The Conveyancing Committee has had another extremely busy and productive year, with much progress being made on many of the committee’s agenda items.
Throughout 2023, committee meetings have been hosted monthly in a hybrid manner, with members attending either online or in person. Attendance at these committee meetings has been excellent, and engagement on all of the agenda items has been positive and enthusiastic. The long-standing outgoing secretary, Catherine O’Flaherty, retired from the Law Society in early 2022 and, for much of that year, the work of the committee was supported variously by a number of people, including Catherine for a period of some weeks up to December 2022. The current secretary, Deborah Leonard, took up the position on 12 December 2022.
The committee’s primary focus for 2023 is conveyancing-practice reform. It continues to work on the Master Submission for 2023, which concentrates on law reform concerning the Draft Planning and Development Bill 2022, the status of contract deposit (Protim Abrasives case), the Statute of Limitations, the area of statutory declarations and statements of truth in conveyancing, the Fines (Payment and Recovery) Act 2014, property taxes, and electronic signatures and the electronic exchange of contracts for sale.
Finally, there has been engagement by the committee with the Local Government Management Agency (LGMA) on the issuing of letters regarding the status of roads and services abutting properties in sale. The vice-chair continues to liaise with the LGMA with a view to streamlining the process for solicitors, and there has also been engagement with Dublin City Council in this regard, which has indicated a willingness to run a pilot project. The aim of the committee is that reliable information regarding the ‘in-charge’ status of roads and services will be made available online in a format that can be relied upon. It is hoped that all of this reform will lead to a much more seamless experience for the consumer when buying and selling property.
There continues to be ongoing meaningful engagement with the Society of Chartered Surveyors (SCSI) with a view to publishing a joint guide to selling or purchasing a home, so that consumers are encouraged to instruct their solicitors regarding a property transaction earlier than they might have in the past, with a view to improving the timeline from the date of ‘sale agreed’ to the date that land contracts and copy title are issued to the buyer. This early engagement would speed up the transaction timeline. The outcome of this collaborative approach with SCSI could lead to positive public engagement through the media, and the committee secretary is liaising with the Law Society in this regard. A key area of reform for the committee continues to be the role of lenders in the conveyancing process.
The committee is aware of the various bulk transfers of mortgages by lenders in late 2022 and early 2023, particularly the transfer of mortgage loans from KBC Ireland to Bank of Ireland Mortgage Bank and from Ulster Bank to Permanent TSB. This has created substantial difficulty for consumers and our members in identifying where their title deeds are held after the transfer, and also some difficulty regarding the redemption of their mortgage loans on a sale. The committee receives a wide variety of queries with regard to these transfers, and the secretary continues to deal with these queries, as and when they arise.
Aside from the difficulties experienced by members regarding these bulk transfers, members continue to experience long delays in relation to taking up title deeds, difficulties regarding stage payments to borrowers and the redemption of loans, onerous loan-offer conditions, and other non-legal requirements that lenders continue to attempt to foist on solicitors. The committee has been monitoring each lender’s compliance with the Certificate of Title system and has had multiple meetings with lenders regarding the various difficulties experienced by members. The committee has admitted Avant to the Certificate of Title system in Q1 2023, and admitted Finance Ireland in Q2, which is a positive outcome for the public and the consumer. We continue to address the various issues being experienced by members on a daily basis. While, on the whole, engagement with the various lenders has proven positive, the committee believes that law reform may be needed to compel lenders to invest in their systems and practices for their outgoing customers. The delays in this regard can often lead to delays of weeks and, in some cases, months before solicitors can prepare conditions of sale and copy title for properties in sale.
Throughout 2023, the Building Agreement Task Force continued its work in undertaking a full review of the building agreement for new homes. This task force aims to publish a combined contract for sale and building agreement for a new- home sale in a typical residential estate. This work is nearing completion and it is hoped that a new revised template will be available by Q4. This should prove very useful for practitioners as the sale in the new- homes market continues to increase.
The committee is close to completing its review of the 2019 General Conditions of Sale, and it is hoped that the revised 2023 General Conditions shall be available by the end of Q3.
