Requisitions on title are usually undertaken by use of the standard Law Society form with case-specific additions. The investigation of title in the sense of title as ownership is set out in a separate chapter. This chapter concerns many ancillary matters which are highly relevant to property ownership which is not objections or requisitions in the sense of the investigation of ownership.
Many of the general principles on objections to requisitions apply to these matters even though they do not relate to the matter of ownership itself. Accordingly, in certain cases, the seller may be able to rescind the contract or may be obliged to rescind it if the buyer makes objections in requirements with which he cannot comply other than with undue expense or delay.
Many of the matters in the standard requisitions are now commonly raised prior to contract. The extent to which it is possible to terminate a contract on account of such adverse matters is in some cases unclear. Even if it is possible to terminate the contract by reason of an unsatisfactory reply, the procedure is cumbersome and may be subject to dispute. It is accordingly generally better to raise such issues prior to the contract. If the buyer is dissatisfied he will simply not enter a contract and will not proceed.
The Law Society’s standard form contains a significant number of queries which are relevant only to particular types of transactions. These should be deleted when the form is sent from buyer to seller. The buyer’s solicitor should add requisitions and requirements particular to the transaction to the standard form. The last requisition conventionally lists the completion of documents completely or to the extent that they have not been previously listed.
Most Requisitions Pre-Contract Since 2019
The Law Society recommended a change in conveyancing practice in relation to precontract enquiries, to apply from 1 January 2019. The form of requisitions on title with replies, the subject of later chapters is to be furnished prior to the contract.
Certain precontract information under pre-2019 practice is incorporated in the form of requisitions on title with replies to be issued prior to the contract by the seller. They cover
- contents included in the purchase price and fixtures and fittings;
- services taken in charge by the local authority;
- the position as regards sewerage and water;
- the position as regards rates, including commercial rates governed by the Local Government Reform Act 2014, and other periodic charges;
- Building Energy Rating (BER) Certificate
- Local Property Tax, Household Charge and NPPR,
The Law Society Pre-Contract Questionnaire for Property Sale may be used by the seller’ssolicitor to take instructions in relation to replies
The buyer’s solicitor must consider the adequacy of the replies to precontract enquiries. Commonly further follow-up more probing questions, will be answered if the response is insufficiently precise or as unsatisfactory.
Post Contract Requisitions
The Buyer may, after the Date of Sale, but within five Working Days of becoming aware of the matter, send to the Seller’s solicitor Requisitions on a matter of title which prior to the Date of Sale was not apparent from:
- the contract or the documents and information provided to the buyer under it or
- an inspection of the property, or
- an inspection of the Planning Register or
- the searches (if any) furnished to the buyer
- or was not otherwise known to the buyer prior to the Date of Sale.
Any Requisitions not sent within the time limit above are be deemed to have been waived. The seller’s written replies to Requisitions shall be sent as soon as practicable. The periods specified for the Buyer to raise Requisitions or Rejoinders, are strict.
The buyer may raise Rejoinders to the seller’s replies to Requisitions within five Working Days of delivery of replies. The seller’s written replies to such Rejoinders shall be sent as soon as practicable after delivery of such rejoinders and so on, where there are subsequent rejoinders and replies.
If not so answered, the replies to such Requisitions or Rejoinders shall be considered to have been accepted by the Buyer as satisfactory. Any Rejoinders not sent within the above time are deemed to have been waived.
If the buyer shall make and insist on any Requisitions or Rejoinders raised which the seller shall, on the grounds of unreasonable delay or expense or other reasonable ground, be unable or unwilling to remove or comply with, the Seller, acting reasonably, shall be at liberty to terminate the sale (notwithstanding any intermediate negotiation or litigation or attempts to remove or comply with the same) by giving to the buyer or his solicitor not less than five Working Days’ notice.
In that case, unless within the notice period either the Requisitions or Rejoinders shall have been withdrawn the Sale shall be rescinded at the expiration of such notice.
