Some DMRs seek discharge from onerous duties
This year’s Law Society Property Law Conference has heard that some professionals appointed as DMRs (decision-making representatives) have sought to be discharged, finding it difficult to manage the responsibilities.
Solicitor Margaret Walsh (partner, Sheil Solicitors LLP) said that some DMRs were finding it a very difficult landscape to negotiate.
“Often it is difficult to imagine how [hard] these things have been until you’re involved in it,” said Walsh.
Written agreements, statements of capacity, and witnessed signatures were essential for effective DMR agreements, Walsh explained at the conference (15 October).
Registered orders were particularly important for conveyancing transactions, she said.
She advised attendees to always obtain a certified copy of the decision-making agreement from the Decision Support Service (DSS), rather than relying on a copy from the solicitor’s file.
Status of order
The DSS register could also be searched at the closing stage to confirm the status of the decision-making order, Walsh said.
These expire three years after commencement, unless specified otherwise.
The Land Registry practice note on applications involving decision-making assistance or representatives and co-decision-making should also be reviewed by practitioners, Walsh suggested.
The DMR’s decisions are set out by court order and may be reviewed if the supported person’s capacity changes.
When acting for a vendor, it is important to establish if there is a DMR order in place and to ensure that the contract and other documentation are executed by the DMR.
The DMR will sign documentation, and the supported person will not be a party to the signature.
Special conditions
While the DSS may act on foot of the order before it is registered, registration is required for conveyancing transactions, and special conditions must be included in the contract for sale to reflect the order.
Ken Egan, a solicitor with Tailte Éireann, told the conference that an asbestos problem in a Land Registry storage facility was causing delays in issuing some certified copies of instruments.
Purchasers might be open to accepting secondary evidence of an instrument, he said, subject to high standards.
There had been some focus on Land Registry rejection policies, Egan said, with webinars an effective tool for practitioners in this sphere.
A detailed document was expected by year-end, with the help of the Law Society Conveyancing Committee, he added.
The body was generally very responsive to queries and open to admitting errors, he commented.
The Land Registry had also begun responding to queries by email, which was seen as a positive step forward, Egan said.
Suzanne Bainton (partner, Liston & Company) addressed the challenges faced with managing agents in multi-unit developments (MUDs).
Key issues are high costs for queries, the need for undertakings, and difficulties in obtaining detailed information.
Practice notes issued this year aimed to streamline processes for second-hand properties, she said.
Undertakings
Solicitors often requested undertakings for details about purchasers and vendors that managing agents might not have, the event heard.
Repeated fees for queries, and unhelpful, low-quality answers, had also been factors, Bainton said.
Managing companies are obliged to provide annual reports under section 17 of the MUD Act, with the goal of reducing unnecessary queries and improved information accessibility.
These reports should include statements of income and expenditure, assets and liabilities, and planned outgoings.
The report should also include the insured value of the development.
Fire-safety issues
Fire-safety issues are a significant concern, especially for buyers who may face substantial repair bills.
Paying service charges promptly was also important and clients should be told this, Bainton said.
The August practice note focused on fire safety and substantial works, and a client memorandum on surveys provides guidance on why surveys are important and what they should contain.
It also recommends asking agents if a fire audit has been conducted, since fire safety is a major concern for a purchaser in a MUD.
Clients might also come back and say that their solicitors did not warn them about certain safety issues, the event heard.