Year: 2018

The prospect of buying a house can seem complicated. We have outlined the process of buying the below, with the aim of providing a simplified guide to the process. It must be noted however, that each transaction will have its own nuances and peculiarities to be addressed. The process below involves the purchase with a mortgage, via private treaty.

•  Identify and secure the right property at the right price and pay booking deposit to the auctioneer. This is a holding deposit only and a gesture of good faith. It should mean the property will not be actively marketed pending your opportunity to carry out due diligence in respect of the legals, survey etc.  The agreement will not be binding until such time as a contract is signed by you and the vendor.
• Instruct a solicitor to act on your behalf and ensure it is someone you can have confidence in and relate to.  Your solicitor should provide a budget for the purchase to include fees, costs and outlays (e.g., stamp duty, land registry fees) which you will incur in respect of proceeding to purchase this property.
• Organise a survey of the property to be carried out by a suitably qualified engineer with appropriate professional indemnity insurance.  The engineer should also be asked to check the boundaries and, in particular, that the boundaries on the ground are accurately reflected in the title map.  The engineer should also be asked to carry out a planning search and advise you of any relevant matters prior to committing to contract.
• Secure a formal loan sanction and be aware of the terms of which the bank will lend you the funds to complete your purchase. Usual conditions include life cover, fire cover/ home insurance valuation, etc
• Your solicitor will carry out due diligence once in receipt of contract from the vendor’s solicitor.  The due diligence will include the following and a report is to be provided to you as the purchaser; (a) investigate title and whether leasehold or freehold and consequences of same; (b) advise on planning in conjunction with the surveyor’s report; (c) investigate position regarding access and services (i.e. water/sewer) at property including any wayleaves affecting; (d) review the position in relation to property taxes to include local property tax (LPT) and non-principal private residence (NPPR) charges; (e) review the special conditions in the contract for sale and advise the purchaser in respect thereof.
• Once you are satisfied with all of the above, only then will you be in a position to commit to the contract.  This process usually takes around 4 weeks from the payment of the booking deposit.  On signing the contract, a 10% deposit is payable less any booking deposit already paid.  The vendor then countersigns the contract at which point it becomes binding and completion date is agreed which is usually 2 – 3 weeks thereafter.
• Your solicitor attends to the drawdown of loan funds and provides a statement of account for you to provide the balance, including stamp duties, land registry fees and costs.
• On completion, your solicitor pays over the balance of funds in return for the title deeds and the keys.  You should attend to transferring of utilities, e.g. organising your electricity/gas etc.
• Your solicitor will attend to stamping and registration of title and mortgage. Once the registration process is completed, the deeds will be returned to the bank who will hold the deeds during the term of the loan.

At J.W. O’Donovan, we have an extensive property practice and act for a range of clients in the sector – to include: developers, banks, commercial landlords, and private clients. It is this wide range of practice within the property sector that allows us to tailor our advices to suit the particular needs of each and every client.

For more, please contact a member of our property team by email to mail@jwod.ie or via telephone on 021-7300200.

J.W. O’Donovan recently advised Apisprotect Limited on its funding round of €1.5 million from a consortium of private equity funds and Enterprise Ireland.  Apisprotect has developed a system to allow beekeepers in monitoring bee colony’s using the internet of things and machine learning to provide feedback assisting in maintaining colony health. The company will use the proceeds of the round to fund its expansion into international markets. Further detail can be found at http://www.apisprotect.com/news/apisprotect-news.html

Contact John Fuller, Partner, Tel +353 21 7300 200, Email jfuller@jwod.ie

Members from ADVOC, the leading international network of independent law firms, enjoyed a taste of Cork culture as they met in the city last weekend for the Advoc Europe Open Board Meeting, an international legal conference, which ran from the 21^st – 23^rd September and was hosted by J.W. O’Donovan. The conference was attended by ADVOC members from England, Cyprus, Hungary, The Netherlands, Germany, France, Spain, Italy and Switzerland.

