Election Topics

Election Topic: The Special Criminal Court

How to register for a Vote in General Election 2016

Family Law

FAMILY LAW Children and the courts

Family courts

Caitriona Murphy: Why farm couples should take a lesson from Kim and Kanye

Property

Buying a house

Selling a house

Law for Landlords and Tenants

Buying Commercial Property

Insurance Fraud

Insurance Fraud

Election Topic: The Special Criminal Court

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Special Criminal Courts relate to criminal trials only. They are established where the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order.

The present Special Criminal Court was established in 1972 and comprises three judges of the ordinary courts - usually one High Court judge, one Circuit Court Judge and District Court Judge. There is no jury in the Special Criminal Court.

The Special Criminal Court has no civil jurisdiction. Criminal cases are transferred from the ordinary criminal courts to the Special Criminal Court if:

  • The offence in question is a scheduled offence. Cases involving a scheduled offence generally involve subversive crime and are automatically transferred to the Special Criminal Court. The current list of scheduled offences includes:
    • -offences under Part 7 of the Criminal Justice Act 2006 (excluding conspiracy)
    • -offences under the Explosive Substances Act 1883
    • -offences under the Firearms Acts 1925 to 2006
    • -offences under the Offences against the State Acts 1939 to 199
  • The offence in question is not a "scheduled offence" but the Director of Public Prosecutions issues a certificate stating that in his/her opinion, the ordinary courts are inadequate to secure the administration of justice and the preservation of public peace and order. Once such a certificate is issued, the case must be transferred from the ordinary court to the Special Criminal Court.

An appeal against conviction or sentence by a Special Criminal Court may be taken to the Court of Appeal

How to register for a Vote in General Election 2016

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The easiest way to find out if you're already registered is to simply visit www.CheckTheRegister.ie - but it's important to remember that even if you ARE actually registered to vote, you might not appear on the site.

This is because many of the online databases behind CheckTheRegister are only updated once per year – when the annual register is published on February 15th.

This means if you changed your details on the register since last year – including the 70,000-or-so people who registered for the first time in the run-up to the Marriage Referendum last May – you probably won’t appear on the CheckTheRegister website, but you should still actually be registered.

Getting registered to vote

If you know you’re not registered – or if your details are old and need updating – it’s now time to get your arrangements made now so that you’re registered to vote when the election arrives.

  • If you’re not already on the register you’ll have to register with your local county/city council before Tuesday 9th February. You’ll need to get form RFA2 – download it, print it, fill it out, bring it to a Garda station to have it witnessed, and send it to your council before the deadline.
  • If you’re on the register but need to change your personal details (if you’ve moved house, or have changed your name) ytou should get form RFA3 – again: download it, print it, fill it out, bring it to a Garda station to have it witnessed, and send it to your council before February 9th. If you’ve moved to a new constituency you should send this form to your new county/city council – they’ll contact your old one and get your old details removed.

Postal votes

If you’re hoping for a postal vote, you should first bear in mind that there’s only limited circumstances in which you’re allowed to have one. Postal votes are usually only available if you’re in the Gardaí or Defence Forces, if you’re in prison, if you’re a diplomat based abroad (or married to one).

However, they’re also available if you can prove you’ll be away from home for work on the day of polling, or if you’re a full-time student at an educational institution away from home (i.e. you’re in university, college or boarding school), you’re still allowed a vote.

But that’s where time is of the essence – if you need a postal vote, you have to register for it with your county/city council within two days of the election being called. Given the election will be called tomorrow, this means you only have until Friday to arrange a postal vote.

If you plan on using a postal vote you’ll need to have a signed letter from your employer (or a stamped form from your college/school),and a completed application form, sent back within just two days of the election being called.

More details on this are available from the website of your local county/city council - or, again, by calling them up and asking to speak to the Franchise Section.

FAMILY LAW Children and the courts

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Brid Manifold

For any couple who has spent the day waiting around their local District Court for their case to come up, you needn’t tell them what a stressful time it is. On a typical day in the family District Court, the judge will have a long list of diverse cases ranging from enforcement orders against parents who are defaulting on maintenance payments and barring and safety order applications to applications for guardianship, for passports and permission to travel and for maintenance. He or she will often also have to deal with two or more of these applications, made on behalf of one parent.

The judge is required to not only to get through this list, but to assess the validity of all of the applications and to make orders there and then on the day. Many of these orders have serious consequences for the parents involved. In the case of enforcement for failure to pay maintenance, for example, a judge may send the non-paying parent to prison.

Spare a thought too for the children sitting at home. The consequences of decisions such as reducing access, or in more serious cases, ordering supervised-only access, will impact on these children’s lives for many years and often right into and through their adult lives. The court may need a report to be produced with recommendations on contact arrangements. However, with declining budgets, the HSE is less able to provide reporting services, and the cost of private reports can be prohibitive. It is unreasonable to expect judges to make such significant decisions in circumstances of such limited time and facilities.