Where the subject matter of the Requisitions or Rejoinders constitutes an “error” within the meaning of the General Conditions and the buyer shall have notified the Seller in writing of a claim for compensation in respect of such error, the e Requisitions or Rejoinders are deemed to be withdrawn but without affecting the buyer’s claim for compensation.
The first requisition in the standard form raises questions in relation to the property and titles included in it. It requests information on boundaries, disputes, and certain related questions. Under the Law Society standard conditions the seller is not obliged to define exact boundaries, ditches, and walls or to specify their nature.
Actual disputes affecting boundaries or the property must be disclosed. Questions may arise as to whether a dispute has actually arisen. It will be clear where for example legal of proceedings have or are threatened. There may be a dispute in many circumstances where this has not occurred.
Easements and Services
The second requisition deals with utilities and the supply of services to and from the property. In some cases, the property may connect directly to service lines maintained by the appropriate utility company or local authority. In other cases, there may be a connection to a supplier’s infrastructure through a third party’s land.
It should be shown that there are rights of access for services to their ultimate terminus/disposal point or connection with a public supply. There should be rights for maintenance and access where the authority or utility company does not have the responsibility and ability to maintain the connections and infrastructure.
The third requisition relates to easements and rights which either affect the property or benefit the property. Those affecting the property must be disclosed by the seller under the terms of the contract to the extent that they are known to the sellers and are likely to affect it. The question goes further.
Easements may relate to matters such as pipelines etc for services roadway access for persons and vehicles and other such facilities. The property may be subject to or enjoy other inessential easements. They will not be necessarily apparent from inspection of the property or from the title documents.
The property may be subject to an easement or may require easements over the third-party property. Where physical access or access for services is required, the matter should be disclosed and explained.
The fourth requisition refers to services and facilities used in common with neighbours. This typically refers to private roads, septic tanks, treatment facilities, water supply sources, and infrastructure. The seller is obliged to disclose the rights and obligations in relation to the arrangement. Agreements etc. must be furnished.
The fifth, sixth and seventh requisitions relate to matters which arise primarily in a very small number of agricultural cases only. The Forestry Act provides for obligations in relation to replanting trees in some instance. See the separate chapter on the forestry legislation. Any such obligations must be disclosed.
Fishing and sporting rights may exist by long use or otherwise at common law. Many such rights are registered on the title to properties purchased through the Land Commission. In many cases, it is patent that no such rights have ever been exercised.
Leases and Tenancies
The ninth, tenth and eleventh requisitions deal with the issue of possession. The contract must state whether the property is being sold with vacant possession or is subject to a lease or tenancy. In the latter case, the property is effectively an investment and the terms of the tenancy or lease are of critical importance to its nature.
Vacant possession must be given by the seller on completion unless the standard contract is amended to provide otherwise The standard contract also requires removal of material not included in the sale as well as rubbish and debris.
Where the property has tenanted the terms of the tenancy are absolutely critical. This involves consideration, both of the terms of the existing oral and written leases and also statutory rights that may apply. Their impact and implications for the landlord are critical to defining the nature of what is purchased.
Most enquiries regarding the terms and conditions of leases should be made prior to contract as it may not be possible to raise a valid objection on the basis that some aspect of the lease arrangement if not to the buyer’s expectation or satisfaction.
Requisition 11 relates to outgoings. In the case of commercial properties, there is usually liability to commercial rates. Residential properties are subject to local property tax. This was preceded by the non-private residence tax charge and the household charge. Each of these taxes may affect successors unless proved to be paid in full.
In addition, charges may apply for a range of services. Local authorities or contractors charge for refuse collection. Formerly water charges were payable. The Water Services Act 2007 to 2009 provided for the reinstitution of water charges which were ultimately retrospectively abolished.
Where there are income and/or outgoings of the property, an apportionment account will be required. The buyer or seller will need to make a net payment or allowance to the other to reflect either prepayments or accruals in respect of such charges. Typically the seller will have incurred the obligation to pay the relevant liability for a whole calendar or lesser period. Therefore the buyer will be expected to make a payment for the benefit of the unexpired part of the period apportioned on a daily basis.
