The Gazette 1981

needed. A Court might take the view however, that in such circumstances the former home becomes "de- controlled" so to speak. Another question is whether a house can be the family home of more than one couple at the same time. We feel that it can. The one thing that we can be sure of is that there will continue to be a great deal of litigation over this Act in the future. Hopefully many of the problems will be resolved in the near future. The Act also contains certain other ancillary provisions which are quite important. For example, it provides that a person who is the sole owner of a property which is a family home may transfer that property into the joint names of that person and their spouse free of Stamp Duty and registration fees provided that they take the property as joint owners, not tenants in common. Some Solicitors take the view that since the Act applies to pubs or farms which are family homes, that it should be possible to trans fer say a 300 acre farm into joint names without liability for Stamp Duty. This view is not shared by the Revenue Commissioners, who say that only the portion that comprises the family home and the portion reasonably ancillary thereto is covered by the Section. Premises which are a Family Home When premises being sold are a family home what extra matters must arise in the course of the transaction: (1) If the Vendors of the property are joint owners and are husband and wife no consent is needed on either the Contract or Deed. In all other cases, the Contract will be void unless the prior written consent is given by the Vendor's spouse. This is usually endorsed on the Contract in some form of words, like the following: "I being the spouse of the within named Vendor HEREBY CONSENT to the proposed sale of the property described in the within Contract at the price of £ and hereby irrevocably agree to endorse a consent in writing on any assurance of the said property by the Vendor in furtherance of the within Contract for the purposes of Section 3 of the Family Home Protection Act 1976". The undertaking to execute a Consent on the Deed is, of course, not essential but is clearly advisable, in the case of a spouse having consented to the Contract but refusing to consent ot the Deed. Neither is it essential that the consent be endorsed on the Contract. If the consent is a separate document, however, it would have to be more explicit. In the case of a sale by auction (as a prior consent is necessary) the Vendor's Solicitors should arrange to have the spouse present at the auction to endorse consent on the Conditions of Sale or, failing that, have a separate consent to a sale at not less than a stated price signed by the spouse prior to the auction. The Solicitors for a prospective Purchaser should enquire, prior to the auction, that the appropriate consent is, or will be, available. (2) If one spouse is the owner, the prior written consent of the other spouse must be given to the Deed. This is usually endorsed on the deed in some form of words, like the following:

"I being the spouse of the within named Vendor HEREBY CONSENT for the purposes of Section 3 of the Family Home Protection Act, 1976, to the sale by the Vendor of the within premises for the sum of £ Some Solicitors, particularly in the country, have adopted a practice of including the consenting spouse as a party to the Deed and including the form of consent as an extra Certificate in the Deed. If this is done, the Certificate should specify that the consenting party has executed prior to any of the other parties to the Deed and care should be taken to see that this is actually done. This seems to be a very good practice which should be adopted more generally because, particularly in unregistered land, the Certificates will be an important document of title for at least 12 years and if they are on a separate piece of paper, they may get lost. In addition, the consent can be recited in the Memorial of the Deed and if, by any chance, a Deed incorporating the consent was lost, there would be some strong evidence to verify that a consent was included in the Deed. (3) Because of the awful implications of a Deed being void, it has become normal practice for a Purchaser's Solicitor to ask for a Statutory Declaration to be furnished to verify that no consent is necessary because the Vendors are joint owners and are married to one another or that the person who executed the Consent is the correct person to do so. Some Solicitors disapprove of this practice and point out that it is not normal practice to ask for verification that the signification that the signature of the Vendor to the Deed is the signature of the correct person. However, there have been very few examples of persons who succeeded in selling a house they did not own. With the increasing number of cases involving matrimonial problems, there are plenty of people who would attempt to sell the family home without their spouses's consent if they could. We feel that a Solicitor should ask for verification by way of Statutory Declaration to protect themselves and their clients. It is normal for such a Declaration to exhibit a Marriage Certificate. Again, some Solicitors argue that this Certificate should be a State Marriage Certificate and if one wants to be able to satisfy any Purchaser's Solicitor, it is safest to get a State Certificate. The Law Society Conveyancing Committee is investigating the validity of this particular point and a practice note will be published as soon as possible. Precedents of the type of Declarations generally acceptable in both of these instances are attached, numbered Precedents One and Two. Land Registry If the property is registered in the Land Registry the Registrar of Titles is concerned with the question of the Family Home Protection Act because there is a general obligation on him to register only valid Transfers. If the Transfer is by two joint registered owners who are married to one another, the Registrar of Titles will require to be furnished with a Declaration such as that at Precedent Number Three to be satisfied that there is no other person whose consent should have been obtained. He will not think it reasonable to be expected to draw

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