Despite the increasing pressure coming on the Irish family courts to recognise the enhanced rights granted to children under international Charters and Treaties, our legal process has long been in need of reform. Most recently, the EU Charter of Fundamental Rights, which came into force as part of the Lisbon Treaty, requires that the best interests of the child is a primary consideration in all actions concerning children, and that children’s views are taken into account in matters that concern them, in accordance with their age and maturity. Irish judges differ in their views on meeting directly with children, with most taking the view that the trauma of attending a family law court would greatly outweigh any potential benefit to the child. And of course they are right, as children’s concerns can only be properly addressed in a carefully managed environment, such as a dedicated family law centre where families can access proper information and a range of services from mediators, counsellors, child psychologists, lawyers and ultimately judges.

We can look further afield, across the water and in particular to Australia and New Zealand where alternative dispute resolution models have long been in place for family law cases, with attendance at mediation information meetings being mandatory in these countries now for family law applicants.

I believe that the time has come for a total modernising of our family-law system, in particular for guardianship access and custody cases, where shared parenting arrangements can be examined by a multidisciplinary team of dedicated qualified professionals, such as child psychologists and family mediators.

Such a system would centralise the voice of the child, to ensure that all children get the benefit of a thorough consideration of their family circumstances and where solutions and arrangements that fit their particular family can be put in place and monitored appropriately.

Family courts

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THE COURTS BILL 2013, as published on the 19 March 2013, proposes allowing bona fide representatives of the press access to family courts. Up until now, family proceedings have been, almost without exception, heard ‘in camera’, ie in private with no access allowed to the public, media or law reporters. So why are these changes being proposed?

In a nutshell, the quest for greater transparency is behind this Bill. For years, many have debated the need for transparency in family law and child care proceedings versus the need for privacy for persons involved in such proceedings. There has, in effect, been a veil of secrecy surrounding family proceedings. Removing this veil will mean that decisions of the courts will be open to scrutiny; it will provide a safeguard for fair practice; it will lead to more consistent judicial decisions nationally; and will allow the public, judiciary and legal professionals to know the way the courts are dealing with family law issues.

Media access to family courts:

Media access is proposed to be permitted to court hearings dealing with family law and childcare proceedings, such as divorce, separation, domestic violence, maintenance, custody, access and proceedings where the State intervenes to take a child into care.

However, the media can be prevented from attending hearings. The court will be empowered to both exclude representatives of the press for all or part of the hearing and to impose publishing and/or reporting restrictions when it is necessary to preserve the anonymity of a party to the proceedings, including any child to whom the proceedings relate and/or witnesses at the hearing, such as social workers, expert witnesses; if the nature or circumstances of the case require it; or it is necessary in the interests of justice.

In considering any such exclusion, the court will be required to balance the promotion of public confidence in the administration of justice against a number of factors, including the best interests of the child and whether the information given in evidence is sensitive personal information or commercially sensitive information.

Exclusion of the media may be ordered by the court of its own motion or on application of any party directly involved in the proceedings. Many will question what these proposed changes mean for them.

You may be able to prevent press attendance:

If you are involved in, or about to enter into, family proceedings that are likely to proceed to court, representatives of the press may be allowed to attend during the hearing. The press may report generally on your case, although the information published or broadcast should not be of a kind likely to lead members of the public to identify you, the other party to your proceedings, any child to whom the proceedings relate or any witnesses at the hearing of said proceedings.

It will be an offence to infringe theses stipulations, an offence punishable by way of fines and/or imprisonment. However, depending on the circumstances of your case, you may be able to prevent press attendance.

More transparency means more confidence in the system:

The Law Society has welcomed the proposed changes and I would have to agree. Greater transparency should assist in the promotion of public confidence in the family court system. I suspect, however, that the initial effect of the proposed changes will be that more family law proceedings will culminate in early settlement, driven by the desire of either or both of the parties to such proceedings to avoid airing confidential and intimate details of their personal relationship and their family life in the presence of representatives of the press.

In time, this may change. After all, these proposed changes are akin to changes introduced in the UK in 2009 allowing accredited members of the media to attend certain hearings in the family courts. There was a flurry of publicity surrounding those changes in the UK at the time, with many arguing that the privacy of family law hearings would be lost. Indeed, these concerns have been voiced here too. However, from the UK perspective, in reality it seems that the changes have had little or no impact, with the majority of family law cases taking place in the absence of media attendance

Caitriona Murphy: Why farm couples should take a lesson from Kim and Kanye

AN exit strategy, an insurance policy, a disaster strategy – call it what you like – a pre-nuptial agreement is the outline of what you want to happen to your assets in the event of a marriage breakdown.

The news this week that Justice Minister Alan Shatter intends to include pre-nuptial agreements in the upcoming legal review has revived the controversy that surrounds divorce in deepest rural Ireland, where the mere thought of a divorce lawyer walking to the family farm is enough to bring on palpitations.

