The average time taken to transfer a standard, registered title in Ireland is now over three months. In order to reduce this to closer to three weeks, a range of measures must be implemented; unfortunately, there is no silver bullet. No single stakeholder can streamline the entire process; a multi-agency approach is required.
Below we have outlined the measures required and the stakeholder responsible for each. It is said that “perfect is the enemy of the good” and this is very much true of the conveyancing process. To date, the problem has been presented as binary: we either move to a best in class, fully-digital e-conveyance solution capable of efficiently transferring title in days or we do nothing at all. This is not the case. We must crawl before we walk and walk before we run. Accordingly, the measures below have been categorised as either crawl, walk or run measures.
Crawl Measures
Crawl measures are quick-win, low hanging fruit, “no-brainer” measures that can be quickly implemented at low or no cost. These measures are extremely important however as they show practitioners that progress is possible. The decades-long stasis must be broken. A journey of 1000 miles begins with a single step. Below are the proposed first steps.
Policy Measures
Policy measures are perhaps the most attractive in that, at the stroke of a pen with no cost, meaningful efficiency gains can be realised.
Background:
Auctioneers often list properties for sale without confirming that their client has engaged a solicitor or has requested the deeds from the lending institution, if applicable. It is not uncommon for the first time a solicitor to hear that a property is to be sold, is on receipt of a sales advice note. When this happens, all parties must brace themselves for a tortuous three month ordeal as getting the deeds alone can take over a month.
IPAV has sponsored a bill, currently before the Oireachtas, to tackle this issue by requiring auctioneers, by law, to ensure that the legal pack is ready before the property is advertised for sale. The difficulty with this bill is that it moves the point at which the legal pack is prepared from after the property is sale-agreed to before the property is advertised for sale. Moving the task to a different stage in the process, without reducing the time taken to conduct the task itself, doesn’t expedite the overall process. As below, by precluding vendors from preparing the legal pack while the property is on the market, the bill, if enacted, would actually delay matters.
However, estate agents should ensure that their clients have engaged solicitors and have commenced gathering the legal pack before listing the property for sale i.e. gather the documents while the property is on the market. While we sincerely commend the intent behind the bill, we think it would actually delay, not expedite, the overall time required to sell a property, from decision to sell to closing the sale.
Proposal:
The PSRA and IPAV should advise all estate agents to ensure that solicitors are engaged and title deeds have been requested from lending institutions, when applicable, contemporaneously with listing the property for sale.
i.e. prepares the legal pack while the property is on the market
- Marketing the property for sale, conduct viewings & bidding.
- Prepare legal pack & drafts contracts.
- Pre-contract queries, signing of contracts, payment of contract deposit.
- Closing procedures: draw down of funds, closing the sale.
Background:
The “e” in e-conveyancing stands for “electronic”. Despite this, progressive solicitors who are trying to digitise the process, against all the odds, by emailing copies of title documents, are thwarted daily by the Law Society’s practice note that obliges them to send physical copies of title deeds to purchasing solicitors, if requested. So long as this practice note remains in place, electronic conveyancing is not possible. It should be removed immediately if there is a genuine appetite to move to e-conveyancing. So doing would send a clear signal of intent that the LSI is determined to progress the conveyancing process in Ireland.
Proposal:
Revoke the practice note requiring vendors’ solicitors to send physical copies of title deeds to purchasing solicitors in order to read the title.
Document & Data Gathering Measures
The vast bulk of the delays in conveyancing files relate to the inefficiencies associated with vendors’ solicitors having to gather data from a diverse plethora of sources. Most of this data is already digital and as such, with little effort, it could be made available to vendors’ solicitors instantly and automatically.
Background:
Solicitors regularly contact estate agents requesting them to send BER Certificates and Advisory Reports. The SEAI website requires the searcher to have the MPRN or BER number of the property in order to find a BER certificate. As the solicitor does not have this data, the database should be searchable by eircode.. Auctioneera publishes BER certificates and advisory reports for all its properties on its website. Other estate agents, Daft & MyHome should do likewise.
