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Buachaill, Barrister
Category: Republic of Ireland Law
Satisfied Customers: 10974
Experience:  Barrister 17 years experience
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I hold a letter of undertaking form a firm of solicitor on

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I hold a letter of undertaking form a firm of solicitor on behalf of a management company and a builder to furnish a folio showing the man co as owner of the common areas. the folio has not been produced. the builder is in liquidation, the undertaking is expressed not to be binding on the firm of solicitors. does the eu law have anything to say about undertaking form firm of solicitors expressed to be non binding on the firm that give it.
Buachaill :

1. At the outset, EU law has nothing to say about undertakings given by solicitors. Undertakings are a form of professional guarantee given by solicitors that something will be done. However, if an undertaking is expressed not to be binding on a firm of solicitors, then it is not an undertaking!! It is merely a letter of comfort which is not binding on the solicitor. If the undertaking is expressed to be binding on the management company or the builder, then one of these will have to be sued to enforce it. IN order for the letter of comfort/undertaking to be binding to take the commons areas out of the liquidation, the particular letter would have to undertake to hold the common areas for the benefit of the management company. In such circumstances, the liquidator of the builder would be obliged to transfer the common areas into the ownership of the management company. Here I would advise you to get a lawyer to read the letter to see what is says.

Buachaill :

2. Be aware additionally, that the Multi Unit Dwellings Act, 2011, may help you here. Sections 3,4 & 5 confer an obligation on the developer to transfer the common areas in a multi unit development to the management company. This applies to all development whenever completed. This would provide a solution to your problem without relying upon the alleged letter of comfort or undertaking. It will enable you to compel the liquidator of the insolvent builder/developer to convey the common areas to the management company.


The letter of undertaking expressly states that it is not binding on the firm of solicitors. It is an undertaking on behalf of the builders 'that it will furnish a certified copy or folios showing Chapel Farm Management Company Limited registered as owner thereon in respect of that part of the development at chapel farm agreed to be transferred to the management company. ' No time limit. I have copies of the agreement contract between the builder manor Park homebuilders Limited and Chapel Farm Management company Limited. Wld that wording operate to take the undertaking our of the liquidation? Is that a charge or wld it be in effect a transfer of the that part of the development to be transferred to the man company so that no charge I presume required to be registered under s99. I have been looking up a high court case called response engineering -- v cath.... AIB Trying to use a letter of undertaking to get cash belonging to the def in liquidation. All turned on whether the undertaking was a security or an assignment of a debt and that all seemed to turn on whether or not there was an equity of redemption in which case it would be security and void against the liquidator as not registered in time. Ct found there was an equity of redemption in effect and so a charge and void against liquidator.. Cld one apply the same reasoning to this undertaking = ie no equity of redemption no going back - it is an out and out transfer and therefor out of the assets for disposal of? I note what us say about the MU Ac t how is the BANK compelled by the Act ? Or is it the Liquidator? who has to carry out the transfer. Attach utaking and law soc practise note how is u/taking a liability on company? Manor park in liquidation now

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Thank u for . Im a solicitor a lot of practise but this all very new and just worried about what is going on. Have caution on oflio but bank has applied to have debenture entered as charge. where liquidarors and sol saying they will be transferring to man co and fignal co co - if so why need for app to land reg. ???


Are u a barrister? I have written to Mathesons who wanted me to remove the caution to allow them to effect transfer of the common areas to the man co and some land to fingal ( fingal anor problem - thye told me they don't have money and want bank to spend money to effect repairs??? and that may be obstructing the transfer of common areas to the man co. But anyway said no and cldnt they do a S11 declaration . Unless problems with Bank ? Don't know. Hence this query. Jut wondering if there may be cause to see if there is a case to make application to the high ct on foot of undertaking and agreement to eliminate any doubt that the undertaking that it Manor Park will furnish certified copy folio means they were holding these land in trust?? They are not in liquidators assets. Think too late to seek to register contract as a charge in CRO.


Did u get my reply ? Wld be most obliged for a reply/opinion on the letter of undertaking. If that is not within yur remit then just say so?

Customer: replied 4 years ago.
Relist: Incomplete answer.
Customer: replied 4 years ago.

