Review of eConveyancing and Title Registration in Ireland (eds Murphy and Kenna)

eConveyancing and Title Registration in Ireland

(eds) Sandra Murphy and Padraic Kenna

PUBLISHER: Clarus Press Ltd

ISBN: ISBN 978-1911611134

PRICE: €99

Why a review about e-conveyancing and title registration in Ireland? That is a fair question. The answer is that the development of the subject in Ireland since 2003 or thereby should be of interest to any jurisdiction contemplating upgrading its title registration system and making the move to e-conveyancing from a paper-based or analogue system.

If you were to mention the word “digital” to a conveyancing solicitor 40 years ago, they are more likely to think that you were referring to something to do with their new Casio watch. Even cut forward 20 years, and the idea of a “digital dealing room” would still probably have been science fiction rather than fact. However, with the pace of change in the technological revolution, this is now upon us. Couple that with a period of considerable change in legal practice in the past 10 years in particular, and it is perhaps true to say that the only constant these days is change itself.

Ireland first considered the introduction of e-conveyancing in 2003 when the Law Reform Commission considered the subject; it published its report in 2006. In 2008, the Irish Law Society’s eConveyancing Task Force published its “eVision”, entitled eConveyancing: Back to Basic Principles. Vision of an Electronic System of Conveyancing. Development seemed to stumble forward from that date, most notably with the failed initiative involving Teranet from Canada. Despite some setbacks, the main stakeholders in the development of e-conveyancing, most notably the Law Society and the Law Commission, have continued to develop their thinking. To that end, this book is based on the papers presented at a conference convened in April 2017 entitled The Future is now eConveyancing and Title Registration.

The book is divided into five strands and takes the form of a comparative analysis of other systems compared to what needs to be done in Ireland to implement an e-conveyancing process – e-conveyancing being described as “a secure paperless electronic, end-to-end pre-sale to post-completion conveyancing process”. Of particular interest is the acknowledgment that the move to e-conveyancing has important private and public law implications as well as social and economic benefit.

The book is divided into 11 chapters, each of which merits a brief description here. The chapters follow an introduction, written by one of the authors, in which she outlines the five strands of the book, namely: Reform; Land Registration; The English and Welsh experience; Blockchain technology; and Challenges for Ireland. As the author states: “An effective and efficient system of eConveyancing requires an effective and efficient land registry system, as one supports and complements the other.”

This is absolutely fundamental and is best described by the significant developments in Australia in recent years (see www.pexa.com.au), where there has been a revolution in conveyancing practice built on true collaboration among all stakeholders sharing a common vision. It is, perhaps, unfortunate that such a significant development in another common law country was not the subject of comparative analysis in order to determine whether lessons could be learned in Ireland. There is only a passing reference in a footnote on p 26, as well as commentary in chapter 10 on the subject of error and responsibility.

Chapter 1: this chapter contains an overview of the development of the Irish conveyancing system and helps places the subject against the relevant background matrix, before concluding with an outline of the changes that would have to be made to Irish conveyancing law in the e-Conveyancing environment. As has been the case in other jurisdictions, there will be radical changes to traditional conveyancing processes, in particular, the abolition of the principle of caveat emptor and moving to a system of full disclosure by the seller backed up by warranties and indemnities given to the purchaser. It is always good to have a direction of travel, and this chapter ably outlines the nature of the changes required.

Chapter 2: having set the background, the next chapter looks at challenges and opportunities for Ireland. This is considered against the trend for globalisation of compulsory land registration systems and e-conveyancing is seen as being both a goal of and a reason for the aim of a comprehensive registration of title system. It is stressed that the electronic register must be capable of recording all the rights and interests that affect the title to any given property at any given time. This chapter also considers the need for recognition of the digital signature of deeds, and asks the pertinent question as to whether the legal profession is ready for electronic conveyancing – will it ever be? The authors correctly see this as both a challenge and an opportunity for the legal profession.

Chapter 3: this chapter documents the development of e-registration services in the Irish Property Registration Authority and comments on how e-conveyancing would assist in improving Ireland’s position in the World Bank’s Ease of Doing Business rankings – which is a constant theme when reform of conveyancing is being considered. As the author states, the terms e-conveyancing and e-registration are often confused and used interchangeably.

Chapter 4: strand 3 begins with an analysis of the updating of the Land Registration Act 2002 in England & Wales as proposed by the Law Commission. Reform is correctly described as being incremental in nature.

Chapter 5: this chapter looks at lessons that can be learned from the England & Wales experience. The author advises caution in any decision to change the substantive law in order to make e-conveyancing work.

Chapter 6: this chapter assesses blockchain’s suitability for real property transactions.

Chapter 7: blockchain conveyancing is mooted in this chapter and the author looks at the underlying nature of blockchain (and the perceptions of what it can and cannot do), before undertaking a comparative review of various systems that have developed using blockchain – most notably in Estonia where an e-notary system has been developed. The author concludes that distributed ledger technology may well have a role to play in the world, but probably not in the UK – a view with which I agree.

Chapter 8: this chapter considers the issue of ownership of data in the context of legal objects.

Chapter 9: the law on adverse possession and its reform is considered.

Chapter 10: this chapter looks at error and responsibility in the context of a move to e-conveyancing. There is also a passing reference in a footnote on p 156 to an article about the reaction of solicitors in Scotland to changes introduced in the 2012 Act (which was a fairly negative article, it has to be said). There is also a reference to the concept of care being put on a statutory footing in Scotland as a result of the 2012 Act. It is a pity that a more in-depth analysis of the Scottish developments through ARTL to the 2012 Act and beyond was not part of this book.

Chapter 11: this chapter looks at European law and issues such as the European Convention on Human Rights potentially setting some constraints on e-conveyancing.

The joint editors are to be commended for their efforts in compiling this book, which reflects a subject which crosses the boundaries of property law, technological developments and public policy. Not an easy task, but one which the editors achieve very well indeed, leaving the reader asking about what should happen next. It is suggested that that must, by necessity, involve attracting the interest of Government.

Some would say that we always seem to be on the brink of making the changes required in order to move fully towards e-registration and e-conveyancing. I agree with the authors that some form of e-conveyancing is inevitable. For that to come to reality, there requires to be true collaboration among all stakeholders. Land registries can only do so much – albeit their reforms towards e-registration are an essential building block. An equally important building block is how money transfers among the various “players” in the system. That is a subject not covered in the book but in which the Bank of England is now engaged in its reform of the real time gross settlement system in the UK. Once again, Australia has led the way in this regard with their establishment of an efficient property exchange system and instant money transfer. It is hoped that it is not too much to suggest that the UK and Ireland can learn a lot from the Australian experience.

The Author

Professor Stewart Brymer OBE, WS, Brymer Legal Ltd

The book review editor is David J Dickson

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