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The Conveyancing Committee has been asked to provide guidance on what role, if any, solicitors should take in relation to submission of information to the Property Services Regulatory Authority for inclusion in the public database for commercial leases (the ‘commercial leases database’) that the authority is to establish, pursuant to section 87 of the Property Services (Regulation) Act 2011.

The tenant under a commercial lease granted on or after 3 April 2012, or a person authorised in writing by the tenant, is required to submit particulars in specified forms to the authority at three separate points in the life of the lease: (a) on creation of the lease, (b) on rent review and (c) when the tenant ceases to have an interest in the lease, in other words, on assignment, termination or expiry of the lease. The obligation to disclose information to the authority overrides any agreements relating to confidentiality of commercial terms.

It is likely that tenant clients will ask their solicitors to submit the required forms to the authority on their behalf. If a solicitor accepts written authorisation to act on his client’s behalf for this purpose, he becomes subject to the primary obligation to comply with the statutory obligations to submit the particulars to the authority in the specified form and within the relevant period.

A person who, without reasonable excuse, contravenes the provisions requiring submission of particulars to the authority is guilty of an offence and liable on summary conviction to a class A fine. Any person who makes any false or misleading statement or gives false or misleading information to the authority is guilty of an offence and liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

Forms

The forms to be submitted to the Property Services Regulatory Authority on rent review and on cesser of tenant’s interest in the lease have not yet been published. The form to be submitted on creation of a lease is now available on www.npsra.ie. The extensive list of particulars required to complete the form includes information that a solicitor will not know and his client may not know. A solicitor will be relying on third parties, such as the landlord’s agent, to provide these particulars.

Risks for solicitors

Solicitors who accept their clients’ authorisation to make the submissions to the authority on their behalf could expose themselves to the following risks:

• If the particulars are not forthcoming from the relevant third parties, a solicitor may fail to meet the deadline for compliance with the statutory obligations and become guilty of an offence,
• If the information received from third parties is incorrect, a solicitor could commit an offence by providing false or misleading information to the authority (although it may be possible to argue a defence of reasonable excuse where the solicitor can demonstrate the exercise of due care in obtaining the information),
• If the authorisation from the client is expressed in general or ambiguous terms, it could be interpreted as including authorisation to submit the required information on rent review and cesser of interest in addition to the information to be submitted on creation of lease. A solicitor who acts for a client taking a lease may not always be involved subsequently in the rent review process (particularly if the parties agree to maintain rent at current levels) and/or when their client’s interest under the lease ceases. In such circumstances, the solicitor would not be aware that the obligation to submit information to the authority has been triggered and could be prosecuted for failing to make the submission within the relevant timeframe, drawn into any prosecution of the client for failure to make the submissions, and/or face a negligence claim from the client.

Solicitors should not expose themselves to unnecessary and inappropriate risks by routinely accepting authorisation to make submissions of particulars to the authority on behalf of their clients. The Conveyancing Committee recommends that practitioners inform clients of their obligations as tenants under the act and the time limits that apply for submission of information to the authority.

There may be particular circumstances in which practitioners wish to accept their clients’ written authorisation to submit the prescribed forms to the authority. Before accepting such responsibility, practitioners should satisfy themselves that accurate information as required to complete the prescribed forms will be forthcoming within the time limits required for complying with the act. The solicitor should ensure that the client authorisation clearly states which lease or leases it relates to and whether the authorisation relates to the form to be submitted on creation of the lease only, or also extends to submission of particulars following each rent review and on cessation of the tenant’s interest in the lease.