I wonder if u rcd the letter of undertaking . Can u to reply to question with an opinion - if in your opinion that the undertaking that it (the builder) will furnish a certified copy folio or folios showing the management company as registered owner thereon ...... is a security requiring registration as a charge under s99 against builder asserts or might it be more of a transfer of the lands agreed to be transferred and no equity of redemption - and thus not amongst the asset of the liquidator or creditor for disposal ???

3. Dear M. Ward, At the outset, apologies for the delay in getting back to you. For some reason this question became blocked on the website & I couldn't access it. In the end I had to use the services of the administrator to unblock it.
4. At the outset, I would remove the caution as suggested by Mathesons and allow them to effect the transfer of the common areas to the management company. I have received and reviewed the undertaking and this essentially is an assignment in equity of the common areas to the Management Company by Manor Park such that the common areas became an asset of the Management company in equity and do not form part of the assets in liquidation of the company in liquidation, so the liquidator and his solicitor are correct in seeking to transfer the common areas to the Management Company now. This can be effected in accordance with the previously agreed documentation or simply by using the provisions of the Multiple Unit Development Act.
5. This assignment in equity is not a charge, as it does not hover over the assets of the liquidated company, Manor Park, nor does it require crystallisation in order to be effective. In effect the legal situation is that the insolvent company, Manor Park holds this asset in trust as legal owner, for the ultimate beneficiary in equity, Chapel Farm Management Company Limited. There is no charge in existence which requires registration under s.99. It is also correct for the liquidator not to include these common areas in the insolvent company's assets, as the company does not in fact own them in equity. The company, Manor Park, merely holds a bare legal title as trustee.
6. Here, there is no risk in releasing your caution, as in effect the Management company CFMCL is the owner in equity of the lands and can sue for their conveyance to them, as can each individual unit owner, including your client under the Multiple Unit Dwellings Act. Whilst there may be the Fingal County Council issue, this issue is not material to your client's situation as this obligation to carry out repairs will ultimately be enforced by the Management Company once it gets the property conveyed into its name.
7. If there is any point on which you require further clarification, I will be happy to help. Finally, be aware that an agent, such as a solicitor has full power to bind his client the principal, Manor Park to an assignment of the common areas, to the Management Company and this assignment can now be enforced by all the individual owners of the units in the development under the MUD act.
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Customer: replied 4 years ago.

Thank u buchaill for your opinion. very much. believe me I want to remove the caution also . litigation costs money. A lot so hoping we can avoid it??

The lands 'agreed to be transferred ' are estate lands 1 less dwelling house dwelling house defined as including land upon which it is intended to build houses and 2 land that are dedicated open space.

There are three large plots amounting to c 12 acres and think these are the lands that are in question.Is council taking any of them in charge or are they to go to man co? Or is there plans to sell and suspect there is but no sign of PP??

Am asking receiver for s11/S12 declaration over lands in centre of the estate of no use to bank at all but a lot to us. Make it much easier to remove caution .

I think and hope what we may be doing now is ascertaining the land agreed to be transferred but u have answered most nb question thank u .

8. Here, if Mathesons are solicitors for the liquidator or receiver of Manor Park, then you should liaise with them as to what is their intention in relation to the lands which are the subject of their transfer. The common area lands are not a problem. However, the open space lands are not subject to the Multiple Unit Developments Act. Here you should look at the planning permission obligations in relation to open space and see if the Council could help you. Remember, you can always bring an action under s.160 of the Planning & Development Act if this was conditioned in the planning permission that it be open space. This is one way to outmanoeuvere the liquidator/receiver.
Customer: replied 4 years ago.

Thank u very much buachaill.

That is exactly what I am trying to do.

Think this condition fingal imposing that os works be done is hurdle and shouldn't be on the cards at all. We all got letter from fingal co co confirming compliance with financial condition of the pp including that security lodged. I have had to remind them of that. I also attach PP F03a/1378 if u don't mind and refer to condition 3??

As to planning obligations in relation to open spaces one PP specified section of the land will be maintained by the council . So presume this is what s160 would apply to and mud act to the rest.

Main thing is confirmation that land agreed to be transferred held in trust by MPH. Great help. for me leaving which of the three large section - what being done with them and that task.

If need be can I / we come on again. have to see how liquidator and council respond to what I am asking for, ie

1 Transfer or if not possible at this stage to determine what land being dedicated a declaration s 11 over the obvious common areas.

2 Has deed of dedication been handed over re this dedicated land on s west of site.


M Ward. .


