IRELAND Law and Practice Contributed by: Diarmuid Mawe, Craig Kenny, Katelin Toomey and William Fogarty, Maples Group
will acquire a good marketable title. The under - lying principle is one of caveat emptor ( “buyer beware” ). The Law Society of Ireland produces a template contract for sale for property transactions. The template contract requires the seller to list the documentation and searches to be provided in relation to the property and incorporates the current version of the general conditions: the 2023 Law Society of Ireland General Conditions (Revised) (the “General Conditions” ). The Gen - eral Conditions make assumptions about the property and place certain disclosure obligations on a seller, which the seller can only exclude by inserting a bespoke special condition in the contract for sale. In this way, the buyer should be on notice of any deviations from the template. In commercial property transactions, it is normal for the seller to seek to limit the warranties being provided in the General Conditions. Where the seller’s knowledge of the property is limited (eg, in an enforcement sale), it is usual to limit many of the warranties. The buyer’s lawyer also carries out searches against both the seller and the property. 2.5 Typical Representations and Warranties The principle of caveat emptor is diluted some - what by the General Conditions, which place a number of warranties and disclosure require - ments on the seller. For instance, the General Conditions include numerous warranties relat - ing to matters such as notices, planning compli - ance, boundaries, easements and identity. These warranties can be excluded or amended by way of special condition by agreement between the parties.
In addition to any specific disclosures, sellers often limit the warranty provided in respect of planning and building control compliance by reference to documentation and certificates of compliance with planning and building regula - tions in the seller’s possession and provided to the buyer. Where the property is being sold in an enforcement scenario (ie, by a receiver, a liqui - dator or a mortgagee), it is common for many of the warranties contained in the General Condi - tions to be expressly excluded or varied/limited by reference to knowledge. Parties to a contract for sale are also free to negotiate whether any of the representations and warranties included will be subject to certain limitations or caps on liability, or if they have a limited validity period. Where no such period is included, the time period in which proceedings must be brought in respect of a breach of the contract defaults to the provisions of the Statute of Limitation 1957 – that is, six years from the date the action accrued where the agreement was executed as a simple contract, or 12 years where the contract was executed as a deed. There are also implied covenants as to owner - ship on the part of the seller, which are detailed in the 2009 Act. A seller can be liable for misrepresentation. Gen - eral Condition 29 of the General Conditions pro - vides that a buyer will be entitled to compensa - tion for any loss suffered as a result of an error, which includes any non-disclosure, mis-state - ment, omission or misrepresentation made in a contract for sale. However, as outlined above, a seller may seek to exclude or vary this condition by inserting an appropriate special condition in the contract for sale.
471 CHAMBERS.COM
Powered by FlippingBook