In Practice

DSBA PROPERTY COMMITTEE – LOOKING BACK AND LOOKING AHEAD

With another difficult year coming to a close, we have asked the members of the DSBA Property Law Committee to comment on either some of their highlights over the past year or issues to watch out for in 2022. We hope you enjoy the selection below.

Name Topic

ackie Buckley We welcome the introduction of the Companies (Rescue Process for Small and Micro Companies) Act 2021 which was enacted on 22 uly 2021. We expect it to be commenced shortly. t is designed to be a more suitable rescue process for small and micro companies which currently account for more than 9 of Companies. The Process Advisor prepares a Rescue Plan after interacting with creditors. The Act also allows for the repudiation of onerous contracts, including Leases. As Tenants in many sectors remain in a precarious position with outstanding rent arrears, once commenced, the legislation will provide a way forward for many Companies. Ethna Ryan The Land and Conveyancing Bill 2021, signed into law on 26th of ovember 2021, has repealed sections 33 to 39 of the Land and Conveyancing Law Reform Act 2009. The repealed sections had imposed an obligation on the user of an undocumented easement or profit prendre to register the right either by way of Court order or through the Property Registration authority by the 30th of ovember 2021 to avoid losing any rights acquired by long use. The establishment of such rights will, once the bill is enacted, revert to the law that applied prior to 2009 where such rights were in the main, verified by way of statutory declaration. Special arrangements have been made in respect of State-owned land with the prescription period being 30 years against State-owned land and 60 years where the land is foreshore. The Bill is welcomed to avoid the increase in litigation the current legislation deadline would have undoubtedly caused on our already pressured courts services. Marissa O’ eeffe LPT The inance (Local Property Tax) (Amendment) Act 2021 introduced certain changes in relation to LPT that is due in 2022. These apply to property valued on 1 ovember 2021. The revaluation of homes had been deferred on many occasions resulting in one valuation period from 2013-2021. The new valuation period is due to apply to LPT for 2022-2025. omeowners were obliged to submit a self-assessed valuation of their property and submit an LPT return by 7 ovember 2021. nlike PPR charges, under s.124 of the inance (Local Property Tax) Act 2012, there is no time limit on the charge.

NPPR

The Local overnment (Charges) Act 2009 affected and continues to affect the sale of non-principal private residences ( PPR) in respect of the PPR charge which applied from 31 uly 2009 to 31 March 2013. Whilst any unpaid PPR is a charge on property under the Act, however, the Act also provided for the expiration of the charge after 12 years. The Department of ousing, Local overnment and eritage advised that there will be a phased expiry of PPR charges, late payment fees and the charge on property. rom 1 August 2021, the amount due for same will reduce every year until the liability and charge on property expires completely on 1 April 2025. The 2009 Act is due to be repealed on 31 March 2025. Roisin Bennett iven the ongoing challenges that Covid-19 causes for our business and personal lives, we would like to remind practitioners that the Law Society has a range of wellness resources available in the wellbeing hub on www.lawsociety.ie. One such resource is LegalMind which is an independent and low cost mental health support available for Law Society members, their partners and dependants. The service is completely confidential and available 24 7 365 days per year. To access this service, designed just for solicitors, call LegalMind any time on their freephone number 1 00 1 41 77 or send an SMS WhatsApp to 0 73690010 (standard rates apply) and receive a text back that day from one of LegalMind’s case managers. Marcus ennedy ESG ES or to give its full name, Environmental, Social and Corporate overnance, is a prevalent theme across the real estate market. Most investors and tenants now have ES policy documents which inform the nature of the property they transact on. This can translate through to an outright obligation on a developer to deliver, for example, minimum standards of BERs, LEED (Leadership in Energy and Environmental Design) or BREEAM (Building Research Establishment Environmental Assessment Method) certification. n managed estates, it has become a feature for a landlord management company to implement Energy Management Plans and maintain environmental performance data with the cost being recovered, in the usual manner, through a service charge. Commercial leases can include an entitlement for a landlord to refuse consent to tenant alterations where the works would be of such a nature as to adversely affect the environmental performance of the premises Elaine iven Force Majeure/Covid clauses The accepted meaning of force majeure’ in contract law is a clause that removes liability for events that could not be anticipated which prevent parties from fulfilling obligations. Practitioners should note that pandemics may not be regarded as unforeseen natural and unavoidable catastrophes following the impact that the Coronavirus has had. The implications of force majeure clauses need careful consideration. We have seen a narrowing and more restrictive drafting and interpretation of force majeure clauses. All contracts and leases should now contain a “Covid” clause to limit liability in the event of government restrictions being in place which prevent a party from fulfilling their contractual obligation.