Public Body Requirements
The 1twelveh acquisition deals with notices and obligations arising from the exercise of third party powers, usually public bodies. A range of local authorities and other public authorities have powers to make requirements affecting the property. These typically arise in the public interest and are commonly based on the state and condition of the property.
The standard Law Society conditions of sale require the seller to disclose any such notices arising before or after the contract is entered prior to completion. See other chapters in relation to the range of such notices.
On one end of the spectrum, they may relate to enforcement for actual breaches of legislation. For example, there may be breaches of planning or building control legislation. Clearly, these are matters of relevance to a buyer as the property may be prohibited from use or subject to penalties for breach.
An intermediate position is where governmental authorities have powers to exercise powers and issue notices affecting the property at their discretion by reason of some public interest. This may include notices under the Derelict Sites Legislation, Dangerous Buildings Legislation and Fire Safety Legislation.
Properties may be required to be upgraded for public health interests. At the most, basic level properties may be required to connect to water and sanitary services facilities in the area. Properties may be overcrowded and subject to obligations under housing acts.
Particular types of property may be subject to special legislation. Commercial property will be subject to the health, safety and welfare legislation. Property in which an environmental impacting activity is undertaken is subject to environmental waste, water pollution, air pollution, clean up etc. legislation.
The thirteenth requisition requires information relevant to searches. It asks whether the seller has ever used a name other than his own. It also requests existing searches that are held in order to avoid duplication. This will be appropriate in Registry of Deeds cases, in particular where older negative searches may be held. This avoids duplication and additional costs.
It may be desirable for the buyer to undertake his own searches so that the law searches owe him a duty of care. There may be a question as to whether privately undertaken searches owe obligations to future owners on the principles of negligence.
Encumbrances and Charges
The fourteenth requisition raises queries regarding encumbrances, charges, and proceedings affecting the property. Commonly the property will be the subject of an existing mortgage or charge by which the seller has financed the acquisition of the property. This will be required to be discharged from the proceeds of the sale.
The contract will regulate the procedure for discharging the charge. In the absence of a special condition, the buyer can require that the charge is released prior to completion, which would usually be logistically difficult if it is to be redeemed from the purchase price.
An issue which has arisen prior to the economic crisis is the failure by some seller solicitors to comply with terms of the undertaking to redeem the charge form the proceeds and to furnish a formal executed release (or procure electronic release).
It should be proved at a minimum that the underlying loan accounts are less than the purchase price and that the mortgage holder has agreed to discharge the charge for a sum less than the price. The purchase money was formerly split by way of two bank drafts, This is more impractical in the context of the more modern practice of direct bank transfers.
The requisitions also deal with issues such as judgment mortgages and charges for monies which may affect the property. Under a range of legislation, local authorities may enter the property, do works, and charge the cost which if unpaid, is a charge on the property. This may arise for example when the notices mentioned above have not been complied with.
Formerly the Housing Acts provided for a wide range of housing construction and improvement grants. Many such grants were granted were subject to conditions which might involve repayment in the event of a sale. Housing grants are no longer widely available and are not now commonly encountered.
The requisition requests details of any litigation and disputes affecting the property. This may refer to actual or threatened claims.
The buyer of property generally takes the property subject to the rights of all persons in actual possession of the property or in actual receipt of the rents. This makes it essential that the property itself is examined. Anything which suggests that a person other the seller may be in occupation should be investigated. It must be shown that the seller is in a position to procure vacant possession or to discharge any alleged interest which such person may have.
Many such interests will be equitable interests. Accordingly, the principle that the buyer may be affected by such interests which he would have discovered on proper investigation applies. It applies in modified form in the case of Land registry title and a sale by two trustees under a trust of land.
This puts an onus on the buyer and his solicitor to undertake the usual and proper investigations. Generally, a bona fide buyer of the property will not be adversely affected by such equitable interests where his investigations are proper and nonetheless do not disclose the interest concerned.
