If you are buying a property in Ireland your solicitor will have to “investigate title”.
What does investigation of title mean?
The purchaser’s solicitor must ascertain
- The nature of the title offered for sale
- That he can acquire good marketable title on behalf of the buyer
- The property to be sold is sufficiently identified in the title deeds
- The title being offered is that contracted for on the contract of sale.
Bona Fide Purchaser for Value Without Notice
A bona fide purchaser for value without notice acquires good title and is unaffected by matters of which he had no notice.
However, the purchaser must carry out reasonable enquiries and inspect the property.
The purchaser must physically inspect the property because he buys subject to any defects on title which would have been apparent from inspection, for example a right of way.
Latent defects are not apparent from inspection, but the purchaser is on constructive notice of them, even if he does not have actual notice, as his solicitor needs to carry out reasonable enquiries or inspections.
Section 86 Land and Conveyancing Law Reform Act, 2009 states:
|86.— (1) A purchaser is not affected prejudicially by notice of any fact, instrument, matter or thing unless—|
|[CA 1882, s. 3]|
|(a) it is within the purchaser’s own knowledge or would have come to the purchaser’s knowledge if such inquiries and inspections had been made as ought reasonably to have been made by the purchaser, or|
|(b) in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of the purchaser’s counsel, as such, or solicitor or other agent, as such, or would have come to the knowledge of the solicitor or other agent if such inquiries and inspections had been made as ought reasonably to have been made by the solicitor or agent.|
|(2) Without prejudice to section 57 (4), subsection (1) does not exempt a purchaser from any liability under, or any obligation to perform or observe, any covenant, provision or restriction contained in any instrument under which the purchaser’s title is derived, immediately or mediately; and such liability or obligation may be enforced in the same manner and to the same extent as if this section had not been enacted.|
|(3) A purchaser is not, by reason of anything in this section, affected by notice in any case where the purchaser would not have been so affected if this section had not been enacted.|
Chain of Title
The chain of title is the series of events on a title from the root of title down to the present owner.
Events on Title
Some events on title which may require further investigation include
- Deaths on title-a personal representative may sell, or there may have been a devolving of title to a joint tenant where the property was jointly owned
- Voluntary conveyance-is valid, but may be set aside, for example, the donor is made bankrupt within 2 years of the deed
- Lost deeds in Registry of Deeds cases
Capacity of Vendors
Depending on the capacity of vendor, further investigation may be required and further proofs produced:
- A trustee-the deed of trust will need to be produced showing a power of sale
- A company-the company must still be registered with the Companies Registration Office
- A receiver-he must be validly appointed either by a deed or court order, and there must have been an act of default re the mortgage/charge
- A liquidator
- A life tenant-he has the power of sale but not to receive the proceeds of sale which goes to the trustees
- An attorney-the power of attorney will need to be produced
- A surviving joint tenant
- A beneficiary under a will
- A personal representative
- A mortgagee in possession-some basic checks need to be carried out to ensure the mortgagee properly obtained possession
- The County Registrar
- An unincorporated body