S.I. No. 188/1995 - Housing (Sale of Houses) Regulations, 1995.

S.I. No. 188 of 1995.

HOUSING (SALE OF HOUSES) REGULATIONS, 1995.

In exercise of the powers conferred on the Minister for the Environment by section 5 of the Housing Act, 1966 (No. 21 of 1966), as amended by section 24 of the Housing (Miscellaneous Provisions) Act, 1992 (No. 18 of 1992) and by section 90 of the Housing Act, 1966 (as substituted by section 26 of the Housing (Miscellaneous Provisions) Act, 1992 ), which powers are delegated to me by the Environment (Delegation of Ministerial Functions) Order, 1995 ( S.I. No. 3 of 1995 ), I, LIZ McMANUS, Minister of State at the Department of the Environment, hereby make the following Regulations:—

1 Citation

1. These Regulations may be cited as the Housing (Sale of Houses) Regulations, 1995.

2 Interpretation

2. (1) In these Regulations, any reference to—

( a ) an article which is not otherwise identified is a reference to an article of these Regulations;

( b ) a sub-article which is not otherwise identified is a reference to a sub-article of the article in which the reference occurs.

(2) In these Regulations—

"market value" means the amount which, in the opinion of the housing authority who own it, a dwelling, if sold on the open market in its existing state of repair and condition and not subject to the special conditions referred to in article 10, might reasonably be expected to realise, reduced,

( a ) where improvements have been carried out to the dwelling other than by or on behalf of the authority, by the portion (if any) of such amount that, in the opinion of the authority, is attributable to such improvements; and

( b ) where the site of the dwelling was provided to the authority for a nominal sum, by the excess (if any) of the market value of the site over such sum.

"the Minister" means the Minister for the Environment;

"section 90" means section 90 of the Housing Act, 1966 , as substituted by section 26 of the Housing (Miscellaneous Provisions) Act, 1992 .

3 Application

3. These Regulations, other than article 14, shall apply to the sale under section 90 by a housing authority of a dwelling (hereinafter referred to as "the dwelling") to the tenant thereof (hereinafter referred to as "the purchaser") in accordance with a purchase scheme adopted by the authority with effect from 1st day of May, 1995 under section 90.

4 Sale in fee simple or by way of shared ownership lease

4. A dwelling to which these Regulations apply shall be sold either by the sale of the fee simple or by way of a shared ownership lease and the provisions of section 3 of the Housing (Miscellaneous Provisions) Act, 1992 shall apply in relation to any sale by way of a shared ownership lease on the terms set out in the Transfer Order contained in the Second Schedule to these Regulations provided that the sum of money payable by the purchaser in respect of the grant of the lease shall be not less than 50% of the purchase money.

5 Purchase money for dwelling

5. The purchase money for the dwelling shall be its market value reduced by the amount of the discount under article 6 (hereinafter referred to as "the discount") and the amount of the allowance, if any, under article 8.

6 Discount

6. The discount shall be an amount equal to three per cent of the market value in respect of each year of the reckonable period of tenancy determined by the housing authority in accordance with article 7, subject to a maximum of thirty per cent of the market value, plus £3,000.

7 Reckonable period of tenancy

7. (1) Subject to sub-article (2), the reckonable period of tenancy shall be the aggregate, immediately prior to the date of the completion of the sale, of the following periods where they are continuous and to such extent as they are not contemporaneous—

( a ) the period of the tenancy of the purchaser or his spouse of the dwelling and of any other dwelling let by a housing authority,

( b ) the period (if any) during which the purchaser or his spouse occupied the dwelling as a purchaser under the terms of a previous sale of the dwelling by the housing authority, and

( c ) where the purchaser or his spouse—

(i) was, for a period of at least one year immediately preceding his appointment as tenant of any dwelling by a housing authority, bona fide resident in such dwelling as a member of the household of the preceding tenant, and

(ii) succeeded to the tenancy of such dwelling,

the period that would be reckonable in respect of such preceding tenant by virtue of this sub-article if such tenant were purchasing the particular dwelling to which the purchaser succeeded him as tenant.