The ADVOC network, founded in 1990 and headquartered in London, facilitates business development, support services, and networking among its 93 members, which hail from 72 countries worldwide. J.W. O’Donovan was the first Irish law firm to join the network in 1994.

Jerome O’Sullivan of J.W. O’Donovan commented,

“A great benefit of being part of such a diverse and wide-ranging network of people and knowledge is that it has enabled us access to global legal support from firms that are leaders in their jurisdiction. In effect, it creates a virtual law firm of over 5,500 lawyers. Having access to that network and level of expertise has been invaluable for us as a firm.”

The conference, which opened on Friday night, also coincided with Culture Night, the national celebration of culture held in cities and town around the country.

Jerome commented,

“Not only were we delighted to host this year’s event in our fantastic city, but that it coincided with our annual celebration of Cork Culture was fortuitous coincidence. It was a privilege and a pleasure to have the opportunity to show our member delegates just what Cork City has to offer, in terms of the arts, food, entertainment and atmosphere.”

The conference continued on Saturday morning with meetings for delegates in the Imperial Hotel on South Mall, before moving onto visits of some of Cork’s main attractions including Blarney Castle and a walking tour of the city. The main conference dinner took place in the Crawford Art Gallery.

“The feedback from delegates of this year’s conference was very positive, particularly in response to Cork’s cultural and historical offering. We wanted our European partners to enjoy the city at its best, to take a stroll around after dinner in the evenings and soak up the friendly, warm atmosphere that Cork is known for.”

Jerome O’Sullivan Managing Partner at J.W O’Donovan Solicitors welcoming Garry Mackey Chairman of ADVOC.

Have you Filed your Annual Returns?
There can be very costly consequences both for a company and for directors of a company that fail to file their annual returns on time. The Companies Registration Office (CRO) is the body charged with enforcing compliance with the Companies Act 2014 and it takes the matter of filing annual returns very seriously. The financial consequences for failing to file on time include late filing fees and penalties, on the spot fines and the loss of audit exemption for a company’s accounts. In some situations non-compliance may eventually result in the striking-off of the company and the criminal prosecution of companies and of directors.

The Obligation to File Annual Returns
Section 343 of the Companies Act 2014 states the following:
S343 (2)
Subject to the provisions of this section, a company shall deliver to the Registrar an annual return in accordance with subsection (4) not later than 28 days after the annual return date of the company.

S343 (3)
However, if the annual return is made up to an earlier date than the company’s annual return date, it shall be so delivered not later than 28 days after that earlier date.

S343 (4)
An annual return of a company shall—
(a) be in the prescribed form and contain the prescribed information, and
(b) be made up to a date that is not later than its annual return date,
except that the first annual return falling to be made by a company after it is incorporated shall be made up to the date that is its first annual return date.

So what are the Possible Penalties for Late Filing?

1. Late filing fees
Annual returns which are filed late with the CRO incur a late filing penalty of €100 with effect from the expiry of the company’s filing deadline, with a daily penalty of €3 accruing thereafter, up to a maximum of €1,200 per return.

2. On the Spot fines
The registrar may issue on the spot fines which must be paid within 21 days.

3. Loss of Audit Exemption
Lost of an Audit Exemption will attach to the defaulting company’s accounts for two years which is sure to mean an unwelcome increase in costs for the company.

4. Involuntary Strike-Off Proceedings
In more severe cases, the CRO may decide to bring proceedings to strike-off the offending company.

Criminal Prosecution & Disqualification

Section 343 of the Companies Act 2014 states that companies and directors of companies may be prosecuted for failure to file an annual return. A director who has received three such convictions may be disqualified from acting as director, or having any involvement in the management, of any company.
The Companies Registration Office (CRO) justifies the seriousness of its approach in the following terms:
‘Incorporating a company and availing of limited liability brings with it serious legal obligations, one of which is the filing of prompt and accurate annual returns with the CRO. Failure to file an annual return is a serious matter, the company and any of its officers who are in default shall be guilty of a criminal offence.’

