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Property Law Property Purchases and Sales

Problems arising with title to your property-statutory provision to the rescue?

buying irish property from abroad

The Land and Conveyancing Law Reform Act 2009 may come to your rescue if there is a problem with the title to a property.

Recitals

Section 59(1) provides

59.— (1) Recitals, statements and descriptions of facts, matters and parties contained in instruments, statutory provisions or statutory declarations 15 years old at the date of the contract are, unless and except so far as they are proved to be inaccurate, sufficient evidence of the truth of such facts, matters and parties.

Rent of leasehold

Section 59

(2) Where land sold is held under a tenancy (other than a subtenancy), the purchaser shall assume, unless the contrary appears, that the tenancy was duly granted; and, on production of the receipt for the last payment due for rent under the tenancy before the date of the actual completion of the purchase, the purchaser shall assume, unless the contrary appears, that all the covenants and provisions of the tenancy have been duly performed and observed up to the date of actual completion of the purchase.

All estates

Section 76 states

76.— (1) Subject to subsection (2), a conveyance of land passes all the claim, demand, estate, interest, right and title which the grantor has or has power to convey in, to or on the land conveyed or expressed or intended to be conveyed.

(2) This section takes effect subject to the terms of the conveyance.

Receipt clause

Section 77 (1) states

77.— (1) A receipt for consideration in the body of a deed is sufficient discharge for the consideration to the person giving it, without any further receipt being endorsed on the deed.

Implied covenants

Section 80 Land and Conveyancing Law Reform Act 2009 sets out the implied covenants in a conveyance for value. These implied covenants would include

  • The vendor has full right to convey the property
  • The vendor warrants a covenant for quiet enjoyment
  • The vendor warrants the property is free from encumbrances
  • The vendor will execute further assurances to vest the interest contracted, if necessary.

Statutory acknowledgment and undertaking

Section 84 binds the person in possession of documents to produce them for inspection or in court to establish title and to furnish copies on request.

Categories
Personal Injury Claims

Fraudulent and Exaggerated Personal Injury Claims Dismissed by the High Court

Courts appear to be scrutinising personal injury claims more closely in a climate of widespread scepticism about the personal injury culture in Ireland.

Evidence of this can be seen in the High Court decision in an appeal from the Circuit Court in O’Connell -v- Martin; Ali -v- Martin [2019] IEHC 571.

The High Court held that one of these claims was fraudulent and the other one involved exaggerated injuries and dismissed both claims.

The Judge in this case also criticised a solicitor for referring the claimants to a medical consultant when a solicitor ‘has no medical expertise’ and held that the expensive medical reports came into being for legal reasons and to support the claims, not on medical grounds.

Mr Ali’s case was dismissed because he gave misleading evidence-for example that Ms O’Connell was in the car-and Ms O’Connell’s claim was dismissed because the Court did not believe she was actually in the motor vehicle at the time of the gentle, minimal impact between two cars.

Ms O’Connell’s claim had previously been dismissed in the Circuit Court as fraudulent.

The Court noted that expert medical witnesses hold a privileged position in the Irish legal system because they are allowed to give their opinion rather than make factual observations.

Assessment of damages

The Court also looked at what might have been awarded to the claimants if their cases had not been dismissed. Mr Ali had been awarded €17,500 in the Circuit Court but the High Court held a more appropriate sum would have been €3,000.

The High Court also pointed out where the real power lay in cases with an ‘impecunious plaintiff’.

37. This case also illustrates why unmeritorious claims by impecunious plaintiffs are usually settled. It is not because there has been negligence on the part of the defendant, but rather because settling a claim costs less than winning such ‘nuisance claims’, as the legal costs incurred in winning will not be recoverable from the plaintiff. Logic also dictates that the greater the legal costs being threatened, the greater the economic imperative to settle for a defendant. So, in this case, with legal costs so high (say €40,000), compared to the level of the award (€17,500 was awarded to Mr. Ali in the Circuit Court), a likely settlement (of say €7,000) makes economic sense.

38. In many of these unmeritorious cases, where the legal costs dwarf any likely award of damages, a defendant considering settling, is in reality dealing, not with the merits of the case, but rather with the issue of who is going to pay the very significant legal costs. Thus, the real issue for a defendant is:

• whether, in the case of an impecunious plaintiff with an unmeritorious claim, settling makes economic sense in order to avoid the defendant having to pay his own very large legal costs even after winning, or

• whether in the case of a wealthy plaintiff with an unmeritorious claim, settling makes economic sense in order for the defendant to buy off the very small risk of having a very large legal bill (which may dwarf the value of the claim itself).

