The Gazette 1981

conclusions from the fact that the owners are described as, for example, John Smith and Mary Smith and they live at the same address. It is not unusual for a brother and sister to own property jointly and one of these could have a spouse living in the property whose consent would be required under the Act. If the Deed is by a Vendor with a consent endorsed on it, the Registrar of Titles will not require verification that the consent is by the correct party. Unregistered Property If the property for sale is unregistered land, the only matter of importance is that the consent is forthcoming for every appropriate transaction since 12th July, 1976 and that any Declarations to vouch the position should be retained with the Deeds as important documents of title for at least 12 years. Where The Premises are not a Family Home (1) At Contract stage, a Solicitor acting for a Purchaser should enquire as to whether the sale is one in respect of which a consent will arise so that, if necessary, it can be endorsed on the Contract. It is good practice for a Solicitor acting for a Purchaser to ask his clients and take a note as to whether the property appears to be a family home from any information which the Purchaser has gleaned from seeing around the house. (2) On the completion of the purchase, the Purchaser will require verification as to the circumstances in which the property is not a family home. Generally, what is required is a Statutory Declaration stating that the premises are not a family home and setting out in full the reasons why they are not a family home. The reasons can be manifold. The Vendor's family home may have been elsewhere. The Vendor may never have married. He may have been divorced and remarried and his first wife may never have resided in this house. Great care must be taken by the Purchaser's Solicitor where the premises are not a family home to make sure that all reasonable enquiries have been made. Mr. Justice McWilliam in his judgment in the case of Hegarty v. Morgan commented that he hoped it was not becoming conveyancing practice to furnish in such cases a Declaration which says simply that the property is not a family home. In his opinion, a Declaration should go on to state the basis on which it was stated not to be a family home. The Solicitor acting for a Purchaser should try and insist on getting the best evidence available as to the position. If the Vendor is married, the best evidence would be a Statutory Declaration by his spouse. The logic behind this is that the only person who could attack the-validity of a Deed later is the spouse and, if at all possible, the Declatation verifying the position should be obtained from him or her. If the Vendor is not married, a Declaration as to the position by the Vendor should be sufficient. When buying a property which is not a family home a crucial point will be the date of execution of the declaration. This must be dated on or after the date of the deed. For example, if a vendor is selling a property which is not a family home; the Vendor is unmarried he will hand over on closing the executed purchase deed together with a declaration verifying that he or she is unmarried. If the deed is

undated (as they usually are) and the declaration was executed say two weeks before completion (which is not unusual) the purchaser could have a problem if he is reselling within twelve years. A Purchaser from him could rightly point out that the Vendor could have married and ordinarily resided in the property with his wife between the date of the declaration and the date of the deed., By then the person who executed the deed may be difficult to find. This problem has been exaggerated in a few cases. We came across a case in which the Purchasers Solicitors had held the deed for a few months waiting for the client to pay the stamp duty and then up-dated the deed which was still undated to avoid a penalty. This was surely a case of "out of the frying pan" . . . The solution to this is simple. Deeds should be dated the date of first execution which is the strictly correct practice anyway. A Certificate of Escrow can be given on closing if there is any appreciable period between execution and the actual closing of the sale. Annexed are certain precedent Statutory Declarations which are generally acceptable in the following circumstances: Precedent Number Three Where the Vendor has never married. Precedent Number Five Where the Vendor is divorced or living apart from a spouse who has never lived in the property the subject of the transaction. Precedent Number Six Where there is no building on the property and it is not part of the garden or land used in conjunction with or for the convenience of the family home. Land Registry Where the property is registered in the Land Registry, the Registrar of Titles is also entitled to the best evidence available as to the position. On the basis of the comments of Mr. Justice McWilliam in the case mentioned, he will not accept a Certificate in the Deed stating that the property is not a family home. He will accept a Statutory Declaration by the Vendor or the Vendor's spouse setting out the basis on which the property is not a family home. As a concession to the Solicitors' profession, he will accept a Certificate from a Solicitor that the property is not a family home. The Law Society do not advise Solicitors to give such a Certificate because it can be very difficult to be sure in some cases as to whether a property was a family home or not and there is absolutely no reason why a Solicitor should take responsibility in a matter where there is no need to. We advise Solicitors to give their own Certificates only in cases of the clearest possible personal knowledge and certainly not on the basis only of information given to him or her by the client. When a Solicitor is acting for the Purchaser of registered land, he clearly must look into the position in so far as the Vendor and the Family Home Protection Act are concerned. Many conveyancers had serious doubts as to whether they should also investigate the position under the Family Home Protection Act in Precedent Number Four Where the Vendor is a Widow or Widower.

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