Negotiating the maze of land sales and transfers
Published 10/06/2015 | 02:30
Buying and selling agricultural land, like any other property, can be a daunting prospect.
There are many key personal factors to take into account like cost, commitment and security. Yet when the decision is made many get mired down as terms are bandied back and forth in the legal process.
Here are some of the main terms that you'll hear from your solicitor and auctioneer if you're on the verge of transferring or purchasing land.
The most common ways of buying and selling land in Ireland continue to be 'sale by private treaty' which means that the property is not put into an auction.
You can contact the seller or the seller's agent, usually an estate agent, to agree a purchase price.
The alternative is to purchase a property at an auction, in which case the purchase price is normally decided by the highest bidder.
The main difference for the purchaser is that the 'contract for sale', that is, the document that binds the parties to the completion of the sale, is signed immediately at the auction.
However, in the case of a sale by private treaty your solicitor will check that the contract is in order before you sign it. A deposit is typically paid at this stage.
The completion date will be set out in the contract and the balance of the agreed purchase price will be due on that date.
If you decide not to go ahead with the sale after the contract has been signed the deposit will likely be lost to the seller.
Closing the sale
After signing the contract and before the completion date of the sale, your solicitor will raise some general queries about the property with the seller's solicitor.
Requisitions on Title are a standard set of questions relating to the sale of a property that deal with such things as whether fixtures and fittings are included in the sale. The seller's solicitors must answer these.
When your solicitor gets a satisfactory reply to Requisitions on Title, a 'Deed of Conveyance' is drawn up by them and approved by the seller's solicitor.
Your solicitor should carry out enquiries with the land registry/registry of deeds to ensure that the property is free from mortgages or other outstanding charge.
Once the Deed of Conveyance is approved by the seller's solicitor, your solicitor will contact your mortgage provider to request the issue of the approved loan cheque.
This is the remaining balance of the purchase price.
Once it has been paid to the seller's solicitor all documentation relating to the land is handed over to your solicitor.
Your solicitor will calculate how much stamp duty is due and request this from you before the closing of the sale. The stamp duty is paid to the Revenue Commissioners, who place a stamp on the deeds. Without this stamp, the deeds cannot be registered.
Stamp Duty is paid on the value of the land at the rate of 2pc. A reduction to the rate of 1pc applies in transfers of agricultural land between family members where the person transferring the land is under 65 years of age.
Farmers under the age of 35 who have satisfactorily attended an agriculture course, that meets Revenue's requirements, do not have to pay Stamp Duty.
However, the young farmer must not sell the land for five years after the transfer, unless the farmer is replacing the lands sold within a timeframe of one year. Also, she or he must spend 50pc of their time farming the land for five years.
Once a sale is completed, your deeds, showing the new ownership details and mortgage details, if relevant, must be registered with either the Registry of Deeds or the Land Registry.
Counting the cost
As well as tax and duty, legal costs are a huge source of concern for families when considering transferring the family farm. Here is a breakdown of what costs you are likely to encounter when purchasing lands.
Professional Fee What the solicitor is charging for his skill, knowledge and time.
Postage and stationary This typically costs between €30 - €50 for a standard transaction.
Land Registry Registration fees are calculated on the basis of the value of the land. For lands valued at €50,000 or less a fee of €400 applies and increases on the basis of value upwards and is capped at €800 where the land value exceeds €400,000.
Registration of a mortgage or charge will cost €175 per mortgage.
For sellers who need to remove a charge from property before selling a cost of €30 applies per charge.
Where lands are split over more than one folio, some of these fees are multiplied by the number of folios.
There are a number of additional costs that should be factored in when considering a purchase.
For example, if you are using a mortgage for the purchase the bank's solicitors will typically charge €1,000 to create the charge.
In addition, they will likely require a boundary survey and planning search to be undertaken by an engineer/architect with costs ranging from €300- €700.
'Swearing fees' apply to some legal documents and typically range from €10-€20.
'Scrivener fees'will only apply if a different solicitor's office hold title documents and will only release it for a fee, which typically amounts to around €100.
Finally, a Land Registry Map costs €40.
Of course, the best way to plan for these costs is to speak to your chosen solicitor about the potential bill, however you should bear in mind that there is a large variance in solicitors' professional fees across the country.
The Law Society recommends that best practice for solicitors is to act for only one party in a transaction. Therefore, even in the case of a transfer of agricultural land within a family, the transferor and the transferee will each have to retain separate solicitors.
Theresa Murphy is a barrister based in Ardrahan, Co Galway.