Two sets of legal costs

The Judge also noted that an impecunious plaintiff can inflict significant costs damage on a defendant in these types of cases.

Plaintiff with fraudulent claim can inflict two sets of irrecoverable costs

40. This case also illustrates that where an impecunious plaintiff such as Ms. O’Connell takes an action which is dismissed by the Circuit Court, it seems, as a fraudulent claim, and thereby inflicts irrecoverable legal costs on a defendant, there appears to be no restriction (e.g. the requirement to provide security for costs) on such a plaintiff from inflicting a second set of irrecoverable legal costs on the defendant in an appellate court. Thus, in this case, the defendant, Dr. Martin (or her insurance company), will likely have to pay her own legal fees for fighting and defeating a fraudulent claim on two occasions. On the other hand, the plaintiff, Ms.O’Connell had a ‘free go’, (in the sense that Ms. O’Connell is unlikely to pay the defendant’s legal costs) not once, but twice, in taking a fraudulent claim, in the hope of receiving damages or a settlement.

Not good practice for solicitors to refer clients to medical consultants

41. Against this backdrop and in order to ensure that Medical Reports are not generated without any medical need, it is this Court’s view that it is not good practice for solicitors to refer clients to medical specialists. The more usual way in which Medical Reports come to be relied upon in court cases, is that a client, if and only if he/she has a medical need, is referred by a person with medical expertise, usually the client’s own GP, who has knowledge of the client’s medical history, to a Consultant. Only after this threshold of ‘medical need’ is passed, would it be usual for there to be a Medical Report which then can be provided to the client’s solicitor for the purposes of litigation.

Principles in assessing general damages

The Judge looked at the guiding principles in assessing general damages:

the following principles derived from decisions of the Court of Appeal and the Supreme Court, which bind the High Court, the Circuit Court and the District Court

  1. Fair to the plaintiff and defendant
  2. Minor injuries/modest damages, middling injuries/moderate damages etc
  3. Award proportionate to other awards and cap on damages
  4. Award to be reasonable in light of general level of after-tax incomes
  5. Appropriate scepticism applied to litigants’ claims
  6. Common sense applied to the parties’ claims
  7. Caution when relying on medical and other expert reports

Conclusion

Ms O’Connell’s claim was dismissed for being fraudulent as her evidence was not accepted as truthful; Mr Ali’s claim was dismissed for giving misleading evidence and for exaggerating the claim.

Even if Mr Ali’s claim was found to be valid he would only have been entitled to €3,000 for general damages which would have been swamped by the costs of pursuing his case in the Circuit Court and then on appeal to the High Court.

Read the full decision in this useful High Court case here.

Categories
Business and Company Law Property Law

Landlords to Be Held Liable for Rates of Tenants?

Landlords and lenders were at risk of being held liable for outstanding rates of tenants pursuant to the Local Government Rates and Other Matters Act 2019.

Section 13 of the act provides:

Payment of rates on sale of relevant property

13. (1) The owner of a relevant property who proposes to sell the property shall, before the completion of the sale, pay to the local authority concerned any rates imposed under this Act and accrued interest which is due and payable in respect of that property.

(2) The local authority concerned shall provide a person referred to in subsection (1) or a person acting on behalf of the person in connection with a sale of a relevant property with—

(a) confirmation of any unpaid rates imposed under this Act and accrued interest at the date of the sale of a relevant property, or

(b) confirmation that there are no outstanding amounts payable,

as the case may be, in such form and manner as may be prescribed.

(3) In this section—

“sale” includes, in relation to a relevant property, the transfer of the property by its owner or any trustee or personal representative of the owner to another person—

(a) in consequence of—

(i) the exercise of a power under any enactment to compulsorily acquire land, or

(ii) the giving of notice of intention to exercise such power,

or

(b) for no consideration or consideration which is significantly less than the market value of the property at the time of its transfer.

It is likely that this provision also obliges a receiver or mortgagee in possession to pay the outstanding rates on or before a sale.

Section 14 of the act provides that interest can be charged on unpaid rates:

Unpaid rates to be a charge on relevant property

14. (1) Any rates levied by a rating authority in respect of a relevant property payable under this Act and any interest referred to in section 12 which is due and unpaid by the owner of the relevant property shall be and remain a charge on the relevant property to which it relates.

(2) Notwithstanding section 36 of the Statute of Limitations 1957, the charge referred to in subsection (1) shall continue to apply without a time limit until such time as it is paid in full.