The notion that a woman who marries a farmer walks up the aisle with a bunch of flowers and walks down again with half the farm in the pocket of her silk dress is one that has terrified Ireland's farmers ever since divorce was legalised in 1996. Ensconced in their Bel Air mansion,Kim Kardashian and Kanye West may, at first glance, have little in common with Seamus Murphy and Maire Ryan in Ballysearrach, Co Kerry. But the couples could be singing from the same hymn sheet when it comes to pre-nups – everyone want to protect their assets in the event of marriage breakdown.

Kim and Kanye have already agreed to keep their assets separate by drawing up a prenup before they tie the knot. They're commited to their marriage, but they are shrewd business people who know that it's best to have a prenuptial agreement, given their vast wealth. The scale is wildly different – $130m (€96m) in the case of Kim and Kanye and a 130-acre farm in the case of Seamus and Maire – but the division of those assets is no less contentious.

The Irish Farmers' Association (IFA) has revived its campaign to get farm assets ringfenced and protected in the event of a marriage breakdown, thereby preventing a family farm from being broken up in the divorce process. The IFA campaign to have pre-nups recognised by law began almost three years ago. The organisation claims that the fear of losing farms that have been in families for hundreds of years is preventing the timely transfer of land to the younger generation.

"IFA's interest in the issue of the legal status of pre-nuptial agreements arises primarily from our policy of seeking to ensure that the inter-generational transfer of family farms takes place in an orderly and timely fashion," said IFA farm business chairman Tom Doyle. "Our own analysis shows clearly that farmers are concerned at the potential implications of transferring the farm, which may have to be broken up subsequently in the event of a marriage breakdown." Mr Doyle added that legally binding pre-nuptial agreements "could go a long way towards allaying these fears, while also protecting the rights of both parties".

The age structure of the agriculture sector is top heavy with older farmers. In fact, just 6pc of all farmers in Ireland are aged under 35 today – compared to 26pc in the 1970s. One of the big blockades to farm transfers from the older generation to the next is the fear of losing the farm. Earlier this year, a Macra na Feirme survey found that 65pc of farmers aged over 50 who have not yet identified their successor said it was important for them that their farm stayed in family ownership. In fact, 23pc insisted that it was important that the farm stayed in their own family name, indicating that they were even reluctant to transfer land to their married daughters who no longer had the family name.

This vice-like grip on the land is behind hundreds of doom-laden warning tales about the farmer who married "a girl from the town" and subsequently lost part of the land that had been in the family for generations. The same emotional attachment has seen public auctions of land disrupted by angry family members and is the cause of bitter disputes among families when romance turns sour. Of course, it's not all about the gra for the land – the land is also a business asset and the means of generating an income. At an average land price of €10,200 per acre, a farm of 100 acres has an asset value of more than €1m.

In the midst of a bitter divorce, that is plenty to fight over. However, the IFA insists that the asset value of a farm should be ringfenced because – unless that farm is kept intact – its income-generating potential is destroyed. The association has a point. A dairy farmer running 90 cows on a 120-acre farm has no hope of maintaining the same income on a smaller block of land, while a suckler producer is already to the pin of his collar to produce an annual income of €12,000 on an 80-acre farm (Teagasc National Farm Survey 2012). Divorce on a farm also throws up other problems that simply wouldn't occur in other businesses. A typical Irish farm has the family home built at the centre of the farm and embedded in the farmyard.

In cases involving children, the mother is often awarded the home to rear the family in their familiar environment. This can result in the farmer renting a house away from the farm, several miles from cows calving and sheep lambing.

It's the equivalent of a dentist's wife being awarded the dentist's chair at the centre of his practice. If Mr Shatter's legal review gives pre-nups a legal basis in court, farmers could become their earliest adopters in an effort to protect their assets. In fact, some forward-thinking farmers have already drawn up pre-nups in recent years in the hope that the documents would eventually become legally binding.

Family law solicitor Anne O'Neill welcomed the prospect of pre-nups for farmers. "I would be very enthusiastic about any change that treats adults in an adult fashion and given the importance of agriculture in Ireland's economy – it isn't good for either farmers or our country to have farms divided in such a way that would render them unviable," said Ms O'Neill. However, the introduction of legally binding pre-nups is likely to open up a huge can of worms for young farmers.

Will prospective romances with farmers die a sudden death the minute a pre-nup is mentioned? When should a young farmer mention that he wants a pre-nup – during the first fumble in a nightclub or in a glitzy restaurant as the waiter serves champagne with a diamond ring at the bottom? Perhaps it should be included in the small print of the terms and conditions for Macra na Feirme or included as a waiver on Facebook's Farming Banter page.

While the advent of legally recognised pre-nups will be welcomed by farmers, the likelihood is that some of the biggest benefactors from the move could be the legal professionals who will be called in to sort out the mess afterwards. "The biggest pitfall for farmers who want to implement a pre-nup would be that they take a 'do it yourself' approach," warned O'Neill. "Both the landowner and the person marrying into the farm need to take proper independent legal advice from a solicitor familiar with family law well ahead of the marriage date."

