Two related developments on 11 April last caught our attention.
Early that Thursday morning the Legal Services Regulatory Authority announced that it had submitted its report to the Minister for Justice on the proposal that a new profession of 'conveyancer' might be established.
The Authority concluded that such an innovation would only be viable as part of a wide range of other more significant reforms, including digitising conveyancing with greater use of technology.
Later that day, the Supreme Court delivered judgment in Maher v Dublin City Council [2024] IESC 14, a case concerning the imposition of a derelict sites levy on a property at East Wall in Dublin.
Digitising conveyancing seems a long way off when our legislative framework governing the electronic execution of documents and Land Registry rules still require wet ink signatures on real estate deeds and other transfer documents. In fact, over the past number of years the Oireachtas has taken various steps that operated, presumably inadvertently, to make the process of digitisation the conveyancing process more difficult.
This occurred through legislation which converted certain unpaid taxes and kindred payments into statutory charges on property. One such payment was the subject of the Maher v Dublin City Council case.
Once legislation provides that an unpaid tax is a charge on property, that immediately impacts on the conveyancing process. If a buyer of property may become liable for a tax due by the seller, then to protect the buyer, solicitors must check whether that tax has been paid, and so another item is added to the conveyancing checklist.
In a residential context the current checklist extends to checking payments of the non-principal private residence tax (remember that?), local property tax and derelict sites levies, and will soon feature residential zoned land tax too.
Maher v Dublin City Council concerned a dispute over an unpaid derelict sites levy. Ms Maher's predecessor should have paid the levy to the City Council, but didn't. That predecessor does not appear to have paid the mortgage on the property either, which lead to Bank of Ireland ultimately selling the property to Ms Maher.
An important rule in secured lending on property since the mid-nineteenth century is that a bank holding a first ranking charge over a property can sell the property clear of subsequent charges when enforcing its security.
In Maher the City Council maintained that the unpaid levy was a charge on the property and still burdened Ms Maher's title, even though she was not the person liable to pay the levy and Bank of Ireland sold the property on foot of a first ranking charge. The City Council argued that the statutory charge provided it with security for payment of the levy and it should have a special status compared to other charges.
Both the High Court and Supreme Court held that the statutory charge deployed to help local authorities collect the levy did not trump the long standing rule that allows enforcing banks to overreach subsequent charges – so on its face this judgment is bad news for local authorities but good news for banks.
More fundamentally, this case reminds us that using the conveyancing process to assist in tax collection does nothing to advance the cause of making the conveyancing process more efficient or transparent.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.