The Gazette 1983

SEPTEMBER 1983

GAZETTE

Practice Notes

An Unmarried Company?

Valuations of Immovable Properties

Recent co r r e spondence to the Conveyancing Committee has shown that there is reluctance to answer any question on the Family Home Protection Act where the Vendor is a company. This is presumably based on the view that, since a company cannot have a spouse, no requisition under the Family Home Protection Act is therefore appropriate. However, the recent case of Walpoles (Ireland) Limited - v- Jay and obiter dicta in other cases have highlighted the fact that in certain cases it is necessary to make enquiries where it is believed a person, other than the Vendor or his predecessors in title, has been in occupation of any part of the property as a "family home". In Walpoles (Ireland) Limited -v- Jay, the Vendor was a company but the Purchaser was on notice that the residence situate on the property had been occupied by a Director of the Vendor company for a number of years. It was held that while there was nothing which could make void the conveyance of the property by the Vendor Company nevertheless the Purchaser was entitled to make enquiries as to the nature of the interest (if any) held by the Director in the property and as to the termination of that interest. The problem arises from the wide definition of both "interest" and "conveyance" in the Act. "Interest" means "any estate right title or other interest legal or equitable". "Conveyance" includes "a mortgage, lease, assent, transfer, disclaimer, release and v any other disposition of property . . .". It is therefore the view of the Conveyancing Committee that where a Purchaser is aware that any person, other than the Vendor or his predecessors in title has been or is in occupation of the property as a "family home", then additional requisitions should be raised. This could arise in circumstances similar to that in Walpoles (Ireland) Limited -v- Jay where a Director or other employee of a Vendor company is in occupation, where another married member of the Vendor's family is in occupation or where the property has been occupied by tenants. In the light of the foregoing the standard form of requisitions linder the Family Home Protection Act have been revised and are circulated with this issue of the Gazette. When considering the reply to be given to the standard requisition 51 (a), the attention of practitioners is drawn to the definition of "family home" in Section 2 of the Act. It "means, primarily, a dwelling in which a married couple ordinarily reside". The requisition is not confined to whether the property is the Vendor's "family home". Note: These Requisitions require a civil marriage certificate (i.e. a Certified copy of Entry in the Marriage Register Book) to be exhibited in the statutory declaration. Such a certificate is clearly the best supporting evidence of the marriage which can be produced and should be furnished. This does not mean that a Purchaser or Lender should not be prepared to accept the next best supporting evidence such as a Church Marriage Certificate in circumstances where there are valid reasons why a Civil Marriage Certificate is not available on closing. • 217

The Society has been in discussion with the Revenue Commissioners concerning delays in agreeing valuations. The Chairman of the Revenue Commissioners has been asked to ensure that cases are not sent to the Valuation Office as a matter of course, but only when there is doubt as to the veracity of the valuation. The Chairman of the Revenue Commissioners has suggested that it might be of advantage and help to expedite matters if, when submitting cases involving valuations of properties, a realistic valuation was submitted in the first instance, with a view either to acceptance or immediate negotiation, and thereby avoid the Revenue having to submit the valuation to the Valuation Office. It would be helpful in submitting the valuation for the property under review, if the auctioneer/valuer were asked to furnish values for comparable local properties for forwarding to the Revenue. Such an approach would bring about speedier settlements. The Chairman of the Revenue Commissioners encourages solicitors to make every attempt to agree valuations by negotiation at as early a stage as possible. It has already been suggested in previous notifications that if the members of local Bar Associations get together, a number of cases could be taken together, and a repre- sentative from the Valuation Office would attend at an agreed office in the area with a view to negotiation of all such cases. The Chairman of the Revenue Commissioners is conscious of the Society's representations to expedite all matters requiring adjudication and Valuation Office agreement and is taking steps to improve on the existing situation within the staff constraints imposed on him. •

Stamp Duty on Assents

An Assent must be in writing (Section 52, subsection 5 of the Succession Act 1965). It is not necessary that the Assent be sealed. Accordingly, there is no need for the Personal Representative to sign and seal an Assent. It is sufficient that he signs the Assent. If the Assent is under Seal then Stamp Duty of £5 is payable. If it is not under Seal there is no need to stamp the Assent at all. (S.52.(8) Succession Act 1965). Where the tide is registered in the Land Registry the Assent must be lodged in the Registry for registration. If the title is unregistered it is recommended that the Assent should be registered in the Registry of Deeds. •