The Cork-based legal expert warned that any pre-nup that did not involve full and frank disclosure of all assets could be dismissed in future divorce proceedings. "Any suggestion that the wife was 'hoodwinked' or the pre-nup was not done by the book and it could be set aside by a judge," she warned.

Buying a house

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1. CHOOSE A PROPERTY

This may seem obvious but the first thing that must be done is to actually choose the property that you wish to buy. There are few questions that you should ask about the property such as 'Is it for sale?' If it is not for sale there is no point in trying to buy it. Secondly is it within your price range? We would all like to live in a three- story house with eight bedrooms but we have to be realistic and know what we can afford or what our bank manager/lending institution will be willing to lend us. Thirdly is the house a good investment? You must look at things such as the area that the house is situated; it's proximity to major towns/cities, is it near a motorway or is it in the line of a planned motorway.

2. HOW IS IT BEING SOLD? AUCTIONEERS

Although most property is bought and sold privately in today's climate, property is also sold by way of public auction. Approaching an auction can be a daunting task for a proposed purchaser. In this situation it is normal for you to instruct a solicitor to make the necessary precautionary enquiries. He will also attend the auction with you. It is also essential to have the property surveyed before the auction. Also before the auction the title will have to be investigated (see Step 4) and the financial arrangements will have to be in pace before the auction begins. When the auctioneer says 'SOLD' you are committed to the purchase if your bid has been successful. This means that you have to pay a deposit immediately and the balance is then due within the month.

3. WHAT KIND OF TITLE IS IT?

'Title' in relation to property means not only the documents that show that it is you that owns the property but also it guarantees that no one else can come along and say that they own the property. There are two types of title in Ireland known as Land Registry title (Registered) and Registry of Deeds title (Unregistered).

The owner of property that is registered in the Land Registry will have a numbered folio. This document records the name and address of the owner, a description of the property and a map of the property known as the file plan. A folio is conclusive evidence of the person's ownership of the property. When Land Registry property is being sold the folio must be produced in order to sell.

Registry of Deeds title is that which is registered with the Registry of Deeds. This occurs where the title has built up over a number of years. These documents would include Deeds of Conveyance used to transfer freehold-unregistered land or Deeds of Assignment used to transfer leasehold unregistered land.

On completion of a sale of unregistered property the purchase deed is lodged with the registry of deeds where the details of the registration and the time of the registration are noted on the Deed. The main reason for registering a deed in the Registry of deeds is that the time of Registration governs conflicts between two different deeds, e.g. if two mortgages on the one property are lodged on the one day the one that is registered first will have priority.

4. FREEHOLD/LEASEHOLD.

In general in this country land is either freehold or leasehold. A freehold interest in property is the highest interest that can be held by an individual and in general such an owner is free to do as he wishes with the property. A leasehold interest is less than a freehold interest in that it is for a term of years and accordingly will end at some date in the future. The owner of the freehold is granting a lease for a period of time. It creates a relationship of landlord and tenant and is governed by the provisions of Deasy's Act 1860.

5. MONEY

Before choosing a property the purchaser must make sure he either has the necessary money for the purchaser or otherwise has secured a mortgage for the value of the proposed purchase. The market for home lending is very competitive between the banks and the various lending institutions at the moment. It is very important for a person who is considering purchasing a house to consider the financial commitment that is involved. The lending institution should be approached as early as possible. They will give you an idea of the amount they are willing to lend you. You will then know how much you can spend and the type of house and the area that you will be looking in. the lending institution will require you to fill out an application form and give them certain information as regards your income. When a borrower and a lender enter into a mortgage transaction the lender takes a legal charge over the property. This is the security for the loan in the event that the borrower fails to repay the mortgage.

6. CONTRACT STAGE

The sale and purchase of land and houses are governed by Section 2 of the Statute of Frauds (Ireland) Act, 1695. The general rule according to this statute is that all contracts for the sale of land must be in writing. However, this definition is not strictly true as what the Act requires is that any agreement to sell land be evidenced in writing. At a very minimum it is necessary that there be written evidence in relation to the parties, the property and the price paid. In practice most conveyances use the Law Society's standard form of particulars and conditions of sale. This contract deals with the following matters:

a) Makes provision for consent of a non-owning spouse under the Family Home protection Act 1976. Under this Act a spouse cannot sell any property, which is a family home without the consent of the other non-owning spouse. This must be a prior consent and accordingly must be endorsed on the contract prior to it being signed by the spouse who is the owner of the property.

b) Makes provision for the names and addresses of the parties.

c) Sets out the purchase price and the deposit.

d) Sets out the closing date. This is the date on which the parties to the contract agree the deal should be finalised, the purchase money paid over and the deeds and the keys to the property handed across.

e) The contract will also list the various documents, which have been shown prior to the contract being signed. A purchaser who signs the contract without inspecting all the documents which have been made available to him is deemed to have full notice of them and is caught by the consequences of any onerous conditions which may appear on them

f) The contract then continues with a number of standard conditions. The most significant of these contains the procedure to be followed when a property is bought and sold at auction, a number of warranties and in particular a warranty that any development of the land since 1 October 1964 has full and proper planning permission.