9. You can certainly come back for more advice. I will still be able to refer to the thread. CAn you pay me for the advice to date & I will revert when your proposal has been considered by the other side. Be aware that this Response by you did not contain a copy of the planning permission as you referred to in your Response. This can be added in yout next Reply.
Buachaill and other Republic of Ireland Law Specialists are ready to help you
Customer: replied 4 years ago.


I assumed rightly or wrongly that the eu38.00 paid was for this advise. can u clarify please.

I may be able to send u anor 30.00? But that max.

What I have in mind also is if u are in law library and man co / member have to move furnish that we cld approach u as counsel?? But have to see what happening first is that ok.

I attach PP

Customer: replied 3 years ago.

Dear Domhnaill,

This is m ward here .

I was in contact and thank u for your advises on this complex OMC and transfer of common areas etc.

Since my last message there has been development concerning the board of the man co

I resigned form the board a few month ago as one of Director is also director of a company he wound up as it cld not pay its debts and (2) Allocation of service charge payment .

The board allocating all to maintenance of lands that is not the responsibility for the man co until agreement for sale completed.

I got invalid notice of an agm and invoice for s charge that I am not paying

1 No valid agm and no valid annual meeting or report under s17 of MUD Act

2 Term of lease of easement to me is that in consideration of payment of service charges to the lessor/vendor in the manner set out in schedule three that the lessor vendor developer liable for furnishing all the service set forth in the fourth schedule of the lease until the agreement for sale is completed.

I have written to the company secretary so informing and calling on the Board to seek to have the agreement completed. It is a condition of the contract that on the completion date manor Park Homebuilders will PAY the management company (this was signed in 02) by way of apportionment account and in default by settlement .

I attach draft Ordinary Civil Bill form 2A and would be obliged for an opinion? Would u recommend naming the Receiver Liquidators Bank of Scotland Fingal Co. Co. and indeed Man Co as defendants?

I think that we the Joe soaps are suffering between the big powers.

But it the bank big one question for me what interest does the bank have in these lands ? They are acting as it they have none anyhow ?

Order 46B of the Circuit Court Rule apply Do u know if any applications have been made to the C Ct for transfer of common areas when developer in liquidation?

Customer: replied 3 years ago.

Attachment: 2014-11-09_151645_consent_12_9-signed.pdf


Thank u for your opinion .

It is the RECEVIER who claims that the land charged by the debenture on foot of which he was appointed

The Debenture excludes - excluded property - defined as any property or interest in any property in which the chargor has entered into a contract for sale and is in receipt of the entire proceeds but has not entered into a deed of assurance - from any floating charge. So the contract exists.

U recommend lifting of the caution to allow common areas be transferred. But receiver sending out very mixed message of intention - e.g. to land registry on 21 May that my caution was preventing receiver form effecting the transfer but in contract for sale of development land in Drogheda contain a no recourse clause - warning purchaser that he may not be entitle to all land cos a third party may have title but make no disclosure of beneficial interest of man co in any lands. he want to keep man co off the title.

I sent letter however to land registry 11 9 14 - conditional consent to the caution being withdrawn in consideration for the registration of transfer of land to the man co. The idea that the lodgement of the transfer wld activate the consent. (Attached)

But caution was lifted. And charge now on folio to allow receiver exercise power of sale. ??.

S40 of the Conveyancing and Law Reform Act of 2009 pertain to

Attachment: 2014-11-09_111200_ms_k_gray_5_11_re_s40-signed.pdf

transfer of part or parts of property where grant in such case created easements over the part retained for the benefit of the part sold and under S40.3 does not o/wise affect the creation of easements to give effect to the common intention of the parties to the grants.

The transfer here are site transfer which recite the intent that MPH will dispose of the land less the dwellin

Attachment: 2014-11-09_110720_ms_k_gray_5_11_re_s40-signed.pdf

g houses to the man co and furnished the undertaking s to do .

I would be obliged for counsel opinion on S40.3 - if it kicks into protect these easements for benefit of sites when common intention of parties not effected and if so is land registry defeating the intention by charging the lands prior to lodgement of transfer of common areas to man co in land registry . .

10. Section 40 does not apply to your situation as you are dealing with a situation of express grant, not implied grant. The easements are contained in the sale document not implied. Additionally, you should not waste your time hoping the Land Registry will solve your problem. The Land Registry will not adjudicate upon problems you may have with the Receiver.
Customer: replied 3 years ago.

