We act on hundreds of purchases of property in any year. In the purchase of property we conduct what is known as an investigation of title. The role of the solicitor is to ensure that you obtain a good marketable title. What that means is that our job is to ensure that when you become the owner of the property that you can sell your property with no difficulty if you find a buyer. When we trained as solicitors we were taught during our lecture series on property law that “the day you buy is the day you sell”. The term good marketable title is a phrase used by solicitors which sets the standard by which property must be owned by a purchaser.

We are often asked the question do I need an engineer to buy a property.  . It should also be noted that in buying a property the principles of “buyer beware” (caveator emptor) applies. This means that if a buyer does not properly identify issues with the property prior to purchase then that is a matter that they will have to live with. It is an obligation of the buyer to investigate all issues regarding the property. There is no obligation on a seller to highlight any defects with title or the nature of the quality of the property.   In our view we think it would be foolhardy to engage in a long term financial commitment without having conducted a full structural survey of the property and also having an engineer investigate legal matters.

But what legal matters should an engineer focus on as distinct from the structural side of a property?

As mentioned above, when buying a property you must obtain “good marketable title”.  Good marketable title contains two distinct elements namely (a) ownership and (b) enjoyment. It tends to be the case when investigating title that the question of ownership is dealt with relatively easily. This is because particularly outside of large urban areas, title is registered in the Land Registry and so it can be relatively apparent who is the registered owner. That is not to say that the issue of ownership should not be fully investigated but we find that in the vast majority of cases the person who wishes to sell their property tends to be the registered owner of the property they are selling.

However, a more contentious area relates to the question of use and enjoyment of a property. To be able to use and enjoy your property certain factors must exist:-

• You must have access to your property;
• The property must be adequately serviced with water, sewage and electricity;
• The location of the property must match that which is registered in the Land Registry; and
• the property must be constructed in accordance with any planning permission obtained.

These four elements are an essential aspect of enjoyment of a property and it is these elements that we require an engineer to investigate. We do not have the skills, expertise or training to be able to investigate these matters fully and that is why we rely on the services of a properly qualified engineer or architect to investigate these matters for us. It is essential in all cases that an expert would be appointed to investigate these matters. This is particularly so where the purchase is being funded with money from a lending institution. In those cases the solicitor acting for you to buy the property must certify to the lending institution that title is in order.  The solicitor has a dual role in acting for you and providing comfort to your lending institution.  Information from an engineer is essential for this.

Buying a property is a significant financial investment.  Its often your single most significant legal event.  You must proceed with caution and obtain full professional information before you proceed.  If you have any further queries on the purchase of a property please contact Colm Kelly at ckelly@hcalaw.ie