Purchasing Residential Property via Amorys Solicitors

Purchasing Residential Property via Amorys Solicitors

What are you paying us to do?

At Amorys we do our utmost to make this very important event in your life run as smoothly as possible for you. We endeavour to ensure that our clients are fully informed, both before and during the conveyancing process, as to the procedures involved and the pitfalls which may be encountered when purchasing residential property.

Purchasing Residential Property Procedures

The following is a simple guide to the procedures involved and what work will be completed by your solicitor at Amorys:

  1. You will give details of your solicitor to both the auctioneer and your lending institution. The auctioneer will provide your solicitor with a sales advice note.
  2. Your solicitor will write to you with a comprehensive introductory letter, a questionnaire for you to complete and our Amorys Guide to Purchasing Residential Property which provides you with detailed information of the conveyancing process.
  3. If they have not already done so, the vendor’s solicitor will take up the title deeds to the property.  A draft contract for sale will be drawn up by the vendor’s solicitor and this, together with the relevant supporting copy title documentation will be sent to your solicitor who will peruse the contract and all of the documents, including replies to Requisitions on Title, and identify any anomalies that may arise.
  4. More often than not, pre-contract enquiries will be raised by your solicitor.  These may be straightforward questions which are easily satisfied by the vendor’s solicitor or there may be more complex title problems.  They are rarely insurmountable but may be time-consuming to resolve.  Some queries may also arise as a result of answers you have provided in your questionnaire so it is very important that this is completed as accurately as possible.  For example, you must give us details of any works, such as an extension to the property, which you understand may have been carried out, so that we can ensure that we receive all necessary planning information from the vendor’s solicitor.  This forms an important part of the title and will be required by your lending institution.
  5. In some circumstances, the vendor or their solicitor may not be willing to provide information or documents which are considered necessary by your solicitor and there can be a considerable amount of “to-ing and fro-ing” until all is satisfactorily resolved.
  6. Once you and your solicitor are happy with the draft Contract for Sale then it is ready to be signed by you.  You will be fully advised by your solicitor as to the legalities of what you are signing.  At this time, you will be required to sign the mortgage deed and other documents, all of which will be fully explained to you.
  7. When we have transferred the balance of the deposit (received from you into our client account) to the vendor’s solicitor and the vendor also signs the Contract for Sale, one part is returned to your solicitor and a binding contract is in place.
  8. Your solicitor will continue to liaise with you regarding the progress of the conveyance, any outstanding matters relating to your loan, etc.  You will be provided with a cash statement outlining all your financial obligations prior to the closing date.
  9. Approximately ten days prior to the closing date, your solicitor will request drawdown of the loan money from your lending institution which will be paid into our client account.  If there is a balance of money required from you, you will be asked to furnish these funds to your solicitor a minimum of five working days prior to completion, together with fees, outlays and stamp duty payable.  Your solicitor will also ascertain from the vendor’s solicitor what is required vis-à-vis the apportionment of Local Property Tax and service charges (if applicable).  If you are purchasing an apartment, there are a number of additional documents which will need to obtained from the vendor’s solicitor prior to the closing date (such as block insurance indemnity letter, service charge history, etc.).
  10. On the completion date, searches against the property and the vendor will be carried out by your solicitor and any unexplained acts that arise will be certified by the vendor’s solicitor.  Once the searches are “clear” and all required title documents are received from the vendor’s solicitor then the balance of the purchase money are transferred/released and the transaction is complete.

Post Completion

  1. Even though you are in possession of your new property, your solicitor’s work is not over and the following will be required post-completion:
  • Payment of stamp duty online as soon as possible and obtaining a stamp duty certificate;
  • Following up on any undertakings given by the vendor’s solicitor – such as discharge of the vendor’s mortgage, payment of any outstanding service charges, LPT etc.
  • If necessary, preparing the documentation required for an application for first registration to the Land Registry;
  • Preparing all documents to be submitted to the Land Registry for registration;
  • When registration has been completed, scheduling all title documents and preparing the Certificate of Title for submission to your lending institution.
  1. When all of the above has been completed, your file is ready for archiving. Our firm is obliged by the Law Society to retain your file for up to 12 years. It is the practice of our firm to send files to an off-site storage facility.

The purchasing residential property procedures above are a simplified version of the conveyancing process.
A conveyancing transaction requires many hours of work for your solicitor and every purchase is different but all conveyancing cases have one thing in common – they all need the care and attention to detail that only comes from instructing an experienced professional.  We provide excellent value for money to our clients and are confident that we provide a highly competitive and first-class service.

Red Adair once said .. “If you think it’s expensive to hire a professional to do the job, wait until you hire an amateur”!