(2) The reckonable period of tenancy determined in accordance with this article shall be rounded up to the next number of complete years where such rounding up would not result in the addition of more than six months to such period.

8 Allowance for previous purchase

8. An allowance shall be deducted from the market value, after the discount has been allowed, of an amount equal to the amount (if any) of capital paid to the housing authority by the purchaser or his spouse in accordance with the terms of a previous sale of the dwelling to him or his spouse by the authority.

9 Payment of purchase money

9. (1) Where the dwelling is being sold in fee simple, the purchase money for the dwelling shall be paid to the housing authority in full on the completion of the sale.

(2) Where the dwelling is being sold by way of a shared ownership lease, the sum of money payable in respect of the grant of the lease shall be paid to the housing authority in full on the grant of the lease.

(3) Where any portion of the purchase money in accordance with sub-article (1) or (2) is being financed by way of a loan by a housing authority to the purchaser under section 11 of the Housing (Miscellaneous Provisions) Act, 1992 , "paid" in sub-article (1) means the completion by the purchaser of a mortgage contract in respect of such loan.

10 Special conditions

10. The sale of the dwelling shall be subject to the special conditions referred to in paragraph (b) and (c) of section 89 of the Housing Act, 1966 , for a period of twenty years from the date of the completion of the sale, or such longer period as may be provided for in a shared ownership lease.

11 Transfer order

11. (1) The transfer order for the sale of a dwelling, shall—

( a ) where the sale is of the fee simple, be in the form set out in the First Schedule, or in a form substantially to the like effect, or,

( b ) where the sale is by way of a shared ownership lease, be in the form set out in the Second Schedule, or in a form substantially to the like effect,

unless in either case the Minister consents to another form.

(2) A housing authority shall, on making a transfer order in respect of a dwelling, furnish a copy of the order to the purchaser.

12 Minimum period of tenancy

12. A housing authority shall not sell a dwelling unless the reckonable period of tenancy, determined by the authority in accordance with article 7 (1), without reference to article 7 (2), is of at least one year's duration.

13 Classes of dwellings which may not be sold

13. A housing authority shall not sell a dwelling which—

( a ) is a caravan, mobile home or structure or thing (whether on wheels or not) that is capable of being moved from one place to another, or

( b ) has been specifically designed for occupation by one or more elderly persons and is so occupied.

( c ) is a separate and self-contained flat in a premises, divided into two or more flats, which would require arrangements for the upkeep and management of common areas, works or services other than by the purchaser.

14 Sale of other dwellings

14. A housing authority shall not sell, without the consent of the Minister, a dwelling under sub-paragraph (ii) or (iii) of paragraph (a) or under paragraph (b) of subsection (1) of section 90 unless it is sold at the best price reasonably obtainable on the open market in its existing state of repair and condition.

15 Revocation

15. The Housing (Sale of Dwellings) Regulations, 1993 ( S.I. No. 267 of 1993 ) are hereby revoked.

FIRST SCHEDULE

Article 11

FORM OF TRANSFER ORDER FOR SALE IN FEE SIMPLE

Section 90 of the Housing Act, 1966 (as substituted by section 26 of the Housing (Miscellaneous Provisions) Act, 1992 ).

(hereinafter referred to as "the purchaser") in fee simple subject to the conditions (if any) and special conditions herein specified.

2. No warranty shall apply or be deemed to be implied as to the state of repair or condition or the fitness for human habitation of the dwelling.

3. The following special conditions shall apply to the dwelling for a period of twenty years from the date of vesting of the dwelling:

( a ) the dwelling shall, unless the housing authority otherwise allow, be occupied as a normal place of residence by the purchaser or the purchaser's successor in title or by a member of the purchaser's family or the family of his successor in title;

( b ) the dwelling or any part thereof shall not, without the consent of the housing authority, be mortgaged, charged or alienated otherwise than by devise or operation of law.

