The Conveyancing Committee has been advised by the Department of Environment, Community and Local Government that it is proposed to commence section 48 of the Environment (Miscellaneous Provisions) Act 2015 on 1 January 2016.

Following a recent meeting between representatives of the committee and representatives of the department and Irish Water, it has been confirmed with the committee how subsections (4) and (5) of section 48 of the act will affect conveyancing practice and procedure and how these matters will be dealt with on an operational basis by Irish Water. It has been confirmed to the committee that Irish Water will also be advising its customers of these requirements.

It is clear to the committee that, given the obligation placed by this legislation on a vendor’s solicitor, it will be necessary for vendors’ solicitors to notify vendors at the initial instructions stage of a sale transaction that they will have difficulty acting in the sale if the vendor does not wish (whether as a matter of principle or otherwise) to pay any charges due to Irish Water in respect of the property.

Practitioners should also note that the definition of ‘sale’ includes a voluntary transfer.

The committee sets out below a note of the effect of various subsections of section 48, including the two subsections dealt with by recent correspondence from the department.

Obligation of vendor

Section 48(2)(a) provides that the owner of a dwelling proposing to sell that dwelling shall pay to Irish Water any charge under section 21 of the Water Services (No 2) Act 2013 in respect of the dwelling payable by the owner to Irish Water, including any such charge payable by the owner by virtue of section 23A(4) (as inserted by section 47 of the 2015 act) of the 2013 act (where the owner has failed to notify Irish Water of the name of the occupier of the dwelling).

Section 48(2)(b) provides that the owner (as above) shall provide to his or her solicitor a certificate of discharge from Irish Water confirming that any such charge has been paid, or a statement from Irish Water that any such charge is not the liability of the owner.

Obligation of vendor’s solicitor

Section 48(3) provides that, where the vendor fails to provide the certificate or statement as referred to above before the completion of the sale, the vendor’s solicitor shall, before completing the sale, request from the vendor a statement from Irish Water setting out the amount of the charge (if any) under section 21 of the no 2 act of 2013.

Section 48(4) provides that, where a vendor of a dwelling has not provided the solicitor with a statement from Irish Water setting out the amount of charge (if any) payable to Irish Water, the vendor’s solicitor shall, before completing the sale, request such a statement from Irish Water. Where this arises, the solicitor should submit a request on headed notepaper to Irish Water setting out the name of the vendor and the address of the property. A scanned signed copy of this letter may also be submitted electronically to Irish Water.

Irish Water will aim to issue any certificate to the solicitor within five working days of receiving the request.

Irish Water says it will issue any relevant documents in the post for data protection reasons, as email would not be a secure method of communicating personal data (that is, outstanding arrears).

Section 48(5) provides that the vendor’s solicitor shall withhold from the net proceeds of sale remaining (if any), after the discharge of all mortgages and other liabilities relating to the sale, the amount (if any) set out in the statement provided to the solicitor under subsections (3) or (4), as the case may be, and remit that amount to Irish Water within 20 working days of the completion of the sale of the dwelling.

Section 48(7) provides that Irish Water shall provide a receipt to the vendor’s solicitor in respect of any amount remitted to it under subsection (5).

Section 48(8) provides that a receipt provided to the vendor’s solicitor under subsection (7) shall be in full and final settlement of any obligation imposed on the vendor’s solicitor under this section.

No net proceeds of sale

In the event that there are no ‘net proceeds’ available to pay the water charges, the vendor’s solicitor should notify Irish Water of this within 20 working days. The department has advised that Irish Water will acknowledge receipt of such a notification and that no further action is required by the solicitor. The department has confirmed in recent correspondence what it and Irish Water said at the meeting with the committee – that is, that where this situation arises, there are no implications for the purchaser of the property (that is, there is no provision for a charge on the property), insofar as the liability for unpaid charges would remain with the vendor. It would remain open to Irish Water to pursue the vendor for these unpaid charges by other means.

Relevant contact details for Irish Water

• By phone – solicitors can request the documents by calling LoCall 1890 448 448 or 01 707 2824 (8am-8pm, Monday to Friday, and 9am-5.30pm on Saturday) with the account number and WPRN relating to the property (found on the top-right corner of the Irish Water Bill),
• By post – solicitors can send a letter on their headed notepaper setting out the name of the vendor and the address of the property and requesting the documents to Irish Water, Request for Statement of Charges/Certificate of Discharge, PO Box 860, South City Delivery Office, Cork City, Cork,
• By email – solicitors can send a scanned signed letter on their headed notepaper requesting the documents to customerservices@water.ie. (Irish Water says this will be received and processed sooner than postal correspondence.)

The committee continues to monitor this matter, and members are asked to keep the committee advised of any operational difficulties they encounter.