The Gazette 1979

SEPTEMBER 1979

GAZETTE

15.15 Positive Covenants and Freehold Land: A Galway member conferred with the Committee on the difficulties in attempting to create positive covenants which would be enforceable against a subsequent owner of freehold land which was being sold. What he had in mind was a situation frequently encountered of selling a site where the benefit of the enforceability of positive covenants attributed to a building estate scheme would not be available and where the vendor wishes to include a building covenant to build a wall or erect a fence. He himself eventually suggested what the Committee felt was the correct solution, namely that a covenant be inserted in the deed providing that no development was to take place until the wall or fence specified had been erected. Exceptions and Reservations in Transfers and Conveyances: Arising out of the enforced discontinuance of leases for the sale of new houses, various members have queried the question of easements, exceptions and reservations which are reserved or granted in conveyances or Land Registry transfers of new houses. The sub-committee of the Committee is still investigating the position but the initial view of the Committee was that if the transfer reserves out of the grant various rights, as it should do, that it should go on to grant the usual easements to the transferee for the benefit of the property transferred. A report of the Committee will be published in the Gazette in due course on the subject. Issue of Contracts to Auctioneers: Private Treaty Sales: A number of members have queried the practice of auctioneers, particularly in the country, who press to have contracts issued to them before any sale has been arranged, which in most cases they then proceed to get signed by a purchaser without reference to his solicitor. The Committee were of the opinion that the practice was ill-advised both from the point of view of the vendor and the purchaser and intends to take the matter up at its next meeting with the Auctioneers' Association. Clause in Contract providing for Redemption of Loan after Closing: The Committee considered the apparently increasing practice of the insertion of a clause in contracts for the sale of property providing that the purchaser should accept an under- taking from the solicitor for the vendor to pay off the vendor's mortgage after completion of the sale. The Committee disapproved of the practice but takes the view that there is no objection to a clause providing that an undertaking be accepted provided that the redemption took place on or before closing. Stamp Duty on VAT: The Committee considered the practice of the Revenue Commissioners of charging stamp duty on the sale of development property (developed since 1972) where the sale price is inclusive of VAT. This can be particularly significant where the VAT has the effect of rendering the transaction liable for a higher rate of stamp duty. The Committee came to the conclusion that the Revenue Commissioners were correct in regarding VAT being part of the price for the assessment of stamp duty. Law Society Building Contract: The Committee made certain alterations to update its existing form of building contract. Most of the changes arise out of changes in stamp duty, CRV and housing grants. 15.21 Bridging Finance: The Committee has carefully monitored the position regarding the recent furore in the newspapers about bridging finance and some of the allegations made that delays in completion of mortgages were often attributable to solicitors. The Committee took the view that there was nothing to be gained for solicitors in getting involved in the crossfire between the banks, builders and building societies over this contentious matter. The delays in the completion of mortgages take many forms and the Committee does not accept that delays on the part of solicitors are in any way significant in this respect. 15.22 Apart from the specific matters mentioned above, the Committee dealt during the year with many points in relation to practice and procedure. The Committee welcomes comment and queries from members on any matter of practice or procedure, particularly if it is something that may be of interest to the profession in general. 15.16 15.17 15.18 15.19 15.20