4. The following conditions shall apply to the dwellings:⁵

5. Description of dwellings:⁶

Note

( a ) Where the housing authority give or have given consent to a mortgage in respect of a dwelling sold by them under section 90 of the Housing Act, 1966 , as substituted by section 26 of the Housing (Miscellaneous Provisions) Act, 1992 , the authority shall be regarded as having consented to any further or consolidated mortgage effected by the same mortgagor and to the exercise by the mortgagee of his powers under any such mortgage (section 90 (9)).

( b ) Where, in relation to a dwelling sold by a housing authority, the authority give consent to a further sale or a mortgagee exercises his powers of sale under a mortgage, the special condition at paragraph 3 (b) of this Order shall, from the date of the sale, no longer apply (section 90 (12) (b) of the Housing Act, 1966 as substituted by section 26 of the Housing (Miscellaneous Provisions) Act, 1992 ).

SECOND SCHEDULE

Articles 4 and 11

FORM OF TRANSFER ORDER FOR SALE BY WAY OF SHARED OWNERSHIP LEASE

Section 90 of the Housing Act, 1966 (as substituted by section 26 of the Housing (Miscellaneous Provisions) Act, 1992 ).

Section 3 of the Housing (Miscellaneous Provisions) Act, 1992 .

2. IN THESE PRESENTS the following words shall where the context so permits or allows have the following meanings that is to say:

( a ) "The Authority" and "the Purchaser" shall include their respective successors and assigns.

( b ) the singular shall include the plural number and vice versa.

( c ) the masculine shall include the feminine gender and vice versa.

( d ) "The Purchaser" shall include the persons named as purchaser at the commencement hereof and if they be more than one all the obligations herein contained on the part of the Purchaser may be enforced either jointly or severally against all such persons.

( e ) (i) The "value of the Authority's equity" in the dwelling at any date is that proportion of the purchase money adjusted for inflation that is not represented by the initial capital payment and any further capital payment made by the Purchaser to the Authority.

(ii) In paragraph (i) of this sub-clause:

"the purchase money" is the price for which the dwelling is sold by the authority after taking into account any reduction in the market value as a result of any discount or other allowance made by the Authority in accordance with their purchase scheme for the time being.

"adjusted for inflation" means adjusted in accordance with the quarterly changes in the Consumer Price Index — All Items published by the Central Statistics Office between the date hereof and the date in respect of which the value is being determined;

The proportion of the purchase money represented by the initial capital payment shall be determined by reference to the actual amount of the purchase money and the proportion of the purchase money represented by any further capital payment shall be determined by reference to the purchase money adjusted for inflation up to the date in respect of which such payment is made.

(iii) In paragraph (ii) of this sub-clause:

"market value" is the amount which, in the opinion of the Authority who own it, the dwelling, if sold on the open market in its existing state of repair and condition and not subject to the special conditions referred to in clause 5 might reasonably be expected to realise, reduced,

( a ) where improvements have been carried out to the dwelling other than by or on behalf of the authority, by the portion (if any) of such amount that, in the opinion of the authority, is attributable to such improvements; and

( b ) where the site of the dwelling was provided to the authority for a nominal sum, by the excess (if any) of the market value of the site over such sum.

"purchase scheme" is a purchase scheme within the meaning of section 90 of the Housing Act, 1966 , as substituted by section 26 of the Housing (Miscellaneous Provisions) Act, 1992 .

( f ) "special conditions" are the special conditions specified in Clause 5.

3. The Purchaser shall pay to the Authority in respect of the dwelling the yearly rent determined in accordance with Clause 4, such rent to be paid in advance whether formally demanded or not by equal weekly or monthly instalments as may be agreed between the purchaser and the Authority.

4. ( a ) The amount of the yearly rent payable by the Purchaser with effect from the date hereof shall be determined by the authority in accordance with the following formula

R1 = E x 0.05

where—

R1 is the amount of the yearly rent in respect of the year ending on 30th June next occurring after the date hereof the amount payable being calculated pro-rata where the period between the date hereof and the said 30th June is less than one year; and

E is the value of the Authority's equity in the dwelling upon the date hereof.