Leading Dublin solicitors which provides high quality legal advice

Get Your Guide to Purchasing Residential Property

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Purchasing Residential Property via Amorys Solicitors”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

Help to Buy Scheme for First Time Buyers

First-time buyers will welcome the news that the Help to Buy scheme (the “HTB”) was extended for a further two years to 31 December 2021 in Budget 2020.  The Help to Buy Scheme is a tax refund of up to €20,000 which can be used towards the purchase price of a new home with a value of up to €500,000. The HTB had been due to be discontinued at the end of 2019.

How the Help to Buy Scheme Works

The help to buy scheme operates by providing a rebate of up to €20,000 of Income Tax and Deposit Interest Retention Tax (DIRT) paid by the first time buyers in the four years prior the purchase or new build.

The amount that can be claimed is the lesser of €20,000 or 5 % of the purchase price of the property or market value of the new build when completed up to a maximum of €500,000 as follows:

PURCHASE PRICE MAXIMUM REFUND ON PURCHASE AFTER 31/12/16
€200,000 €10,000
€250,000 €12,500
€300,000 €15,000
€400,000 €20,000
€500,000 €20,000
€501,000 €NIL

The rebate is only available for properties valued at €500,000 or less.

The maximum payment is €20,000 per property and applies regardless of how many people enter into a contract to buy a house. Payment of the rebate is made either directly to the developer (in the case of first time purchased properties) or to a bank account held with a specified qualifying lender in the case of self-built properties.

Retrospective applications are only available in limited situations – see below.  Generally in order to qualify for the HTB you must not yet have completed the purchase/ construction of your new home.

Only newly built dwellings (apartments, houses, etc) and self-builds are included in the scheme. Conversions and restorations of old or derelict homes do not qualify, but conversion of a non-domestic building for residential use may qualify.

It is a requirement of the scheme that a loan with a “qualifying lender” of at least 70% of the market value of the property is taken out.  Therefore cash purchasers and those with a loan to value ratio of less than 70% are excluded from this scheme.

If the property is a ‘first time purchased’ property, in order to qualify the developer or contractor must be on the Revenue’s list of approved developers and contractors.  In the case of self-builds, Revenue approval of the contractor is not required.

Who Can Make a Claim?

To claim the Help to Buy Scheme, you must:

  • be a first-time buyer;
  • buy or build a new property between 19 July 2016 and 31 December 2021;
  • live in the property as your main home for five years after you buy or build it; and
  • be tax compliant, if you are self-assessed you must also have tax clearance.

Retrospective claims are only granted where a contract for sale was executed between 19 July 2016 and 31 December 2016 (in the case of newly purchased property) or the first part of a qualifying loan was drawn down during that time in the case of self-builds.

To qualify, one must not have previously bought or built a house or apartment, either on his/her own or jointly with any other person. If a claimant is buying or building the new property with other people, they must also be first-time buyers.

The relevant section of the Help to Buy Legislation defines a first-time purchaser “as an individual who, at the time of a claim…… has not, either individually or jointly with any other person, previously purchased or previously built, directly or indirectly, on his or her own behalf a dwelling”.  Therefore, a person who has acquired property by way of an inheritance qualifies as a ‘first time purchaser’ under the rules of this scheme.

The HTB is not available for properties where the purchase value (as defined in the relevant legislation) is greater than €500,000.

How to Register

First of all, you need to register for the scheme by following this link to the Revenue Online System (ROS).  You will need your P60 and your driver’s license number to complete registration and time especially if you have not filed a Form 12 (for PAYE tax payers) or a Form 11 (for self-assessed individuals) for previous years. A Step-by-Step guide on applying and completing form 12s is available here and to self-assessment is here.

If you are tax compliant, your application will be approved and you will be provided with an application number/ an HTB number and a summary of the maximum amount you can claim. You will also be given an access code separately through MyEnquiries.  If not, you will not be eligible to apply for the Help to Buy Scheme.

Keep a safe note of both of these codes as you will need to provide them to your lender (in the case of a self-build) and your solicitor (where you are purchasing the property). Your contractor or solicitor will require this information to verify what you have submitted.

How to Make a Claim

After you have registered for the Help to Buy Scheme as set out above, in order to claim the refund you will need to upload the following on to the HTB section of the Revenue Online System (ROS):-

  1. Evidence of your mortgage (this could be the first two pages of your letter of offer);
  2. A copy of the signed contract between you and the vendor OR proof of drawdown of the first tranche of the mortgage if the property is a ‘self-build’;
  3. The contractor (in the case of a ‘new purchase’) or your solicitor (in the case of a ‘self-build’) will then be required to verify the details you submitted through the ROS system before the rebate issues.