Proposal:
BER certificates & advisory reports should be searchable online by Eircode and furthermore available via API calls to the SEAI database. Solicitors should not have to contact estate agents for BER certificates. If an API is provided, technology providers could automatically fetch the BER certificate for the solicitor.
Background:
Every time a vendor’s solicitor is selling a registered property, they must manually log onto LandDirect.ie to order an up to date folio and file plan.
Proposal:
Facilitate automated ordering of folio and file plans via API. Technology providers such as Conveyance Tracker could automate folio and file plan ordering if an API was provided.
Process Measures
Background:
The Electronic Commerce Act 2000 and general condition 48 of the 2023 LSI contract present fantastic, currently untapped, opportunities for efficiencies in the process. While it is possible for solicitors to make use of electronic signatures to sign contracts for sale, with the digital version of the contract then becoming the original, almost no firms make use of this. This is because heretofore there was no quick and simple means of digitally exchanging contracts available to firms. As a result, they default to the familiar, but extremely inefficient process of having clients physically attend their office to sign contracts, declarations, loan offers etc.
Conveyance Tracker’s Digital Contract Exchange Module makes digitally exchanging contracts quick and easy. Both sides can sign within minutes of each other, instead of the more typical timeframe of a number of weeks, while contracts are posted and clients make appointments to attend office in person.
Proposal:
The Law Society of Ireland should issue a practice note advising transacting solicitors to utilise digital contract exchange technology, to eschew committing contracts to paper and relying on wet ink signatures.
Video demonstrating fully digital contract exchange:
Background:
Presently, closing searches are sent by the purchasing solicitor to the vendor’s solicitor. The vendor’s solicitor prints the searches, endorses his/her replies thereon with a pen, scans them and finally emails them back to the purchaser’s solicitor. Conveyance Tracker has fully digitised this process thereby eliminating the need to print or scan the replies.
Proposal:
Solicitors to adopt a fully digital closing search procedure.
Video demonstrating fully digital closing searches:
Background:
Some surveyors will check boundaries using a digital map, while others insist on a physical, paper map.
Proposal:
The SCSI should advise its members to carry out boundary checks with reference to digital maps.
Background:
Research conducted by the Government sponsored expert group on conveyancing highlighted the opacity of the process as one of the chief frustrations amongst the transacting parties. Not having a clear, real time understanding as to where the process stands, who needs to do what next and associated anticipated approximate timelines is the norm not the exception. Workflow platforms such as Conveyance Tracker bridge this deficit by lifting the veil that can otherwise cloak the process. Solicitors and their clients can digitally collaborate on the file and move it energetically towards closing, with the transacting party always fully apprised as to where the process stands in real time via their own online dashboard.
Proposal:
Solicitors to adopt platforms such as Conveyance Tracker.
Walk Measures
Walk measures are more involved than crawl measures. They typically take a number of weeks or months to implement and some require investment.
Policy Measures
Background:
Conveyancing transactions require the vendor to make a number of statutory declarations. By law, these must be signed in wet ink signature and witnessed by a commissioner for oaths or independent solicitor. The LSI recommendation to replace statutory declarations in the process with statements of truth that can be signed electronically and do not require witnessing by an independent solicitor or commissioner for oaths would yield substantial efficiency gains in the process.
Proposal:
Implement in full the Law Society recommendations outlined in this document.
Document & Data Gathering Measures
Background:
Solicitors need to write to local authorities to request them to send a letter confirming that roads and services abutting the property in sale have been taken in charge. The local authority, on receipt of this letter, checks their database and posts back the appropriate letter. This database should be made available online to solicitors to facilitate them to check this information in real time, without the need for a letter. Kilkenny County Council has already implemented this measure.
Proposal:
All local authorities to publish online interactive maps showing which roads and services have been taken in charge.
Background:
Throughout the course of a conveyance, solicitors must engage with the lending bank as well as the outgoing bank, where applicable. These interactions are often paper based and cumbersome. A simple interface to which solicitors could log-in to streamline and digitise these interactions would be a major step forward.