( b ) The amount of the yearly rent shall be revised with effect from 1st July next occurring after the date hereof and each 1st July thereafter in accordance with the following formula

R = E x 0.05

where—

R is the amount of the yearly rent so revised, to apply for the period of one year from the date on which the revision is to take effect; and

E is the value of the Authority's equity in the dwelling by reference to the Consumer Price Index — All Items number for the mid-February preceding the date on which the revisions is to take effect.

( c ) Notwithstanding sub-clause (b) of this Clause where the date hereof occurs between the date of publication of the Consumer Price Index — All Items number for mid-May and the next succeeding 30th June the value of the authority's equity in the dwelling shall for the purposes for the first revision under that sub-clause be such as the date hereof.

( d ) If the revised rent ascertained as aforesaid exceeds or is less than the rent payable immediately prior to the review date then the Authority shall increase or decrease the latter rent up or down to the revised rent and serve notice on the Purchaser in writing thereof.

( e ) At any time within 25 years of the date hereof and provided all rents due by the Purchaser to the Authority at the said date have been paid the Purchaser may apart from clause 8 (c) pay to the Authority a further capital sum or sums and as and from the 1st July following such payment the rent payable hereunder shall be revised in accordance with Clause 4 (b).

( f ) If the authority should fail to revise the rent under Clause 4 (b) at a time when the Purchaser has reason to believe that if exercised the revised rent would be reduced from the rent then payable the Purchaser may by notice in writing served on the Authority require the authority to so do.

5. The following special conditions shall apply to the dwelling for a period of twenty years from the date hereof or until the Purchaser has purchased the reversion expectant on the termination hereof in accordance with clauses 8 (c) or 8 (d) whichever last occurs:

( a ) the dwelling shall, unless the Authority otherwise allow, be occupied as a normal place of residence by the Purchaser or the Purchaser's successor in title or by a member of the Purchaser's family or the family of his successor in title;

( b ) the dwelling or any part thereof shall not, without the consent of the Authority, be mortgaged, charged or alienated otherwise than by devise or operation of law.

6. The Purchaser shall:

( a ) Pay the rent due and payable hereunder from time to time to the Authority at the times and in the manner aforesaid.

( b ) Pay all rates taxes charges (including but without prejudice to the generality of the foregoing any maintenance or service charges) assessments outgoings and impositions whatsoever which during the said term may be charged or imposed on the dwelling or on the occupier in respect thereof.

( c ) At his own expense forthwith comply with and indemnify the Authority against the requirements of any public or statutory body entitled or required to enforce the provisions of any statute, bye-law, order or regulation relating to or affecting the dwelling or any part thereof.

( d ) Keep the dwelling both internally and externally or any addition subsequently made thereto and every part thereof and all sewers drains and sanitary and water and other fixtures and fittings and all fences and all conduits for the supply of water gas electricity telephone wires and so forth in good order repair and condition and not to carry out any improvements additions or alteration to the dwelling except such as do not detrimentally effect the value thereof and having first obtained the requisite permissions or consents from the Planning Authority for the area in which the dwelling is situate and any other persons or body whose consent is required thereto.

( e ) Permit the Authority or its servants or agents and all other persons authorised by it at all reasonable times and on reasonable notice during the term hereby granted with or without workmen or others to enter into and upon the dwelling or any part or parts thereof to view the state of repair and condition thereof and of all defects or wants of repair (if any) then and there found for which the purchaser may be liable hereunder to give or leave on the said dwelling notice in writing to the Purchaser and within three months after such notice or sooner if requisite to repair and make good the same according to such notice and in the event of the Purchaser failing to make good the same within the said period the authority may enter upon the dwelling and make good the same and recover the cost thereof from the Purchaser.