7. SEARCHES

These are enquiries that a purchaser should make in the course of purchasing property. There are some, which should be made prior to the contract being executed, and some which are made on the date of closing the transaction.

The pre-contractual ones are as follows:

(a) Planning search: This can be made in the planning office. This will let the purchaser know how the property is zoned, be it residential, commercial or otherwise; whether there any proposals for road widening in the area; and whether or not any applications for planning permission in respect of the property have been granted or indeed rejected.

(b) A Licensing Search: this will arise when the property is a pub or a hotel. It will establish the nature of the licence and the extent to which the premises are licensed.

(c) A Compulsory Purchase Order Search: This can be made with local authority. If a CPO has been made the vendor can no longer give good title as the title no longer vests in him strictly speaking.

The following searches are done on the day of closing:

(a) A Land Registry search: This is a search in the land Registry to inspect the register or folio to find what the up to date position is. Such a search will establish the ownership of the property, the title whether absolute or possessory, whether it is leasehold or freehold, whether or not there are mortgages, rights of residence or other restrictions on the folio.

(b) A Company Search: This is a search made in the Companies Registration Office, which will confirm that the company exists and is still on the register and also will disclose any charges, which exist against it. It will also disclose the existence of a winding up order or petition. It is normal on closing to get a certificate from the Company Secretary certifying that no resolution has been passed.

(c) A Judgement Search

(d) Bankruptcy Search

(e) Sheriff and Revenue Sheriff Searches

(f) Registry of Deeds Searches

8. COSTS

A person buying a house must realise that there are a lot of other hidden costs involved apart from the purchase price of the house.

(a) Stamp Duty This will apply to all transactions involving the purchase of property. The duty will depend on the value of the house.

(b) Search Fees Will vary depending on the title and extent of the enquiries to be made.

(c) Solicitors Fees Varies from solicitor to solicitor and quite competitive at the moment.

(d) Surveyors Fees Again depends on the details of work to be done but it is essential for a surveyor to assess the condition of the property

(e) Registration Fee These are the costs associated with registering the title with either the Registry of Deeds or the Land Registry.

(f) Insurance It is essential that adequate insurance be put in place covering the structure of the property when the purchase is completed. It is the seller's responsibility to have the property insured up to the date of the closing and then once the deal is completed it is up to the purchaser to insure the property. The lending institution will also insist that mortgage protection insurance be taken out. This ensures that if the borrower dies that the proceeds of the mortgage protection insurance will pay off the remainder of the mortgage.

9. MISCELLANEOUS

(a) Easements Land and buildings can involve other people's rights to or over the property, for example rights to way, rights to fish etc. All of these matters will be properly investigated before proceeding with the purchase. These are made as part of the Requisitions on Title during the contract stages mentioned earlier.

(b) Fixtures and Fittings Fixtures, which are attached to the land, are presumed to be part of the sale unless specifically excluded in the contract.

(c) Family Home Protection Act, 1976 As already laid out above this Act curtails the right of an owner to sell the family home without the prior consent of his or her spouse.

(d) Planning Permission Any house built since 1 October 1964 requires Planning Permission. It is the responsibility of the purchaser's solicitor to ensure that the necessary planning documents are in order. An architects certificate will usually be required confirming that a second hand house was built in accordance with the conditions of the planning permission.

10. MOVE IN!

Selling a house

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1. How do I sell my house?

There are two ways to sell a house – by private treaty or by auction. It is important to be guided by an auctioneer or other professional in the area as to the best way to sell your particular house. Which method is the better will depend on a number of factors including the type of house, the state of the property market, the area etc.

This is why it is best to consult a professional in the area to see what the best option is for you. No matter what method you use it is essential that you notify your solicitor of your plans to sell the house so that he may prepare the title documents and the contract for sale.

2. Do You Have a Mortgage?

Most houses these days have mortgages on them. If your house still has a mortgage on it you will need to give authorisation to the solicitor to take up the title deeds from the lending institution in order to prepare the contract for sale. It is important to do this as early as possible to give the solicitor time.

3. Preparing The Contracts for Sale

The contract for sale is drawn up once the solicitor has received all the relevant documentation from you and the lending institution. If the solicitor is preparing contracts for a sale by auction he just leaves the purchaser and purchase price blank until the auction is over and the purchaser is then known. Obviously before the auction the prospective bidders will want to check the title documents before the auction. If the sale is by private treaty the contract will contain all names including the purchase price.

4. Planning Permission

Any house built since the 1st October 1964 requires planning permission. The solicitor will need to make sure that the planning documentation is in order. This will usually entail an architect’s certificate stating that the conditions of the planning regulations have been complied with. If there has been any development on the property a similar approval will be required.