Who Receives the Rebate?

In the case of retrospective applications (please see above) the rebate is paid directly to the claimant.

In the case of the first-time purchaser, the rebate is paid to the contractor and considered a reduction of the sale price on the completion of the sale. In the case of self-builds, the rebate will be paid to a bank account held with the particular qualifying lender.

Clawback

The property, when purchased must be occupied by the first time buyer or at least one of them in the case of multiple buyers for a period of five years from the date the property is habitable – otherwise, some or all of the rebate will have to be repaid.  The rebate is as follows:-

Leave or sell within 1 year 100% of rebate to be repaid
Ditto 2 years 80%
Ditto 3 years 60%
Ditto 4 years 40%
Ditto 5 years 20%

Summary

The Help to Buy Scheme incentive is an extremely attractive one for First Time Buyers of Residential Property and should be availed of where possible.  In view of the many actions required by both purchaser and solicitor and/or contractor prior to the issue of the rebate under the HTB, purchasers are advised to start the registration and claims process as early as possible to avoid delays when buying their new home.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Help to Buy Scheme for First Time Buyers”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

Rights of Cohabitant Living With a Separated Married Person

The breakdown of a relationship can be extremely difficult and often leads to one or both parties seeking legal recourse out of necessity to address financial & property related issues and access arrangements when they are parents of young children. The law recognises second or subsequent relationships after marriage and in certain cases, affords rights of redress to parties who were living together after that relationship ends notwithstanding the fact that one or both of them may be married to a third party.

Child Maintenance

It has been the case in Ireland for many years [i]  that a court has the power to order maintenance payments against one parent in favour of another in respect of a non-marital child even though one parent might be married to a third party.  It is possible for child maintenance proceedings to issue against a married cohabitant whilst judicial separation or divorce proceedings are pending against him/ her. Maintenance payments for non-marital children should be paid equally in priority to maintenance for marital children[ii].

A claim for maintenance in respect of a dependent non-marital child is claimed under the Family Law (Maintenance of Spouses and Children) Act 1976 (as amended).

Maintenance, Lump Sum Payments, Pension Adjustment Orders in favour of Qualified Cohabitant

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (the “2010 Act”) confers additional rights of redress on a ‘qualified cohabitant’ who is economically or ‘financially dependent’ on the other ‘by reason of the break-down of the relationship’ [iii] and it is ‘just and equitable’ for a Court to grant the specific relief sought under that Act in the circumstances.  It is important to note that rights under the 2010 Act only arise on the break down of the relationship.

The 2010 Act renders it possible for a qualified cohabitant to secure orders – including property adjustment, Compensatory Maintenance Payments[iv]  (or maintenance orders as referred to above) and pension adjustment orders[v].  – in his/her own favour personally, and not just in respect of maintaining a child of the relationship in question which is a novel step.

In circumstances where one or both parties are married, neither party will be deemed a qualified cohabitant until the cohabitant who is married, has been living separately and apart from his/her spouse for periods amounting to 4 years out of the 5 years prior [vi] to the date the cohabiting relationship ends.  In essence, neither party will be deemed a qualified cohabitant until the married party is entitled to seek a divorce.

A qualified cohabitant under the 2010 Act is someone who has been living with another in an intimate and committed relationship for 5 years or 2 years where they are parents of one or more dependent children.

It should be mentioned that the above reliefs under the 2010 Act apply subject to any Cohabitants’ Agreement contracting out of the said Act’s provisions.  A Cohabitants’ Agreement which has been entered into by the parties under section 202 of the 2010 Act will be enforced by a court save in exceptional circumstances where to do so would result in serious injustice.

Succession Rights

A qualified cohabitant also has a right to apply for provision from the net estate of a deceased qualified cohabitant under section 194 of the 2010 Act. In this respect, where the ending of the relationship is as the result of the death of the qualified cohabitant, the surviving cohabiting partner does not need to prove financial or economic dependence on the deceased in order to substantiate a claim to his/her estate under this section. However, the right of the qualified cohabitant under this section cannot exceed that which s/he would have been entitled to if the parties were married. In general terms, this could mean that the cohabitant would not be entitled to anything more than his/her ‘legal right share’ as defined in section 111 of the Succession Act 1965 (1/3 of the net estate if the Deceased had children living at the date of his/her death or 1/2 if s/he did not).

