The Gazette 1989

OCTOBER 1989

GAZETTE

From the President . . .

would only affect property if registered with the Land Registry or Registry of Deeds, it would con- siderably simplify the conveyancing process. If likewise there was only one register to cover all planning matters including road proposals and compulsory purchases, would it not be helpful? I suspect sug- gestions of this nature might be found too radical to be accepted by Government. The Report is a most interesting document and I would recommend it to all solicitors who have an interest in conveyancing. Some of the provisions included in the U.K. Law of Property (Mis- cellaneous Provisions) Act, 1989 might also merit consideration in- cluding one that deeds need not be written on paper or parchment nor need there be a seal for valid execution of a deed by an in- dividual. Another interesting pro- vision is that a contract for the sale or other disposition of an interest in land can in future only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or when the contracts are ex- changed in each of them. The requirement that the contract must incorporate all the terms which the parties have expressly agreed coupled wi th the general rule that a solicitor does not have implied authority to enter into a contract for sale or to purchase a property on behalf of his client should do away wi th a lot of problems for solicitors in t hat jurisdiction. Perhaps the relevant authorities might take these points into account when they come to prepare I hope in the very near future some legislation to improve and to simplify the conveyancing process. • MAURICE R. CURRAN President

2. Ame n dme n ts to t he rule against perpetuities particularly in relation to options and easements; 3. Amendment of the position of Judgment Mortgages regis- tered between the making of a contract for sale and complet- ion of the transaction; 4. Abolition of the rule whereby damages cannot be awarded in an action for breach of contract against a vendor who has failed to show good title. I was amused to read their recommendation that the fee tail estate should not be abolished! Twice in a professional career extending almost to 30 years, have I come across a fee tail and in each case have immediately barred the entail and turned it into a fee simple. I find it difficult to believe any lawyer would advise the creation of a fee tail today. Some of these recommendations (and items I have not mentioned) may seem somewhat remote to most practitioners but the section where they deal wi th rectifications of problems arising from modern legislation will be more readily appreciated. In particular, recom- mendations that the Family Home Protection Act be amended to avoid the need for enquiry into the giving of consents in prior transactions, that section 27 of the Local Government (Planning & Develop- ment) Act, 1976 be amended to include a five year time limit on the bringing of applications for either unauthorised developments or unauthorised uses, the amendment of section 45 of the Land Act so as not to prevent the vesting of an interest in land that is neither agricultural nor pastoral and is less than t wo hectares, and the re- commendation that the Landlord & Tenant Act should be amended to allow parties contract out of the provisions of Part II of the 1980 Act as it applies to business tenancies provided both parties have in- dependent legal advice, seem to me very useful. One area I should have liked to have seen dealt with is the question of searches. If it was arranged that bankruptcy, lis pendens, and revenue claims for inheritance tax

I have recently during the year discussed the need for greater law reform in this country but the recent publication of a Law Reform Commission Report on Land Law and Conveyancing Law persuades me to return to the topic. This Report was prepared by a working group headed by John F. Buckley, Law Commissioner, and including colleagues, Ernest B. Farrell and Rory McEntee as well as Miss Justice Mella Carroll, Professor J. C. Brady, George Brady S.C. and Mary Laffoy S.C. The Group has concentrated on matters which occur in a significant number of conveyancing trans- actions which give rise to un- reasonable delays in completion. They qualify their recommen- dations by pointing out that delays in the Land Registry will limit the effectiveness of any of their proposals to be implemented. With this I can most certainly agree. Over thirteen months to register a dealing and 4 2 , 0 00 dealings waiting to be dealt with, illustrates how serious the situation has become. The point is also made that some 22 years after the Act came into force, only three original counties, Carlow, Laois and Meath, have compulsory registration. I am amazed that there is not a public outcry over the Land Registry situation, which is an issue the Law Society is constantly pushing wi th the Department of Justice. Amongst the recommendations of the Law Commission are: 1. A reduction of statutory period of title from 40 years to 20 years;

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