Section 343 (5) – District Court Application to Extend Time
Up until recently the only recourse available was to proceed with a very expensive High Court application. Thankfully, things have changed. Section 343 (5) of the Companies Act 2014 introduced an application to extend time to file annual returns to take place in the District Court where the legal costs for the company are very much reduced.

S343 (5)
The court, on an application made (on notice to the Registrar) by a company, may, if it is satisfied that it would be just to do so, make an order extending the time for the purposes of subsection (2) or (3) in which the annual return of the company in relation to a particular period may be delivered to the Registrar; only one such order may be made as respects the particular period to which the return concerned of the company relates.

Requirements
The CRO must be given at least 21 days’ notice of the application and the court date and an Affidavit must be sworn by one of the Officers of the company explaining the reason as to why the accounts were not filed on time. On receipt of the notice and Affidavit, the CRO will respond with a letter either consenting or objecting to the application. If the CRO are objecting, then a representative of the CRO may attend at court. In such a scenario the District Court Judge may hear evidence from both the CRO and the company representative before deciding whether or not to grant the application to allow for an extension of time. If the application is successful then the Annual Returns will need to be filed within a period (usually 28 days) of the court date. Once this is done on time, all of the above penalties are avoided.

From more information please contact Neal Horgan.

Email: nhorgan@jwod.ie
Tel No: +353 21 7300200

Practice Areas:

• Civil and Commercial Litigation
• Debt Collection
• Personal Injuries
• Licensing
• Sports Law

 

John Fuller, solicitor in our Corporate and Commercial Department, has recently published an article setting out a seven step plan to assist in GDPR compliance.  The full article as published on BusinessandFinance.com can be accessed through the link below.

Seven Step Project Plan to achieve GDPR compliance

The deadline for implementation of the new rules is very fast approaching and we would advise everyone who has not started their planning and compliance process to start now.  If you need advice or assistance in relation to your own GDPR compliance plans please contact us.

The Mediation Act 2017 (“the Act”) commenced into law on 1 January 2018.

What does the Act seek to achieve?

Mediation has long since been used as a mechanism for dispute resolution within the Irish jurisdiction and the Act contains provisions for a statutory framework to promote and regulate the resolution of disputes through mediation.

The Act introduces a new obligation on solicitors, prior to the issue of proceedings, to advise their clients to consider mediation as a means of resolving their dispute and to provide their client with general information in relation to mediation services, including names of individuals who provide mediation services.

The obligation will apply to all litigation disputes, aside from a number of specific areas set out in the Act including, for example, certain employment law disputes, certain taxation matters and cases against the State concerning breach of fundamental rights.

The underlying objective of the Act is to promote mediation as a viable, effective and efficient alternative to court proceedings, thereby reducing legal costs, speeding up the resolution of disputes and reducing the stress and uncertainty which regularly accompanies court proceedings.

What is Mediation?

The Act defines mediation as “a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute”.

 The process is entirely consensual and the Act provides that participation “shall be voluntary at all times”. Further once a party has engaged in the process, he/she may withdraw at any time. A mediator’s fee may not be contingent on the outcome of mediation.

Prior to commencement of mediation, the mediator is obliged to:

• ensure that he/she does not have an actual or potential conflict of interest;
• furnish the parties details of his/her qualifications and with a copy of any Code of Practice published       and approved under the Act to which he/she subscribes.

Throughout the mediation process the mediator is obliged to:

• act with impartiality and integrity and to “treat the parties fairly”.
• complete the mediation expeditiously; and
• ensure that the parties are aware of their rights to obtain independent advice (including legal                 advice) prior to signing any mediation settlement.