It is very important that the planning documents are in order before the proposed sale. Otherwise the potential purchaser may, on discovery of a discrepancy, pull out of the transaction at a very late stage.

5. Selling the Family Home

If you are selling your family home, even if it is in only one of the spouse’s names the consent of the other spouse is required. This is required under the Family Home Protection Act 1976. If both names are on the deeds then the problem does not arise, as both their signatures are required anyway. On completion of the sale of the Family home both spouses will have to sign a Family Home Protection Act Declaration. You will also have to produce a copy of your State Marriage Certificate.

6. Signing Contracts and Closing

The first stage of the contract process is when your solicitor sends contracts and a copy of the title deed to the property to the purchaser’s solicitor for signing. He will then research the title and study the contract’s conditions and then advise is client as to any changes/issues that may be relevant. After these have been addressed he will then ask the purchaser to sign the contract and pay a deposit. The contract is then returned to the vendor’s solicitor who will call on the vendor to sign the contract in duplicate. One part is then returned to the purchaser’s solicitor who will then raise requisitions on the title, which have to be responded to by the vendor’s solicitor.

The vendor’s solicitor will prepare the documents for closing and if there is a mortgage he will obtain redemption figures from the lending institution. The vendor (and spouse if necessary) will the sign the closing documents and declaration, if necessary. On closing the vendor’s solicitor will meet the buyers and exchange the keys of the property, which the vendor will have given him, for the purchase money.

7. Buying and Selling at the same time

This can be quite a tricky area if you are trying to juggle both to happen at the same time. It is very important to consult your solicitor in this area, as they will have experience in such matters. It is usually best to first get a binding contract fro the purchase of the new house. You may want to sign the contract for the purchase of the new house contingent on the sale of your old house going through. It is not essential that both closings be on the same day, as things can go wrong at the last moment.

8. Bridging Finance

If you wish to buy your new house before selling your old one you may need to talk to a bank as regards bridging finance between the purchase of the new house and the funds coming through from the old house. The lending institution will obviously require that you have a binding contract to sell your house and an undertaking from your solicitor that he will forward the proceeds of the sale to them. The cost of such financing is usually quite low as it is for such a short period of time but it is difficult to access from lenders at the moment.

9. Selling a house and taxation

If you are selling a house, which is not your main residence, then you must pay Capital Gains Tax. If the property is your main residence then you are not liable for Capital Gain Tax. Again your solicitor will advise you as to the amount that you will have to pay to the Revenue Commissioners.

It will depend on the value of the house. Whether or not it is your main residence your solicitor will have to get a Capital gains Tax Certificate for the purchase price if the purchase price is greater than the threshold set by the Revenue Commissioners. You will also have to give your P.P.S number to the solicitor.

10. Costs of selling a house

The two main costs of selling a house will be the auctioneer’s fees and the solicitor’s fees. They are well worth paying as they both will have had experience in the area and will know the procedure well. This should avoid any hiccups in the process. Both usually charge a percentage of the purchase price with the auctioneer usually charging slightly more than the solicitor. At the moment the climate is quite competitive amount both professions so it is advisable to shop around.

Law for Landlords and Tenants

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There are many parties a person may be required to engage with in their capacity as a landlord. A landlord may have dealings with the Private Residential Tenancies Board (‘The PRTB’), a management company and/or certain maintenance persons, and the landlord will have certain rights and obligations in respect of each of these groups. However, the primary relationship in respect of any tenancy will be that between landlord and tenant.

Primary Legislation (available at www.irishstatutebook.ie):

  • Landlord and Tenants Acts 1967 – 1994.
  • Residential Tenancies Act 2004.
  • Multi-Unit Development Act 2011.

A landlord in Ireland is defined as any person, being the owner of land or an owner of a building, who has leased that land, building, or part of that land or building to another person.

A tenant is defined as a person who pays rent to the landlord in order to occupy land or premises which is subject to a tenancy agreement.

Landlords’ Rights

The legislation outlines certain minimum rights which are owed to landlords as a matter of course. They are outlined as follows:

  • As a landlord, you will have the right to set the rent to be paid by the tenant. This rent cannot however exceed the current market value.
  • A landlord shall receive the correct rent on the date that it is due.
  • A landlord may review annually the rent payable under the tenancy agreement.
  • A landlord will have the right to terminate a tenancy within the opening six months, without been required to provide reasons for the decision to terminate.
  • A landlord has the right to be informed of who is ordinarily living in the property. This excludes visitors staying overnight and a short term stay.
  • A landlord has the right to have their permission sought where a tenant wishes to sublet the premises or where they wish to assign the tenancy. It is important to note that where a landlord refuses to grant permission in this situation, the tenant then has the right to terminate the tenancy agreement before the expiry date.
  • A landlord has the right to be kept informed by the tenant of any repairs or maintenance which the premises is in need of.
  • A landlord has the right to be afforded reasonable access to the premises to carry out any such repairs or maintenance. However prior permission must be sought from the tenant.
  • A landlord will also have the right, as a matter of course, to refer any disputes to the Private Residential Tenancies Board Dispute Resolution Service provided that the tenancy is registered with them. In addition to the rights of landlords’ in respect of their tenancy, it is exceedingly important to bear in mind that a landlord is also prohibited from doing certain things under the legislation.
  • A landlord does not have the right to enter a tenants home without prior permission, unless perhaps in the event of an emergency.
  • A landlord will not have the right to take possession or retain possession of a tenant’s property even in a situation where there is rent outstanding.
  • A landlord may not penalise a tenant in any way for referring a dispute to the PRTB.
    • Landlords’ Obligations

