Overhauling Conveyancing in Ireland: Is A Completely Electronic Process Feasible?

• Author: Bernard Long
• Position: BCL (Law & Irish), University College Cork
• Pages: 26-37

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OVERHAULING CONVEYANCING IN IRELAND: IS A COMPLETELY

ELECTRONIC PROCESS FEASIBLE?

Bernard Long*

A INTRODUCTION

The present system of conveyancing or transferring an interest in property from one

individual or corporate entity to another encompasses three main constituent phases. The first

is the pre-contract phase, which typically involves the finding of a purchaser, the engagement

of a solicitor, the issuing of draft contracts for sale and the exchange of pre-contract

enquiries. The second phase comprises of the signing and exchange of contracts, together

with closing of the sale. Finally, the third, post-contractual phase involves the registration of

the transfer with the relevant public body, and in certain cases, the furnishing of a Certificate

of Title to the mortgagor bank.1 The final stage is arguably the most crucial considering that a

transfer is of little legal value until the property has been officially registered in the name of

the purchaser, even though the creation of a contract may confer upon the purchaser an

equitable interest in the property.2 Registration has been administered by the Registry of

Deeds and Land Registry since 1707 and 1891, both of which have come under the remit of

the Property Registration Authority (PRA) since the enactment of the Registration of Deeds

and Title Act 2006.3 This development in conveyancing law was followed by the pivotal

Land and Conveyancing Law Reform Act 2009. The 2009 Act made many substantial

changes to property law in Ireland by abolishing the historical fee farm grant system in

favour of a streamlined system of interests in property and by overhauling rules regarding co-

ownership and prescription of easements.

This modernisation of Irish conveyancing has coincided with the emergence of a pertinent

new area of law: electronic commerce. Electronic contracts have risen in prevalence in recent

times, considering the myriad industries which now rely heavily on electronic commerce as a

means of conducting business, for example, internet shopping and auction sites such as eBay

or the availability of airline tickets online. The significance of electronic commerce in the

modern commercial landscape has led to international acknowledgement of the law of

electronic commerce. For example, the United Nations Commission on International Trade

Law (UNCITRAL)4 and the EU Electronic Commerce Directive 2000/31/EC,5 which was

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*BCL (Law & Irish), University College Cork.

1 For a more detailed outline of the steps of a conveyance, see Law Society of Ireland, Conveyancing, (5th edn,

Oxford University Press 2011) 22.

2 John Mee and Robert Pe arce, Land Law (3rd edn, Thomson Reuters/Round Hall 2011) 133.

3 Registration of Deeds and Title Act 2006 s 10.

4 The United Nations Comm ission on International Trade L aw (UNCITRAL), Model Law on Electronic

Commerce (1996).

5 Council Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in

particular electronic commerce, in the Internal Market [2000] OJ L 178/01.