HIGH COURT PROCEDURE UPDATE

Infant Rulings

The central office in the our Courts has requested that all infant rulings proceed with the applicant solicitor filing the Ruling papers exhibiting original exhibits only. t has also requested that all booklets be paginated. Judgments in Default

As of the 13th of ovember 2021 S 490 2021 rules of the superior courts, these rules amend the rules of the superior courts by the substitution of orders 13,20,21 and 27. and the amendment of order 23 rule 6 and order 63 rule 1 to improve procedures and applications to the igh Court for orders in default of defence, statement of claim and appearance and to standardise time limits for delivery of certain documents. n particular these rules provide for the following that judgment be entered in a motion for judgment in default of defence or default of statement of claim except where justice requires an extension of time and where such an extension is granted, the court shall make an “unless order” , thus requiring one court hearing only. Eight weeks are required for delivery of a statement of claim and delivery of defence in all cases. The requirement is now of a 2 -day warning letter instead of 21 days, to the bringing of an application for judgment in default including judgment in default of appearance and the plaintiff is required to serve the notice of motion on the defendant in all applications for judgment in default of appearance. Barra O Cochlain, DSBA Litigation Committee

Stuart Gilhooly SC is a partner at H.J. Ward & Co. Solicitors. He is a former President of the DSBA and former President of the Law Society

We already know the effect of scales on access to justice looks like. The District Court is a living, breathing example of Access what not to do to Justice Ticking Timebomb

It’s obviously an exaggeration to say these are wartime conditions. But sometimes it feels that way. No media, whether it be radio, TV or social seem capable of letting a day past without reminding us that Covid still rules the world. And while this is undoubtedly true, it does tend to mean that other social, legal and economic problems have to take a back seat.

One of the most pervasive issues is access to justice. It’s a lovely sunny concept that everyone seems to favour. No politician, for instance, is ever going to produce a manifesto with less access at its core. But it’s a little like poverty, homelessness and climate change in that regard, we all know what side we are on b ut the nettle always seems to elude our grasp.

It’s been a problem as long as this column is practising but the leak that was once a trickle is now threatening to become a torrent. A perfect storm is coming for the consumer and while much of it is down to a lack of investment in the courts system, the rest may well be selfin icted by an over- ealous legislature.

But all is not lost. There is a way to fix this hole. If there is a will.

Let’s start with the effects of underinvestment in the courts system. Like the health service, justice has been provided with just enough to keep the show on the road for decades. No foresight, no planning for disasters such as the current pandemic. The result is the fewest number of judges per capita in the OECD. In this publication, over the summer, the President of the High Court correctly pointed to the crisis in the number of judges available to her and how it was the individual litigant, usually underfunded, who suffered.

But the crisis in the High Court is only the start of it. The Circuit Court resourcing, particularly in Dublin, has been exposed by the various lockdowns. This was an accident waiting to happen. They are chronically understaffed. They need more judges, County registrars, courtrooms and court staff just to cope with the current backlog.

To be crystal clear, this is not the fault of the Circuit court judges, registrars or staff. They can only work with what they have and the circumstances which have been presented to them. Dublin, for instance, is huge. It needs more of everything, judges, registrars and staff. o doubt, other large centres have the same problem. There is only so much that can be done with loaves and fishes.

And it’s getting worse before it gets better. Absolutely no thought appears to have been given to the effects the new Personal Injuries Guidelines will have on the Circuit and District Courts. It is likely that the Circuit will see an increase of approximately 50 of its P work and District Courts probably around 25 . They are simply not equipped for this. In the rush to placate every whim of the insurance industry, we have ensured that many claimants will now wait at least twice as long to get a case to trial or more likely will have to accept a lower offer to end the torture.

Of course, this may well be part of the plan and no doubt it is further reason for the insurers to crack open the Champagne, but even they will get sick of not getting cases off the books for those pesky Plaintiffs who want a fair offer or where the case has to run for liability or other reasons.