The Conveyancing Committee receives regular queries from practitioners about the best conveyancing practice in relation to family law declarations since the PRA stopped reviewing them as part of its registration procedure.

Despite the fact that the PRA does not review the situation regarding family law as part of the registration procedure, the committee is of the opinion that, in order to discharge their duty of care to purchasers, solicitors should continue to ensure that they obtain family law declarations in the appropriate format in every conveyancing transaction, and furnish these to the PRA when applying for registration of their client’s deed.

In Guckian v Brennan (1981 IR 478), the High Court held that purchasers are entitled to rely on the register as conclusive evidence of the title of the owner of property, as is made quite clear by section 31 of the Registration of Title Act. That case was a test case on foot of a vendor and purchaser summons, backed by the committee, to prevent the growing practice at that time of solicitors seeking family-law documentation in relation to previous transactions, instead of relying on the PRA register as conclusive evidence.

In that case, the judge said that the Registrar of Titles had a duty to register only valid transfers and, in the circumstances, it is still the committee’s recommendation that family-law declarations are essential to registration of title, and solicitors should continue to lodge them in the PRA with applications for registration. The committee is of the firm opinion that the PRA is not correct to elect to take the view that purchasers’ solicitors are responsible for ensuring that all is in order in relation to family-law documentation and that it, the PRA, may rely on that assumption to discharge its duty to register only valid transfers.

The committee has been asked what a solicitor is to do in regard to prior family-law documentation when preparing a contract for sale. The committee is quite clear that a contract for the sale of registered land should be prepared on the basis that the purchaser will be entitled to rely on the conclusiveness of the register where the vendor is registered as owner in the Land Registry, and a purchaser’s solicitor should not seek any prior family-law documentation.

The position is different if the vendor of a registered property is selling as the person entitled to be registered as owner. If the transfer to the vendor has not been registered in the Land Registry, the purchaser should inquire into the family-law documentation that the vendor has relied on when purchasing.

If the property is the subject of a first registration application that has not been completed, the purchaser’s solicitor should inquire into the family-law status of all relevant prior transactions as part of the normal investigation of the Registry of Deeds title to the property.

The committee has also been asked what a purchaser’s solicitor should do with the prior family-law documentation when the purchaser has been registered as owner in the Land Registry. The committee had previously advised that such documentation should be retained with the title documentation. The committee has reconsidered this view, and now believes that prior family-law declarations should be retained by the purchaser’s solicitor, rather than being included with the title documentation, where it might be discarded as being no longer relevant. This is because the purchaser is the party who may need it in the case of some issue arising in that regard. The purchaser’s solicitor should keep such documentation with the conveyancing file for the recommended period before shredding. The period currently recommended by the Law Society for retention is 13 years, but practitioners may have their own policies.