In addition, the right to be provided for out of a deceased cohabitant’s estate is strictly subject to a surviving spouse’s succession rights under the Succession Act 1965 which in small estates, could render any such right in favour of a qualified cohabitant valueless in practical terms. A surviving spouse could be first entitled to a legal right share (if the parties are not yet divorced) out of the net estate or could have a general right for proper provision to be made for him/ her under section 18 of the Family Law (Divorce) Act 1996 (the “1996 Divorce Act”). In addition, it is noteworthy that a court is required to consider the rights of other beneficiaries and the rights of a dependent child/ children prior to making an order under section 194.

An application for provision out of the deceased’s estate must be made within six months of the date of a grant of representation in the estate. There is a positive duty on the applicant/ claiming cohabitant to notify the personal representative of the proceedings and failure to do so could mean that the deceased’s assets would be distributed without any further recourse.

If the relationship ended prior to the qualified cohabitant’s death other factors apply in particular the surviving cohabitant will be required to prove financial dependence.

It is possible for both cohabitants to renounce/ waive their entitlements under the 2010 Act by entering into a Cohabitants’ Agreement. Such an agreement would be enforced by the courts except in exceptional circumstances where doing so would cause a serious injustice[vii].

Property Rights – Property Law

Separately it is worth noting that in addition to rights under the 2010 Act, parties living together may be in a position to obtain relief under the Land and Conveyancing Law Reform Act 2009 (the “2009 Conveyancing Act”)  for an order of partition (separation of each party’s interests in the property) and sale of property co-owned by them, either legally or beneficially under section 31 of that Act.

The application of property law in relation to co-owned properties can be very complicated where the parties are not in agreement in relation to their respective interests and the values of the same. For example, one party whilst not named on the title deeds may have contributed towards a mortgage on the property in which case s/he will have a beneficial interest in that property as a result. Disagreements also frequently arise in determining the exact value of alleged indirect financial contributions made by one party to the repayment of the mortgage.

Reliefs under the 2009 Conveyancing Act can be available in tandem with rights under the 2010 Act – ie in circumstances where the parties were living together and are deemed ‘qualified cohabitants’ under the 2010 Act (as above). Due to the wide reliefs available under the 2010 Act and the fact that proceedings, if issued are heard ‘in camera’ or in private in a family law court under that act, it is generally advisable for proceedings to issue under the 2010 Act where possible. Proceedings under the 2009 Conveyancing Act would be considered a ‘civil’ matter heard in public.

Where the application of the rules in the 2009 Conveyancing Act would cause an injustice when applied to what is in essence a family law dispute, in certain limited situations outside the scope of this article, equitable doctrines could apply to ease a strict application of those rules – such as placing a ‘stay’ or a hold on an order for sale of a property until the dependent child reaches 18 or 23 and in receipt of full-time education.

Summary

In summary, the law affords rights to cohabiting couples in certain situations, even though one or both of them may be married. Cohabiting couples do not have the same rights as married couples and their rights on succession are second in priority to the right of a surviving spouse and regard must be had to other beneficiaries, if a court is required to assess a claim under the 2010 Act. It is therefore important for a cohabiting couple comprising one or both individuals who are married to third parties to ensure each of them is aware of their rights and have made appropriate arrangements by a Will or otherwise in the event one pre-deceased the other.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Rights of Cohabitant Living With a Separated Married Person”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

[i] Since the introduction of the Status of Children Act 1987[ii] S. 3 of the Status of Children Act 1987 which in effect states that the marital status of a child’s parents is to have no effect on the child’s relationship with them is support for this statement.

[iii] See Section 173 of the 2010 Act

[iv] Section 175 of the 2010 Act

[v] Section 187 of the 2010 Act

[vi] This time period will change when a commencement order has been made in respect of section 4 of the Family Law (Divorce) Act 2019

[vii] Section 202 (4) of the 2010 Act

The Mediation Act 2017 and Litigation in Ireland

Many of the provisions of the Mediation Act 2017 (“the Act”) which became effective on 1st January 2018, placed already existing practices in relation to mediation on a statutory footing. However, the Act’s statutory promotion of mediation as a viable, effective and efficient alternative to court proceedings is no doubt a welcome introduction for litigants in Ireland.

Whilst before the Mediation Act 2017 came into force it was the practice of many if not most solicitors and barristers to advise clients of the benefits and mechanics of mediation as an alternative to court proceedings, there is now a statutory obligation on them to do so. Under the Mediation Act 2017, the High Court now has the power to stay or halt proceedings where a solicitor has not confirmed to the Court by way of a certificate that the Plaintiff has been advised of mediation in the terms prescribed by section 14 of the Act. The Act, as it currently stands, does not require solicitors acting on behalf of defendants to file a similar statutory declaration although they will no doubt advise their clients of the benefits of mediation in practice given the risks of the making of adverse costs orders outlined below.