Proposal:
Irish banks to build a simple solicitor engagement interface to facilitate solicitors to:
- Submit & track the status of ATR requests.
- View redemption statements in real time.
- Receive & digitally sign loan packs and the solicitor’s legal pack.
- View any outstanding issues that may delay drawdown of funds.
- Requisition drawdown of funds.
- Receive e-discharges.
Background:
Currently vendors must log into their Revenue account, download the statement and email it to their solicitor, who in turn emails or posts this to the purchasing solicitor. Regularly, the wrong statement is sent to the vendor’s solicitor delaying matters unnecessarily. This statement should be available to solicitors, in real time, via API call based on the Eircode of the property.
Proposal:
Make LPT statements available in real time via API call to Revenue’s database.
Legislative Measures
Background:
Michael Walsh, Partner and Chair of Property at Byrne Wallace LLP, eloquently outlines the background to the current unnecessarily burdensome legal position here.
“Unauthorised development results in significant legal and commercial implications, including the need for protracted due diligence on every dealing with the land, thus increasing transaction timelines and costs. Queries extending back to 1964 (when the modern planning law system was established in Ireland) can be impossible to answer, as many planning authorities have not retained records going back that far. The writers argue that requiring this level of historical lookback, with the costs and time involved, serves no obvious societal purpose”
The Law Society has proposed the creation of a new class of development referred to as END (Existing Non-confrming development). This would include historic development that has not been subject to enforcement. Such development would not be a blemish on title.
Proposal:
Implement the Law Society’s recommendation to legislate for a new class of development referred to as END, as above.
Run Measures
Run measures are large-scale undertakings that will require a multi-month / multi-year commitment and substantial investment. These measures would have a transformative impact on the conveyancing process, if implemented. In order to bring to fruition, a multi-agency, government funded, full time implementation body would need to be formed.
Conveyance process optimisation in Ireland continues to suffer from a disjointed approach with many stakeholders pursuing “solo-runs” without engaging with each other. For example, IPAV’s Seller’s Legal Pack for Property Buyers is not supported by the Law Society. In this regard the bill has a “Hamlet without the Prince” feel to it. Real transformation will only be possible with formal cooperation amongst all stakeholders. So far, this hasn’t been forthcoming resulting in the current broken system.
Process Measures
Background:
The current system involves a lender that is taking a charge on a property, on foot of a mortgage, taking physical custody of the title deeds for that property. When this property is to be sold, the vendor’s solicitor requests these title deeds to be posted to him/her on accountable trust receipt. The solicitor makes copies of these title deeds and posts or emails them to the purchasing solicitor (see Measure 1 above). The originals cannot be released until a binding contract is in place. In advance of closing the sale, the originals are then posted to the purchaser’s solicitor. After the sale has closed, the purchaser’s solicitor prepares a certificate of title, incorporating the updated title deeds, and posts this to the lender’s bank for safe keeping, until the property is to be sold again. This is an astoundingly inefficient, paper based, anarchic process that takes months, the likes of which is just not seen in any other industry, all of which have long since digitised their processes.
It is quite standard for contracts to remain undrafted six weeks post sale agreed as the vendor’s solicitor is “waiting on the deeds.” During this period, the vendor’s solicitor, let alone their client or the purchasing solicitor or their client, has no visibility whatsoever as to whether the ATR request has been received or is being acted upon (see measure 10 above). By digitising title deeds, referred to as dematerialisation, they would be available to both sides’ solicitors the moment a sales advice note is issued.
Proposal:
The Irish Government should fund and task Tailte Éireann with becoming a centralised title deed management agency in Ireland. Every set of title deeds in the country would be shipped to a single, centralised facility. On arrival, the deeds would be scanned, tagged with an eircode then uploaded to secure servers. Once digitised, the paper deeds should be shredded. These digital deeds would be made available to solicitors via their Land Direct accounts.
Every time a property is transacted, the purchaser’s solicitor would upload any new title deeds with their Form 17 e.g. planning documentation for an extension to the property. Banks’ charges are recorded on folios now so the whole concept of holding physical title deeds in order to enforce their security is redundant.