( f ) Not assign sub-let or otherwise part with or share possession of the dwelling or any part or parts thereof without the prior consent in writing of the Authority but so that in the event of such consent being refused to an assignment by a mortgagee in pursuance of its powers as mortgagee the Authority shall join with the mortgagee in assigning or conveying to a purchaser from it the reversion expectant on the termination of the term hereof subject to the payment to the Authority of either an amount equal to the value of the Authority's equity at the date of the assignment or conveyance or such other sum payable to the authority in accordance with any agreement entered into between the Authority and the Mortgagee.

( g ) (i) At all times during the term hereof insure and keep insured the dwelling against loss or damage to the full reinstatement value thereof (such value to be determined from time to time by the Authority) in some well established insurance office in the joint names of the Authority, the Purchaser and any mortgagee and pay all premiums and sums necessary for that purpose and on demand produce to the Authority or as it shall direct the policy or policies of such insurance and the receipt for each such payment or adopt such alternative insurance provision as the Authority shall previously approve in writing.

(ii) In the event of the dwelling being damaged or destroyed in circumstances in which compensation is or would be payable under any Act of the Oireachtas make a claim immediately under such legislation and take all necessary steps to obtain the maximum compensation payable.

(iii) Unless the authority agrees otherwise as often as the dwelling or any part or parts thereof shall be destroyed by fire or otherwise forthwith rebuild and reinstate the same to the satisfaction of the authority according to the present plans and elevations or in such other manner and according to such other plans and elevations as may be previously approved in writing by the Authority and in case any money received by virtue of any insurance or any claim made in compliance with the provisions of the immediately preceding sub-clause hereof shall be insufficient for that purpose then the Purchaser shall make up the deficiency out of his own monies.

(iv) Pay all expenses incurred by the Authority incidental to the preparation and service of any notice under the Section 14 of the Conveyancing and Law of Property Act, 1881, notwithstanding that forfeiture is avoided otherwise than by relief granted by the Court.

( h ) Upon the expiration or sooner determination of the term hereof quietly and peaceably deliver up possession of the whole of the dwelling to the Authority in the condition in which the same ought to be having regard to the conditions herein contained together with all additions and provisions made or to be made thereto and all fixtures which may at any time during the said term be affixed to or upon the dwelling other than the Purchaser's fixtures.

( i ) Cultivate the garden (if any) and keep cut and trimmed all lawns (if any) to the reasonable satisfaction of the Authority and keep the garden driveways and pathways (if any) of the demised premises free from weeds and rubbish.

( j ) In the event of a sale of the dwelling by either the Purchaser or any mortgagee of the Purchaser's interest pay to the Authority a sum equal to the value of the Authority's equity in the dwelling at the date of such sale together with all other sums owed to the Authority out of the proceeds of sale and if necessary to make up any deficiency out of the Purchaser's own monies.

7. The Purchaser, on paying the rent hereby reserved and performing and observing the several conditions, including special conditions, herein contained and on the part of the Purchaser to be performed and observed shall and may peaceably and quietly hold and enjoy the dwelling during the term hereof without any interruption or disturbance from the Authority its successors or assigns or any person or persons lawfully claiming under or in trust for it or them.

8. PROVIDED ALWAYS that:—

( a ) (i) If the rent or any part thereof shall be in arrear for more than twenty-one days (whether formally demanded or not) or if there shall be any breach on the part of the Purchaser of the conditions, including special conditions, hereinbefore contained or if the Purchaser shall be adjudicated a bankrupt or shall take the benefit of any Act for the relief of debtors or shall suffer execution to be levied on the dwelling then and in any such case the Authority may at any time thereafter reenter the dwelling or any part of parts thereof in the name of the whole and thereupon these presents shall terminate but without prejudice to any of the rights and remedies of the Authority in respect of any rent in arrear or of any breach by the Purchaser of any of the provisions hereof.