It has always been open to a Court to consider a party’s conduct in litigation (in particular in relation to mediation) when making costs orders (order 99 of the Rules of the Superior Courts) too but the Act further highlights judicial scrutiny in this area. There is arguably therefore additional risk for a defendant that s/he could be held liable in full or in part for a plaintiff’s costs of litigation, should it decline mediation. Section 21 of the Mediation Act 2017 further strengthens “judicial discretion” to take into account “any unreasonable refusal or failure” of a party to consider or attend mediation when awarding costs at the conclusion of court proceedings. This is no doubt a welcome introduction for litigants who may not have sufficient resources for lengthy and protracted court proceedings.

There is no statutory obligation on parties to agree to mediation but if parties to a dispute do so, the Act provides that a ‘Mediation Agreement’ is to be signed by both parties specifically dealing with the appointment of a mediator, payment of his/her costs, the place and time of the mediation and the way in which it is to be conducted and explicitly acknowledging that the mediation and all reports, notes and records resulting therefrom are confidential and cannot be used in court proceedings. The benefit of the Mediation Agreement is that it provides certainty for the parties thereto and a clear timeline for the way in which their dispute will be dealt with. The confidentiality requirement can also be attractive for many commercial and family law litigants.

The Act further codifies the role of a mediator and provides for the introduction of Codes of Practice for the conduct of mediation by qualified mediators. A mediator who subscribes to a particular code of conduct must provide a copy of the code to each party involved in the mediation.  At present there are no codes of conduct prescribed for mediators in Ireland and mediators are unregulated here.  The Law Society of Ireland recommended in its Submissions at the Committee Stage of the bill that the Act would go further than it has in this regard but the opportunity was not seised at that stage.

A Mediation Agreement, when signed by all parties to a dispute has the effect of stopping the time within which to bring court proceedings under the Statute of Limitations Act until 30 days after the mediation process has terminated. This will be a welcome introduction for litigants some of whom who prior to the introduction of the Act, submitted to mediation at a stage when due to time constraints, it was necessary to issue court proceedings in tandem with the mediation process resulting in two ‘sets of costs’ for both parties.  The suspension of the statute of limitations during the mediation process is therefore extremely beneficial for parties to a dispute.

The new provisions in the Act requiring parties to consider mediation should be helpful in removing what may be seen as an obstacle to mediation or negotiation in practice. There can be occasions where parties do not want to propose mediation or negotiation as it may be misinterpreted as a sign of weakness. This new statutory obligation on solicitors, including importantly in house solicitors, to inform clients of the mediation process and the requirement to consider it before issuing proceedings may make parties less concerned about this possibility and should offer a feasible and cost-effective alternative to court proceedings.

The Mediation Bill 2017 was passed by the Houses of the Oireachtas and enacted on October 2 2017. On December 13 2017 the Minister for Justice and Equality signed the Commencement Order of the Mediation Act 2017 and all sections were commenced as of January 1 2018.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “The Mediation Act 2017”, please contact Deirdre Farrell, partner, Amorys Solicitors deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.

***Competition*** Win 2 tickets to Mario Rosenstock at the Gaiety Theatre, Dublin

***Competition***

Win Tickets to Mario Rosenstock

We have two sets of 2 tickets to Mario Rosenstock, “In Your Face!” at The Gaiety Theatre this Saturday night, 26th May 2018 to give to two of our Facebook, Twitter and LinkedIn followers. To be in with a chance of winning, like and/or follow us on Facebook, Twitter and LinkedIn and send your answer to the below question to info@amoryssolicitors.com.

What word is missing from the following sentence?

Amorys Solicitors is a boutique commercial and private client law firm with expertise in property, employment, company & corporate law, family law and personal injury litigation.

Our Twitter Page: https://twitter.com/AmorysSolrs

Our Facebook Page: https://www.facebook.com/AmorysSolicitors/

Our LinkedIn Page: https://www.linkedin.com/company/amorys-solicitors/

Our website : https://amoryssolicitors.com

The winners will be chosen at random and announced on Facebook at 9 am this Thursday,24th May 2018.

*Please note there must be a minimum of 14 entrants for this competition to run.

The personal information that you provide us in this competition will be used solely for the purposes of choosing winners at random.  At the end of the competition, you will be provided with an option to have your information erased completely or to join our mailing list for our quarterly newsletter.  Further detail as to how we treat personal data received from third parties through our website is set out in our data protection and privacy statement.

Best of luck!*

Amorys Competition 2 tickets to Mario Rosenstock Dublin

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