(3) This section does not affect—

(a) the liability of any previous occupier for outstanding rates in respect of which he or she is primarily liable, or

(b) the functions of the rating authority concerned under any other enactment to collect any outstanding rates from the occupier or occupiers primarily liable.

Section 7 of the Local Government Rates and other Matters Act 2019 provides for set off of rates against any money owing by the local authority against any money due to the local authority.

Discharge of rates by set-off

7. Where a sum is due to any person by a local authority and, at the same time, a sum is due to such local authority by such person in respect of rates the former sum may be set off against the latter either, as may be appropriate, in whole or in part.

Section 12 provides for interest to be charged on overdue rates.

Conclusion

Landlords and lenders would be held liable for rates of tenants if all of this act commenced without amendment. There was significant lobbying, however, with the result the the act will be amended before coming into effect. The Minister for Housing, Planning and Local Government has recognised that if it came into law without amendment there may well be significant unforeseen and unintended consequences.

The most likely change is to ensure that landlords and banks are not liable for outstanding rates of tenants, but this remains to be seen. Watch this space.

Categories
Property Law

Email Signature Sufficient for Binding Property Contract

A contract for the sale of land in Ireland must be evidenced in writing. The situation is similar in the UK where a contract for the sale of land must be signed by, or on behalf of both parties.

An interesting decision has been handed down by the County Court in Manchester where a dispute arose concerning the sale of a piece of land near Lake Windermere.

The proposed purchase of the land saw email correspondence being exchanged between the solicitors for buyer and seller. 

The price of £175,000 was proposed by email by the solicitor for the vendor and this was accepted by the purchaser’s solicitor, by email. Subsequently the vendors decided they wanted £200,000 for the property and their solicitor stated there was no enforceable contract to sell for £175,000 as the terms were not signed by, or on behalf of, both parties.

Manchester Crown Court had to decide whether the email signature block was sufficient to be accepted as a signature by the solicitor for the buyers and decided that the intention with the signature block in the email was to connect the name to the email and bind the contract between the parties.

Accordingly the Court found there was an enforceable contract and the email signature was sufficient to form a contract.

Categories
Consumer Rights Defamation

Defamatory or Illegal Content on Social Media Sites Can Be Removed Worldwide-ECJ Decision in Facebook Ireland Case

Do you think the social media sites do enough when it comes to the offensive material that is published on their platforms?

Do Facebook and Twitter, for example, act swiftly (or at all) to remove the hate speech and racist stuff that is on full view courtesy of various keyboard warriors hiding behind fake names and flags?

The Court of Justice of the European Union has just handed down an interesting decision in a case taken against Facebook Ireland. The case I am referring to is Eva Glawischnig-Piesczek v Facebook Ireland Limited Case C-18/18, Court of Justice of the European Union, with a decision delivered on 3 October 2019.

What the ECJ decided

The European Court of Justice has held that Facebook can be ordered by EU national courts to remove or block access to defamatory material-defamatory, that is, in the eyes of the national court of the EU member state.

There is a further significant outcome to this decision: a national court’s decision that material should be removed means it can be ordered to be removed in another country even if, in that other country, the material is not defamatory or illegal.

Eva Glawischnig-Piesczek v Facebook Ireland

Ms Glawsicnig-Piesczek is an Austrian politician who requested Facebook remove certain comments about her made by a user on Facebook. The Supreme Court in Austria referred the case to the European Court of Justice as it held the comments to be illegal and defamatory.

The consequences of the EU Court decision

  • Social media platforms can be ordered to remove or block access to identical information declared unlawful
  • They can be ordered to remove equivalent information deemed unlawful or defamatory
  • The decision applies on a worldwide basis-that is to say if it is deemed unlawful in Austria, for example, the comments cannot be published on Facebook UK or Facebook Ireland.

As a consequence of this decision the Supreme Court in Austria now has the power to decide on where and how the material is to be removed. This remains to be seen but the Austrian Supreme Court now has the authority to order Facebook to remove the comments on every Facebook platform worldwide and this was one of the questions referred by the Supreme Court in Austria.

Conclusion

This is good news for the user of the platform and gives an individual more power to ensure illegal or unlawful comments are not published anywhere and there is no getting around the order of a national court to remove illegal comments.

This is a significant increase in the power of the user of social media platforms and places far greater obligations on the social media companies such as Twitter, Facebook, Instagram, YouTube, etc.

You can read the entire judgment in Eva Glawischnig-Piesczek v Facebook Ireland Limited here.

Read the press release of the Court of Justice of the European Union the 3rd October 2019.