Confidentiality is dealt with in particular by the Act, and it provides that all communications and all records and notes relating to the mediation “shall be confidential and shall not be disclosed in any proceedings before a Court or otherwise”. The foregoing does not apply to documents where the disclosure might be necessary for example in the enforcement of a mediation settlement.

Limitation periods

The Act extends limitation periods by the period commencing on the day on which the agreement to mediate is signed (presumably meaning the date on which all parties have executed) and ending on the day which is thirty days after either a mediation settlement is executed or the mediation is terminated. The mediator is obliged to inform the parties in writing of the date on which the mediation ends.

Legal proceedings

The Act promotes the use of mediation as an alternative means of dispute resolution to court proceedings.

In all cases,  prior to issue of the proceedings,  a Statutory Declaration must be made by the solicitor evidencing that the solicitor has performed the obligations imposed under the Act and where such Statutory Declaration has not been completed, the Court “shall adjourn the proceedings” pending compliance. Certain legislation governing children and Judicial Separation/Divorce are excluded from this provision.

Court

Part 4 of the Act deals with the role of the Court in mediation. Section 16 provides that a Court may, on the application of a party or on its own motion, invite the parties to consider mediation and provide the parties with information about the benefits of mediation.

Following an invitation by the Court where the parties decide to engage in mediation the Court may:

• adjourn the proceedings;
• make an Order extending the time for compliance by a party with Rules of Court or with any Order         of the Court; or
• make such other Order or direction as is necessary to facilitate the effective use of Mediation.

These statutory rights are conferred without prejudice to any other discretionary power which the Court may exercise with a view to facilitating the resolution of a dispute.

Section 17 provides that where an invitation by the Court to the parties under Section 16 has occurred, the mediator must prepare and file with the Court a written report setting out why the mediation did not take place, or where the mediation took place a statement as to whether or not a mediation settlement was reached and if the mediation settlement has been reached on all or some only of the matters a statement of the terms of the mediation settlement. The mediator is obliged to furnish such a report to the parties at least seven days prior to its filing.

This is a most curious provision and conflicts with the confidential nature of mediation. Perhaps the message to be taken from this part of the Act is that the parties themselves engage in the process without intervention by the Court under Section 16.

Enforcement

With regard to enforcement, the Act provides that a mediation settlement “shall have effect as a contract between the parties to the settlement” save where it is expressly stated to have no legal force until incorporated into a formal agreement. This of course does no more than recognise the position of all compromises in so far as they are contractual in nature.

Mediator’s fees

The Act provides that the fees and costs of the mediation shall be reasonable and proportionate to the importance and complexity of the issues at stake and to the amount of work carried out by the mediator.

In awarding costs in circumstances where the Court invited the parties to consider mediation, the Court may take into account factors including any unreasonable refusal or failure by a party to consider/attend mediation following an invitation to do so under Section 16(1).

Comment

The Act is a welcome development in the area of dispute resolution. Mediation has been successfully used for dispute resolution for many years in Ireland and has become increasingly common in recent years. The Act reinforces and supports the process.  It preserves the core aspects of mediation a confidential, facilitative and voluntary process in which parties attempt to reach a mutually acceptable agreement.

 

 

 

 

 

Cormac O’Hanlon

Partner

Cormac has practised throughout his career in the fields of commercial law, litigation and dispute resolution. He is former chairman of the Business Law Committee of the Law Society and a former President of the Southern Law Association. Cormac is a CEDR Accredited Mediator and a member of the New York Bar Association.

Email: cohanlon@jwod.ie

Phone: +353 21 7300200

 

 

 

 

 

Karol-Ann Randles

Associate

Karol-Ann is an associate solicitor with J.W. O’Donovan having joined the firm as a trainee in 2008, and qualifying in 2010.  She practises in the areas of Litigation and Dispute Resolution,  and Employment Law with a particular emphasis on public liability, employer’s liability and product liability claims, across a variety of industries and at all court levels.

Email: krandles@jwod.ie

Phone: +353 21 7300200