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The Conveyancing Committee had been in ongoing correspondence with the Legal Services Division of the Department of Agriculture and Food (and previously the Chief State Solicitor’s Office) concerning the format of documentation requested by the department and to be given by solicitors on behalf of clients in relation to forestry grants obtained by clients from the department.

Unfortunately, the correspondence has not resulted in any agreement. Notwithstanding this, the department has gone ahead and has produced documentation that it has put into use and that is furnished to applicants for forestry grants to be completed by their solicitors.

The committee is not satisfied with the documentation in question. Furthermore, it believes that it exposes any solicitor who signs such documentation to potential risks. It is the view of the committee that such documentation should not be signed in its present format.

Practitioners should please note:
1) The department requests an undertaking to furnish evidence of title. No such undertaking should be given. If the land is registered in the Land Registry, a copy folio should be furnished. If the land is registered in the Registry of Deeds, a copy of the last assurance to the grant recipient should be furnished. An undertaking should not be given, because it is open ended and could impose liabilities on a solicitor that cannot ever be satisfied.
2) The documentation asks the solicitor to certify that “all the lands indicated on the attached map which I have signed and stamped with boundaries marked in red are registered in folio number...” A solicitor is not qualified or competent to certify anything in relation to maps or boundaries. A solicitor can only furnish a folio or deed and certify that the applicant for the grant is one and the same person as the registered owner of the folio or the grantee in the deed.
3) The solicitor is asked to certify that the lands are not subject to turbary or grazing rights or rights of way. A solicitor is not in a position to certify that. A statutory declaration from the grant applicant can so confirm if that is the case, but it is neither proper nor prudent conveyancing practice for a solicitor to certify it. The subject matter of rights of way, grazing rights or turbary rights may be registered on and be apparent from the folio or they may appear on the Registry of Deeds title. On the other hand, they may not appear on title, but they may still exist. Establishing whether they exist or not requires enquiry and investigation, and to certify the position without undertaking such investigation would be imprudent on the part of a solicitor.
4) The documentation goes on to ask the solicitor to confirm that professional indemnity insurance is held. It is in all ways expressed as if it was a certificate of title transaction. Great care must be taken to ensure that the impression is not given that the property has a “good marketable title”. Great care must be taken to ensure that no impression is given that the property, for instance, “complies with planning or complies with environmental legislation or regulation”. The view of the committee is that a solicitor should furnish the documents to evidence the fact that the applicant for the grant is the registered owner of the folio or the holder of the lowest interest in the land under a Registry of Deeds title, but nothing further. Such documents evidencing the title of the grant applicant should be furnished to the department contemporaneously with the grant documentation, and no undertakings should be given to furnish evidence of title at a later date.

Unfortunately, therefore, solicitors must be cautioned against completing the documentation in the form being circulated by the department at present.