Talking Property: What your solicitor does for you when you buy a house is more complicated than you think, writes Carol Coulter, Legal Affairs Correspondent
You may think that your solicitor's bill for services, which can amount to 1 per cent of the purchase price of the house you buy, is a lot. But a lot hangs on it, and it may not be wise to go for the cheapest option. You need to make sure that your solicitor is careful and thorough.
If the house you fancy is for auction, the first thing your solicitor will do is investigate its title. He will write to the solicitor for the vendor - this is why the vendor's solicitor's name is always given when houses are advertised for auction - asking her to send over the contract and title. Everything but the purchaser's name will be on the contract. If all is in order, your solicitor will advise you to have the property surveyed. If the survey turns up a problem, he will draw it to the attention of the vendor's solicitor.
On the day of the auction you may ask your solicitor to bid for you. He will have sought clear instructions, in writing, on the amount you are prepared to go for the house. If the bid is successful, you agree to purchase the property. At this stage, it is "subject to contract", and this will depend on everything about the title being in order.
Many issues can arise with the title. There are two types of title, those with the Land Registry, and those registered with the Registry of Deeds. Titles lodged with the Land Registry are guaranteed by the state, and carry a folio number.
If the property is registered in the Registry of Deeds, you need to examine every single deed that pertains to it. That means that every transaction it may have gone through needs to be looked at. The older a property is, the longer its deeds need to be looked at.
All kinds of problems can crop up. The registration of deeds goes back to the 1600s. But some may no longer exist. For example, the fire in the Four Courts in 1922 destroyed many public records. If a problem crops up, it will be drawn to the attention of the vendor's solicitor. It may be necessary to rectify the title. This could involve finding someone around who knew what happened, and can "rectify" it, by swearing what happened during a transfer several transactions ago.
This is not an academic problem. If the property does not carry "good, marketable title" a mortgage-giver will not offer a mortgage on it. It is the solicitor who certifies the title for the bank. Since 1976 all vendors of property need to have a Family Home Protection Act declaration as well.
Given that titles in the Land Registry are state guaranteed, why are all titles not registered there? A lot of property-owners did not bother. Some local authorities have compulsory registrations with the Land Registry. Others have a policy of now registering all their own property. The rest is up to individuals.
Registration does cost money, though not a lot, in the context of the overall cost of buying a property. There is a sliding scale for registration, which ranges from €300 to €600, and the registration of a mortgage costs another €25.
If the property is registered in the Land Registry, there is a four-page folio that travels with the title, rather like a car log-book. You will need an up-to-date folio and filed plans, which cost another €25.
If you are registering in the Registry of Deeds, you need a purchase deed, costing €44, and to register the mortgage, also costing €44.
Other problems can occur. When you or your solicitor comes to examine the folio and the map it could show, for example, that a neighbour has right of way over your property, or that a right of residency has been guaranteed to an elderly relative still living. Tax issues can arise. If you are the purchaser, you need to be sure you have a certificate of discharge of any capital acquisitions tax accruing to the property. Otherwise the Revenue Commissioners could come after you.
There may be planning issues. Your solicitor will ask the vendor's solicitor if there were any "alterations, developments or extensions" since the vendor acquired an interest in the property and, if so, are there architect's certificates stating that all planning requirements have been complied with.
If the property is an apartment, or a new house, different issues will arise. You will receive plans and specifications rather than a map. You will have engaged an architect to check for snags in the final building. There is no need to draft a purchase deed or raise requisitions on the title. But other issues can arise, like the conditions attached to the handing over to a management company of the common areas in an apartment block, and the cost of common services. All of this is done before the contract is signed. Everything is still "subject to contract", and nothing is finalised until the contract is signed and the full deposit paid and accepted. You then sign two copies of the contract, which are witnessed. They go to the vendor's solicitor, are signed by the vendor and returned to your solicitor.
After this, the solicitor will draft a purchase deed, based on the title of the property. This is sent to the other solicitor, with any "objections and requisitions" on the title raised with her. Searches are then carried out by law searchers, who visit the Land Registry, the Registry of Deeds, the Bankruptcy Office, the planning authorities, or any body that might have a record of a problem with the property. If nothing turns up, the solicitor can reply "on title" to this query, and the way is clear for the closing.
Meantime, you will have had to get life insurance and comply with other requirements of the lending organisation, or you will not be given the loan cheque, and will not be able to close the sale. If all has gone well, you will meet with your solicitor and the vendor's solicitor, documents are signed and exchanged, and the keys to the property are handed over. For all this, the Law Society recommends that a solicitor charges 1 per cent of the purchase price. But conveyancing solicitors say that the area has become very competitive and, especially with more expensive properties, the cost is a lot less than 1 per cent.
Shop around? Yes, but beware. If your solicitor makes a mistake, it could be a very costly one for you. Cheapest may not always mean best.
With thanks to Jason McGoey of Beauchamps Solicitors