This is the first full review of the conditions since the 2019 conditions were launched, which changed conveyancing to a pre-contract investigation-of-title system. This may provide for the digital execution and exchange of contracts for sale, and it introduces a new condition dealing with data protection. It also places the obligation on a vendor to provide a Land Registry map in a sale of a part folio on a contractual footing whereas, previously, a purchaser would have been relying on the Requisitions on Title in this regard. The committee hopes that the amendments to the 2019 General Conditions shall reflect changes to market practices experienced by practitioners. A revised note of sample special conditions shall accompany the 2023 General Conditions and there shall be a detailed explanatory memorandum outlining the changes to the profession, which should be very welcome.
A significant volume of work was completed by the Landlord and Tenant Task Force with regard to the green lease clauses, which are now published on the Law Society’s website. This was the end result of much engagement between the task force members and the Chancery Lane Project Group. The committee previously published a specimen rent-review provision in a lease that was particularly well received.
Throughout 2023, there was much meaningful engagement between various members of the Land Registry Task Force and Tailte Éireann, and the committee secretary attended the official opening of Tailte Éireann in March 2023. The judgment in BOIMB v Hade prompted many queries to the committee, which responded in a timely manner with an urgent guidance note to the profession published in the June 2023 Gazette, and again in the eZine, to prompt further engagement by members with the committee secretary. This judgment led to the Land Registry effectively placing a ‘hold’ on all applications for registration of all receiver-related transfers, creating much uncertainty for the profession. Engagement with Tailte Éireann remains ongoing.
With regard to other applications for registration in Tailte Éireann, the committee continues to be concerned with the delays being experienced by members with applications for registrations, particularly in first registrations or registrations involving a transfer of part of a folio where mapping is required. Many applications are taking several years to complete, and thus increasing costs and risks for many practitioners and their clients. Following engagement with Tailte Éireann, the committee has been advised that Tailte Éireann has made the reduction of this backlog a priority throughout 2023 – the committee continues to monitor the situation.
Two committee members have taken responsibility for the complete updating of all Family Home Protection Act declarations to take into account the 2019 act, and are continuing to liaise with a number of members from the Law Society’s Family and Child Law Committee in respect of same. The full suite of new declarations should be available for practitioners in Q4 2023.
There is much work ongoing between members of the Conveyancing Committee and members of the Business Law Committee regarding the ongoing work on the area of electronic signatures. The Conveyancing Committee continues its engagement with members of the Technology Committee and the Business Law Committee in this regard.
The committee’s proposed submission on the Planning and Development Bill 2022 involved considerable productive consultation with members of the Environmental and Planning Law Committee insofar as it relates to conveyancing practice.
In addition to all of the above, substantial work has been completed in the area of property taxes, with almost monthly engagement by the committee with Revenue on various topics, such as Local Property Tax (LPT), Vacant Home Tax, and Residential Zoned Land Tax. A practice note regarding LPT is due to be published soon as a result of engagement with Revenue, and the committee continues to enjoy a very collaborative relationship with the Revenue Commissioners. In light of these additional taxes and other changes in law, the committee has re- established its task force to refresh the Requisitions on Title.
Alongside the above activities, the committee continued to deal with a high volume of day-to-day practice queries from conveyancing solicitors.
The committee’s telephone and email helpline, run by the committee secretary (email@example.com) dealt with approximately two to three queries each day.
Between January and June 2023, there were 35 new written queries for consideration at the committee’s monthly meetings, along with a rolling agenda of almost 50 ongoing topics. Considerable effort continues to be made to move and settle many agenda items. The committee also uses a project tracker to monitor progress on various issues.
Between January and June 2023, three new practice notes were issued, with another three almost ready for publication. There was one ‘reminder note’ in respect of accountable trust receipts (ATRs) issued, and one guidance note regarding the Hade v BOIMB matter.
The committee is also focusing on the publication of a number of articles on cybercrime in the Gazette during 2023. While these articles are not limited to the area of conveyancing, they have been very well received by members since the publication of the first cover-story article in June 2023. The committee secretary continues to liaise with Tanya Moeller and Nicola Kiely regarding the publication of five more articles before the end of Q4 2023. These articles focus on the growing awareness among members of cybercrime and provide information on how to avoid cyber- security breaches.
Our Annual Property Law Conference in October will update the profession on the various practice notes that have issued this year, the Master Submission to Government, and the 2023 General Conditions of Sale. The committee aims also to provide an insight into the updates on landlord- and-tenant law since the end of 2022 and is continuing to work on the conference agenda.
Renewed thanks are due to all committee members, consultants, and vice-chair Eleanor McKiernan, who continues the work of the committee.
Michael Walsh | Chair