      The legislation requires that the landlord act in accordance with the tenant’s rights. Therefore the landlord will be responsible for fulfilling certain obligations. Where there is a breach of the landlord obligations, the tenant may refer the dispute to the PRTB Dispute Resolution Service. Alternatively, a breach of landlord obligations may have implications for termination of the tenancy agreement which the tenant may take advantage of. This is discussed further below.

      • The landlords’ minimum statutory obligations are outlined as follows:
      • The landlord must register the tenancy with the Private Residential Tenancies Board
      • The landlord must provide the tenant with a rent book or a statement of the rent paid. A rent book is a document which records details of the tenancy and notes all payments of rent that have been paid to the landlord.
      • The landlord must ensure that the premises meets certain minimum standards. These certain minimum standards require that:
      1. The building must be free from damp and in good structural repair;
      2. Hot and cold water must be available to the tenant;
      3. There must be adequate heating and ventilation of the building
      4. All appliances provided must be in good working order, and;
      5. Electrical wiring, gas and water pipes should all be in good repair.

      Reasons for Termination:

      Where a tenancy has lasted more than six months but less than four years the reason for the termination must be stated in the notice under Section 34 of the Residential Tenancies Act 2004. The termination will not be valid unless the reasons given are one of the following:

      • That the tenant failed to comply with tenancy obligations, having first been notified of the failure and given an opportunity to remedy it;
      • That the landlord intends to sell the dwelling in the next three months;
      • That the dwelling is no longer suited to the needs of the occupying household;
      • That the landlord requires the dwelling for their own or family-member occupation;
      • That vacant possession is required for substantial refurbishment of the dwelling;
      • That the landlord intends to change the use of the dwelling. Where the tenancy is a fixed-term tenancy, this can only be terminated where:
      • The landlord or tenant has breached one of the conditions of the lease or one of the obligations under the Act;
      • The landlord has refused a request by the tenant for assignment of the lease, thereby allowing the tenant to serve notice, or;
      • There are provisions in the lease allowing for early termination. Where a tenant breaches obligations under the act, twenty eight days notice is all that must be given regardless of the duration of the tenancy. This should however be preceded by a warning notice which allows a reasonable opportunity to remedy the breach, if it is a tenancy of six months or more. If the reason for the termination of the tenancy is for arrears in rent, then a fourteen day notice letter must be sent in advance of the notice.

      Buying a Commercial Property

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      Buying Commercial 11 Tips

      The process of buying a commercial property, whether as an investment or for your own use, can be broken down into 11 clear steps as follows:

      1. FIND THE PROPERTY AND DO YOUR INVESTIGATIONS:

      Having found the property in which you are interested, you need to take plenty of time finding out all about the property. Visit the planning office to examine the planning records for the building and the surrounding buildings. Find out what plans there are for developments in the area. Talk to local businessmen, engineers and auctioneers to get the inside track on the potential for the building and for the area.

      2. SECURE THE PURCHASE:

      Having decided that you want to proceed, you will be asked for a booking deposit by the auctioneer selling the property. This does not legally bind either party to proceed and it will be refunded in the event that you don’t. It will, however, put in train the process for contracts to be issued.

      3. CONTRACT:

      Having been advised by their client’s auctioneer about the sale, the solicitors for the vendor will obtain his title deeds and prepare a contract. He will send it to the purchaser’s solicitor. This will typically take a week to two weeks.

      4. SURVEY:

      Instruct an architect, engineer or building surveyor (who is fully qualified and has professional indemnity insurance) to carry out a structural survey of the property. As well as being asked to examine the physical condition of the building, he should be provided with all planning documents received with the contract. He will often be asked to visit the planning office to look at the planning file for the property. He should also look at the boundaries to make sure they are clearly defined and there is no likelihood of any dispute. The principle “Caveat Emptor” (let the buyer beware) still applies to the purchase of property. You buy the property as it is, warts and all!

      5. LOAN:

      Make your application at an early stage for a loan from your bank/building society, making sure that you provide them with all the information they require at the start (for example; identification documents, copy accounts, copy evidence of income etc.).

      6. “MAKE YOUR MIND UP TIME”:

      At this stage, you have decided that you are happy to proceed, you are satisfied with your surveyor’s report and you have a loan offer. You will visit your solicitor so that he can advise you about the contract which you will then sign. You will generally be required to pay a 10% deposit (less the booking deposit you have already paid).

