The Conveyance by a Personal Representative of Unregistered Title
28 September 2023
Much is made of the vaulted power of sale of a per rep and this is contained in section 50 of the Succession Act, 1965. It is generally understood by practitioners then, when a person dies the executor can enter into a contract to sell property but cannot complete the sale until the grant is through.
Solicitors love to have the “magic words” when it comes to drafting conveyances. In this case, many would refer to the wording in the Mary Laffoy precedents which serve as a good starting point for such a conveyance. The general wording of the operative provisions of a deed in a conveyance by personal representatives is as follows
In pursuance of the agreement and in consideration of the sum of €………… paid by the Purchaser to the Vendor (the receipt of which sum the Vendor acknowledges) the Vendor as personal representative of the Testator conveys the Premises to the Purchaser in fee simple.
So in one sense, there is no particular “magic” to the wording and it appears straightforward. However, as every conveyancer knows, the above wording contains hundreds of years of history and is the culmination, (represented by the reforms of the Land and Conveyance Law Reform Act 2009) of years of thought, discussion and debate.
None of this needs particular explanation, but the following may be a useful reminder of the law behind the above seemingly innocuous words of conveyance:-
- There is no need to have words of limitation (67(1) of the 2009 Act).
- However, the practice is to include them. This is due to the somewhat convoluted provisions of s. 80 (1) of the 2009 Act which states that the implied covenants in Schedule 3 of the Act, are deemed to be made when the conveyance clearly sets out the “interest to be conveyed”. The implied covenants can only arise when it is clear the nature of the interest passing. Thus the use of the phrase “in fee simple”
- This leads one to the implied covenants. Where one uses the phrase “as personal representative”, this means that you are conveying the property with the benefit of the implied covenants. In the case of a conveyance of unregistered land by a per rep, this means (as per Schedule 3 of the 2009 Act) that the per rep has not allowed any incumbrance on title and that the per rep is in a position to convey the title as set out in the deed.
On balance, while the law relating to covenants with land was complex prior to the introduction of the reforms by the 2009 Act, it would appear that the reforms themselves, while, good in tidying up the previous law, are not that seismic from a day to day practice basis.
It is the least that a purchaser could expect that when the purchaser is buying from a per rep, that the purchaser will get good title and in particular one not subject to secret charges or burdens. Further, a per rep should be slow to sell a property subject to such hidden burdens and should be advised about making a conveyance in those cases. The purpose of the covenant is to give a remedy to a purchaser in the event that such incumbrances do come to light post-purchase. One area where it may be important to advise per reps is to ensure that they are not selling title that may be subject to a squatter’s claim. Oftentimes per reps will be unaware as to what is happening on the ground with respect to a particular property and so it would be wise to advise a per rep to fully investigate this possibility to avoid exposure to a claim under the implied covenant.
Hope this helps and if you have any probate, tax, capacity or will drafting issues please feel free to reach out.