserted in a private document is of no evidential value until rendered certain either by the death of one of the parties, the registration of the document, or its deposit with a notary; the date of a notarial act is regarded as certainly correct. When the document which the notary is called upon to draw up is a transfer of land, it is the rule, rather than the exception, for him to act for both parties, or rather "between the parties", since he is regarded as an independent state official, putting into effect the wishes of both parties. By comparison with the English system, the result is a saving of manpower, without adverse conse– quences for the parties. The standards of the French Notariat are in general high, both as regards ethics and competence, and the problem of "conflict of interest" does not arise, since the