      It is very helpful if the solicitor has already received the mortgage documents from the bank so that all documentation can be signed at the one visit. The signed contract and deposit is sent to the vendor’s solicitor in duplicate. The vendor will sign one copy and return it and you are then bound to proceed. If you don’t proceed, you will lose your deposit and will be liable to be sued to complete the contract or for any losses that the vendor suffers in selling the property elsewhere.

      7. LOAN CONDITIONS:

      Get cracking as soon as possible on satisfying the loan conditions. The biggest culprit in delaying the issue of loan cheques is life insurance (if that is required in your loan offer). Make your application for life cover at the earliest stage possible so that if there are any medical reports/examinations required, you will be ahead of the game. The bank will not entertain a request for the loan cheque until the life assurance is in place and also until the building is covered by fire insurance. The valuer who will value the property for the bank will generally specify what level of fire cover is required. When you arrange the insurance, you must obtain an “indemnity letter” from the insurer confirming the insurance and noting the interest of the bank.

      Make sure that you have gone through the loan offer to see that there are no other conditions in the loan that you need to deal with.

      8. REQUISITIONS:

      Requisitions on title consist of 40/50 pages of questions that will be put by your solicitor to the solicitor for the purchaser dealing with a multitude of title and practical issues regarding the property. Correspondence may follow if your solicitor is unhappy with the replies he has received.

      9. COMPLETION:

      There will generally be a period of three to four weeks between the contract stage and the completion of the sale. The solicitor will ensure that all his queries have been answered satisfactorily and will request a loan cheque from your bank. He will ask you for any balance that is required and for his fees and the outlays (money spent on your behalf). These will include stamp duty (generally at 9% for a commercial building), land registry fees and search fees. If you have already signed the relevant documentation with your solicitor, you will not be required for the closing meeting and indeed many closings now take place by post. The solicitor for the purchaser sends the money to the solicitor for the vendor and the documents and keys are then despatched.

      The property is now yours and you can take up occupation!

      10. REGISTRATION:

      After the sale, your solicitor will ask you to sign the purchase deed and will then register your title and the mortgage in the Land Registry or the Registry of Deeds. When he has completed this, he will send the deeds to your bank or building society where they will be kept.

      11. THE BANK’S SOLICITOR:

      For smaller transactions, the bank will send the mortgage documentation directly to your solicitor and will accept the certificate from him that the title is in order and will rely on him to register their mortgage. However, occasionally they will instruct their own solicitors to prepare the mortgage documentation and those solicitors will accept the certificate from your solicitor. Finally, particularly in higher value transactions, they may instruct their solicitors to carry out a full investigation of the title themselves and this may slow down the process somewhat.

      TO SUM UP:

      The process of buying a property can take anything from three weeks to two months, depending on the complexity of the transaction and whether any problems arise. Having completed the transaction, you are ready to start work in your building or, having found a tenant, arrange lease documentation with your Solicitor and create an income stream. If you proceed down this route, it is important that leases be in place before your tenant is allowed in. Your lease gives you protection and, possession being nine-tenths of the law, your tenant will lose interest in a lease if he is already in possession. Your Solicitor will also deal with issues like VAT on the lease.

      Insurance Fraud

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      Normally when you see headings like “insurance fraud”, you think of unscrupulous plaintiffs claiming they have been in a road traffic accident when they have not. Or you think of people who have been involved in an accident and then grossly exaggerating their claims. You don’t often think of insurance fraud referring to the insurance company.

      THE THREAT

      Let me therefore highlight a particular case I have just finished with. This case involved a client who had been seriously injured and the insurance company made it clear that they felt that the plaintiff was grossly exaggerating his symptoms. A week before the hearing, in breach of all the regular rules, the insurance company sent a notice stating that they intended to call three private investigators. At the same time they said they were no longer prepared to settle this case in line with an offer they had previously made. Obviously I was then very concerned that my client had misled me and that the insurance company had some damming video tape evidence that would win the case for them.

      HONEST CLIENT

      When the case came up for hearing, the client, incredibly bravely, stood his ground and would not accept all the legal advice about the figure he should accept and instead said he had nothing to fear and he was not exaggerating anything and they could have no evidence against him. The case went ahead and the insurance company did not call any private investigator evidence and in fact had no private investigator evidence. They will say that this was an attempt to bluff us into a settlement and that it is just part of the negotiating process.

      FRAUD

      I call it fraud. I call it insurance fraud. All you ever hear in the media is of the poor unfortunate insurance companies having to pay out fortunes in legal costs and of unscrupulous claimants inventing road traffic accidents so as to make money from insurance companies. If this had happened the other way around and the plaintiff had been found to be deliberately misleading the other side, a file would probably have been sent to the DPP’s office to consider a criminal prosecution. I do not see why it should be any different where it is the insurance company who commits the fraud.