However, this is contingent on him making reasonable inquiries. Where something unusual is discovered that ought to be followed up, this should be done. The courts balance the rights of the equitable interest owners against the interests of buyers. Where the former’s interests are not discoverable on due diligence then they effectively are subordinated to the buyer’s interests and attach to the proceeds of sale/the seller.
Bankruptcy / Undervalue
The fifteenth requisition deals with voluntary dispositions and bankruptcies. Certain transfers made within three years (are in some cases five years) before bankruptcy may be set aside. The provision applies to gifts and transfers at undervalue. The longer period applies to transfers to connected persons. They are vulnerable to set aside in the transferor’s late bankruptcy within the relevant period unless it is shown that the seller was able to pay all his debts without the recourse of the property concerned at the relevant time.
In addition, a conveyance made at any time with the intention to delay, hinder or defraud creditors may be satisfied without time limit.
The requisition request matters of relevance to these issues. In particular, a bankruptcy search should be obtained against any such prior transferor together with a declaration and other appropriate evidence of solvency.
The sixteenth requisition deals with various taxation issues. Formerly, unpaid estate duty, gift tax and inheritance on the passing of title affected property as a charge. Since 2010 these taxes are no longer charges on properties. Prior to that, it was necessary to obtain proof of discharge of such taxes so that they were not charged on the property or did not affect it.
Certain other taxes also affected property, but they no longer apply. The former residential property tax required a clearance certificate. Probate tax which is a variation of inheritance tax itself required a clearance certificate. They are no longer operative.
Where property is sold for over a specified figure (€500,000 and €1,000,000 for houses and apartments) it is necessary to obtain a capital gains tax clearance certificate. Otherwise, the buyer must notify the Revenue and pay 15% of the price to the revenue. This gives the seller a strong incentive to obtain the relevant certificate. The certificate is generally available, provided the seller is resident.
Stamp duty arises for the buyer. The stamp duty return requires the seller’s tax number and tax type. This is requested under this requisition.
The recent property taxes are each effectively charges on property in that the buyer is bound to ensure the liability is discharged. See the separate sections on them. There is a positive obligation imposed on buyers and sellers to ensure the tax is paid and the clearance certificates are obtained.
Value added tax is potentially chargeable on the sale and letting of properties. There is a detailed requisition- 16A dealing with various scenarios under which the tax may be chargeable. It does not generally apply to domestic property.
Value added tax generally applies to a sale where the property has been developed within the previous 20 years and is passed through owners s who have each been entitled to reclaim VAT. The must have been using the property for vatable business use. This may include the letting of the property.
See separately the sections on VAT on a property which deals with the circumstances in which VAT may arise on the sale of a property.
Where VAT arise, the question of liability arises. If the VAT charging clause remains in the contract then the buyer must pay VAT over and above the purchase price. This will add the percentage of typically 13.5% to the purchase price. If the buyer for some reason cannot recover VAT then this will be a critical problem and should be ascertained prior to sale.
References and Sources
Law society of Ireland: Conveyancing 9th Ed Brennan et al.
Investigating Unregistered Title- Magee 2012
Irish Conveyancing Law- Wylie & Woods 4th Ed 2019
Irish Conveyancing Precedents- Laffoy
Irish Conveyancing Statutes – Wylie 2020 6th Edition:
eConveyancing and Title Registration quantity
Complex Conveyancing Law Society PPG Hession 2nd Edition
Registration of Deeds and Title in Ireland – Deeney 2014
Conveyaning Handbook 28th Ed. Silverman et. al (annual)
A Guide to Conveyancing Residential Property by Alan Stewart
A Practical Approach to Conveyancing (22nd ED) Robert Abbey and Mark Richards
A Practical Approach to Commercial Conveyancing and Property 5th Ed Robert Abbey
Public Sector Materials; Statutes and Cases in italics are reproduced as public sector material. See the Legal Materials link in the footer.