Friday 18 July 2014

Buying or Selling Residential Property- Why do I need a Solicitor?

The practice of buying and selling property, is often a very technical process. The necessity to engage a Solicitor in this process, is owing to the fact that, the Solicitors engaged in carrying out such work, are obliged to ensure that it is in fact, ‘good marketable title’ that is being bought or sold.

Good marketable title is based on a number of elements. For example, a Solicitor must ensure that the property is free from any burdens or conflicting rights, such as, rights of ways affecting a property - whereby another property owner has an entitlement to use the property being sold or acquired, in some way. It must be noted that, if the property is not free from any types of burdens, the duty falls on the Solicitor to ensure that the position with any adjoining property owner, staking a right over the property being sold, has in fact been regularised and indeed registered in either the Land Registry or the Registry of Deeds, thereby ensuring its validity.

Another example is where a neighbouring property may have been constructed in such a way that, they may have service pipes crossing underground, onto the property in sale. An easement or wayleave agreement, would need to be in place to ensure the situation is properly regularised. Once again the duty is on the Solicitor here, to ensure that the title being acquired is deemed ‘good marketable title’ and that should the parties involved look to sell it on in the future, that matters do not arise that would prohibit a prospective purchaser from wanting to acquire same.

From the point of view of lending institutions, any Bank offering a mortgage these days will insist on the relevant paperwork to support the fact that the title is in order , to ensure that there is no issue in respect of their security over same. It is the duty of the engaged Solicitor to ensure that there is adequate paperwork in place, to support that the title is in fact a sound investment and therefore ensuring a client’s mortgage application progresses accordingly.

Same can be said for any planning permission issues that may arise, on inspection of the title documentation. For example, if there is an unauthorised development on the property (extension/ attic conversion, constructed without planning permission), what is the position in terms of acquiring this property with such an unauthorised development? The engaged Solicitor must seek out an appropriate solution (which can be lengthy in duration), through the local planning department, to avoid potentially having to pull down any unauthorised development, to make the property saleable.

Issues can also often arise, in respect of proper access to a property and we as a practice have come across properties that have been sold without having any proper access in place, which ultimately means the property was land locked! It goes with saying that such a property would not be deemed a good investment without the highlighted problems being remedied, furthermore, it would be highly unlikely a Lending Institution, would approve a Mortgage to purchase a property with such defects. Remedial work in this regard, may involve contacting the neighbouring properties and land owners, to agree on regularising the position so that access can be put in place, along with remedying any maps accordingly. This is followed by registration of the correctly drafted supporting documents, in the Land Registry of Ireland.

The process of drafting title documents, is a very technical process and poorly drafted title documentation , can lead to problems down the road, if certain aspects require clarification, as they are deemed too ambiguous/unclear. This can be particularly problematic, if they were drafted decades ago!

It is also critical for any Solicitor buying a property of this nature, to closely familiarise themselves with the mapping associated to the title documentation and this can also require the engagement of an engineer or architect, to attend at the subject property to clarify any irregularities.

Another key question that a Solicitor must ask is, does the party selling the property have the authority to do so? In an age whereby banks have control over many assets and are calling in their loans and securities, it is fundamental, that bank approval of the sale is obtained. Furthermore if any Family Homes are being sold, it is also a legal requirement that the written and declared approval of the spouse is obtained to ensure it is in fact a valid sale.

The above is just a brief outline of some of the factors to be considered by a Solicitor when buying and indeed selling a property on behalf of a client. The engaged Solicitors are effectively carrying the risk on the client’s behalf, that should the property being bought or sold, not be deemed good marketable title, the Solicitor will ultimately be culpable for same. Suffice to say, they are therefore leaving themselves exposed to a potentially disgruntled seller or buyer, come the time they wish to sell on their interest in the future.

Wesley Hudson BA (Hons)



Dun Laoghaire, Co. Dublin.


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