I am not dealing with any express grant.

Sorry should have made that clearer.

The transfer contain NO GRANT OF EASEMENT in favour of the site .

MPH very carefull to keep easement for benefit of site off title. In deed one transfer expressly states that no easement of necessity even created - transfer from MPH . So not as simple as u suggest.

But they do recite the agreement for sale and the intention of MPH to disposes of the land to man co.

Nor do the site folio contain and easement on part one but site folio records that it is subject to the burdens - easement in favour of the retained lands.

Only two of the leases of easement granted to homeowners over land registered as burden on parent folio ?That is why have told land registry that the Section kick in when common intention fo the parties to the grant not been performed.

For say receiver succeeded in sale of these land in Drogheda . U have this third party entering onto lands - this developer - PLUS HUNDRED OF HOMEWONER with these LEASES (me point Man Co uselss ) bit of a mess and an expensive one - so muc more practical if land reg just tell receiver off u go tehr the transfer and the intention sort it out with man companies and if u have to go to liq go there.

11. This is altogether too complicated with too many unknown facts. So I am going to Opt out of the Question. If you have a discrete question, I would suggest you ask that. At the moment there are too many variables floating about that this website is not geared to.
Customer: replied 3 years ago.

Dear Buchaill


1 Two site transfer carved out of folio no 146222F Co Dublin - no grant of easements over retained lands registered,

2 Part three of parent folio - entry no 3 about grants of lease of easement if any - bar two registered as burdens.

3 Recital and Op part of transfer of site in hollywell - which recites the agreement for sale but grant of easement only for benefit of disponer .

What do homeowner here have to reply on for right of way and access if receiver sold land here in manner he is selling in Drogheda - man co left out - and difference of opinion emerge over right of way and access over lands. ? AND NO Transfer of common areas to man co, ??

M Ward.

Note Civil bill under MUD Act issued and served in June and No defence served. Man Co in last n/letter expressed confidence about land being transferred by Xmas?? not looking for any fast reply. Agree it is complicated.

Letter gone to land registry anyway.

RE Land Registry . Note u say land registry don't adjudicate but did they not do that as between continuing caution until transfer lodged in land registry when they will have letter to allow them charge lands -v- Matheson application that land be charge first and foremost per their application for the receiver to the land registry by letter dated 21 May . Attach letter to land registry - registered post - dated 4th November. There is a land registry legal office note dated 14 July no 6 of 2014 about receiver and power of receiver which states 'authority must be satisfied that receiver has power of sale' ?? Do u mind if I come back again on this - have to think about it. U have folio site which I hope address question about EXPRESS grants of easements for benefit of sites. .

Attachment: 2014-11-10_113126_dn185416f_023209.pdf

Attachment: 2014-11-10_113245_dn156933f_063050.pdf

Attachment: 2014-11-10_113906_f_146222f_part_three.pdf



Customer: replied 3 years ago.




I hope u got site folio here that show no easement for benefit of sites .


I refer to Land Registry Legal Office Note of No 6 dated 14 July 14 - which applies to application for first registration by purchaser from the receiver.

Attachment: 2014-11-11_142754_land_reg_legal_offcie_note_p2.pdf



I attach Condition for Sale of Development lands in Drogheda by same receiver which disclose no interest of man co but warns purchaser of possibility of third part having title to some or all being sold AFTER charge entered on folio.


Where wld registration of the purchaser title with assignment of right of way over ALL leave homeowners when no transfer of land to man co?


Is there case for application to court for order that the policy is faulty under S40.3 of 09 act in application by receivers to charge folio land out of which site transfer carved which contain no easement for the benefit of the site over the retained landS but do recite agreement for sale and common intention fo the parties that disponer will transfer land to the man co. under S40.3 ? - It is defeating operation of S40.3 for as long as no trafer of common ares to man co or more straightforward one directing that charge be removed and cauitn re instated until transfer of common areas in land reg. who hold letter of consent anywhay ??




Subject of course to the developer not having charged the lands.








Debenture on foot of which T Kavanagh Appointed


1 Floating charges exclude 'Excluded property - any land or interest in lands sold to third party 2 Fixed charges = land listed in schedule that are marked on maps attached to the debenture. .







Attachment: 2014-11-11_141946_lot_180_contract_for_sale_lot_180.pdf