(ii) In the event of these presents being terminated as provided in Paragraph (i) of this sub-clause the Authority shall, at its discretion, either sell the dwelling or retain it for the purposes of the authority's functions under the Housing Acts 1966 to 1992 and

— where the dwelling is sold, the authority shall ensure as far as is reasonably practicable that it is sold at the best price reasonably obtainable and shall pay to the purchaser the proceeds of sale provided that from such payment the Authority shall be entitled to deduct a sum representing the value of Authority's equity at the date of such sale and all reasonable expenses of termination and sale and all other sums then due by the Purchaser to the Authority in respect of rent or other payments due to the Authority under the provisions hereof;

— where the dwelling is retained, the value of the property shall be determined by an independent and competent person appointed by the Authority and agreed to by the Purchaser and the value so determined shall be treated as if it were money received by the Authority arising from a sale and the provisions in relation to a sale shall apply accordingly.

( b ) Any notice served or to be served by the Authority hereunder may be served by addressing the same to the Purchaser and sensing the same by ordinary prepaid post to the dwelling or to the usual or last known place of residence of the Purchaser if such place be not the dwelling or by affixing the same to some conspicuous part of the dwelling and may be served by the Purchaser by addressing the same to the Authority and sending it by ordinary prepaid post to the offices of the Authority.

( c ) The Purchaser may at any time within 25 years of the date hereof serve on the Authority notice of his desire to purchase the reversion expectant on the termination hereof and all the estate and interest of the Authority in the dwelling and on the service of such notice the following provisions shall have effect:—

(i) The purchase price shall be a sum equal to the value of the Authority's equity in the dwelling at the date of the said notice.

(ii) The Authority shall within four weeks notify the Purchaser in writing of the purchase price and the Purchase shall within four weeks of the service of such notice be deemed to refuse to purchase at the said purchase price unless he serves a counter notice agreeing to purchase at the said purchase price.

(iii) The Authority shall make all reasonable endeavours to secure the completion of the purchase on the earliest possible date.

(iv) On completion of the purchase and in addition to the purchase price the Purchaser shall discharge all arrears of rent and any other sums due to the Authority under the provisions of these presents and each party hereto shall pay its own costs and expenses in connection with such purchase.

( d ) If on the expiration of 25 years from the date hereof the Purchaser has not exercised his right under sub-clause (c) of this clause the Authority may at any time thereafter serve on the Purchaser a notice requiring him to purchase the reversion expectant on the termination hereof and all the estate and interest of the Authority in the dwelling and on the service of such notice the following provisions shall have effect:—

(i) The Purchaser shall within the period of 12 weeks from the date of the notice pay to the Authority the purchase price being a sum equal to the value of the Authority's equity in the dwelling at the date of the said notice.

(ii) Upon receipt of the purchase price the Authority shall make all reasonable endeavour to secure the completion of the purchase at the earliest possible date.

(iii) On completion of the purchase and in addition to the purchase price the Purchaser shall discharge all arrears of rent and any other sums due to the Authority under the provisions of these presents and each party hereto shall pay its own costs and expenses in connection with such purchase.

( e ) No warranty shall apply or be deemed to be implied as to the state of repair or condition on the fitness for human habitation of the dwelling.

9. IT IS HEREBY DECLARED that these presents are a lease pursuant to the provisions of the Housing (Miscellaneous Provisions) Act, 1992 being an Act making provision for shared ownership housing.

IT IS HEREBY CERTIFIED (insert any relevant Finance and Land Act certificates)

APPENDIX

ALL THAT AND THOSE (insert a description of the dwelling)⁵

Dated this 18th day of July, 1995.

LIZ McMANUS

Minister of State at the Department

of the Environment

EXPLANATORY NOTE.

These Regulations govern the sale by housing authorities of tenanted dwellings to tenants. Under section 26 of the Housing (Miscellaneous Provisions) Act, 1992 , the sale of such a dwelling is made in accordance with a tenant purchase scheme adopted by the housing authority. A sale can be made either in fee simple or by way of shared ownership lease. A tenant purchase scheme must comply with the provisions of the Regulations which, inter alia, set out the basis for the determination of the purchase price of a dwelling, prescribe certain conditions attaching to a sale and the terms of the shared ownership lease.

Where a housing authority sell a dwelling other than a tenanted dwelling, the Regulations require the authority to obtain the consent of the Minister to the sale unless it is made at the best price reasonably obtainable.