2. Freehold Title Investigation Flashcards

Question

Absolute title

Answer 1

- Title is near perfect - Given to freehold or leasehold interest - Proprietor of an interest reg with absolute title has the legal estate, appurtenant rights

Answer 2

- Entries on register - Unregistered interests within Sch 1 or 3 LRA 2002 - Where the proprietor is a trustee, minor interests of which they have notice (e,g, interests of beneficiaries under the trust) - Where land is leasehold, express & implied covenants and obligations under the lease

Answer 3

Registrar has the discretion to overlook minor defects ‘curing’ the defect

Answer 4

- Same effect as reg with absolute title, proprietor is subject to all adverse interests existing at date of first reg. - Those that have lost title deeds or claimed via adverse possession(LA 1980) - Is initially possessory, but can be upgraded

Answer 5

Title shows a specific identified defect which registrar deems to be of a nature that they can’t use discretion to overlook defect (breach of trust e.g.)

Answer 6

Property Proprietorship Charges

Answer 7

- Describes the estate in land which is registered (freehold/leasehold) - Identifies the property - Shows physical area of land subject of reg - Gives details of rights benefiting land

Answer 8

- States the class of title which is registered - Gives name/address of proprietor - Personal covenants can be noted on this register

Answer 9

- Contains details of charges/incumbrances currently affecting the title - Burden of easements,covenants binding the title - Covenants purely personal in nature noted on proprietorship register - Details of mortgages

Answer 10

interest binding on a proprietor of registered land even though they did not appear on the register irrespective of notice

Answer 11

- Sch 1 LRA 2002 - Leases for 7 yrs or less - Interest belonging to a person in actual occupation - Legal easement/profit - Local land charge

Answer 12

1. Registered charges 2. Unregistered charges overriding disposition 3. Interests which must be protected by an entry on the register

Answer 13

- Sch 3 LRA 2002 - Leases for 7 yrs or less - Legal easement/profit - Local land charge

Answer 14

- Interest under a settled land act settlement - Interest of a person of whom enquiry was made before the disposition and failed to disclose when reasonably expected to do so - Interest unobvious on reasonably careful inspection of land - Lease granted to take effect in possession more than 3 months after the date of grant, had not taken effect in possession at time of disposition

Answer 15

Easements expressly granted on or after 13 Oct 2003 can never be overriding

Answer 16

Index map search form SIM (reveals whether land is reg/subject to pending reg/caution against first reg) - Examination of docs supplied in the abstract/epitome, checking that - Root doc as provided for by the contract - Unbroken chain of ownership beginning with seller in root doc, ending with present seller (no apparent breaks in chain) - No defects in title adversely affecting buyer’s title - Verification of original deeds - Checking for evidence of occupiers - Pre-completion searches - Whether any transaction in title history should have triggered first reg

Answer 17

- Root of title - Links in the chain - Stamp Duty - Description - Incumbrances - Execution - Searches

Answer 18

Cannot be produced in evidence in civil proceedings Evidenced by embossed stamp placed on the deed

Answer 19

buyer entitled to insist the seller remedies such deficiency at their own expense

Answer 20

Contractual provisions requiring buyer to meet the cost of rectifying the defect will be void s117, Stamp Duty Act 1891

Answer 21

Conveyance is liable to AV duty according to the amount of consideration Conveyance on sale which does not have a certificate of value, not bearing AD stamp has been stamped incorrectly

Answer 22

- Conveyance/gift transfer/assent by which property is passed by personal rep or beneficiary under a will executed after 30 april 1987 are exempt from SD - Requires certificate that they are categorised as being exempt under SI 1987/516

Answer 23

- FFA 1931 provided that certain docs be produced to HMRC with form of particulars and any consideration stamped with PD stamp - Without PD stamp, doc was not properly stamped and the person who failed to produce it fined - Docs requiring PD stamp Conveyance on sale of freehold Grant of lease for 7 years or more Transfer on sale of a lease of 7 years or more

Answer 24

to correspond with contract and is consistent throughout the epitome - Deeds may show parts of land included in root doc as having been sold separately - Copies of any plans referred to should be obtained, even if they are pre-root

Answer 25

- Solicitor to check incumbrances are not disclosed by deeds other than those disclosed in the contract - Copies of covenants, easements, other burdens affecting land should be supplied - Burdens checked to ensure they have not been breached/impede Cl’s proposed use for the property

Answer 26

- Solicitor should check that all deeds/docs have been properly executed - For transfer of legal estate, requirements for execution of deed must be satisfied

Answer 27

Correct, clear searches must be made against all estate owner names - Whether search was made in the correct name as set out in the deeds - Whether the search was made for the full period of ownership - Whether search following transaction was made within the priority period - Whether old/new names were searched in cases of name changes

Answer 28

Disposition must be made by all trustees (min 2) Buyer must pay to all trustees (2 individuals or trust corp) to take land free from equitable interests

Answer 29

buyer must insist a second be appointed to overreach the interest of beneficiaries

Answer 30

Enjoys broad powers such as trustees of land If there is only one PR, they have the powers of two or more and can convey land on their own, giving valid receipt for the proceeds of sale Buyer must call for grant to see who has or have been appointed PR and insist all PR named in the grant join in the assent/conveyance or call for evidence of the death of any PR

Answer 31

Provided buyer deals with registered proprietors and complies with restrictions on the register, they will get good title

Answer 32

grant of probate- If buyer takes transfer from all proving PR and submits an office copy or certificated copy of grant with application for registration, buyer will obtain good title

Answer 33

Assent made by PR must be in writing to pass legal estate in land to B

Answer 34

- Provides protection for buyer purchasing from PR - Based on the premise that PR (not dealing with their own property, with large complicated estate) likely to attempt to dispose of the same property twice

Answer 35

Conveyance contains statement given by PR that they have not made any previous assent or conveyance of that same land - no memorandum of prev conveyance or assent of land is endorsed on the grant - Any prior disposition is not for valuable consideration

Answer 36

- Inspect grant of probate to check authority of personal representatives - Ensure all proving personal reps are joined in conveyance - Check grant of probate contains no memorandum of prior disposition of land - Check conveyance contains s36 statement

Answer 37

- If co-owners are tenants in common in equity → restriction on proprietorship register - In the event of death of a co-owner, second trustee is appointed to join with the survivor in transfer - If seller can prove they are sole and beneficially entitled to the whole legal & equitable interest, buyer can deal with them alone - proof of death must be provided

Answer 38

- No restriction placed on register - Buyer can generally deal with survivor alone on proof of death (of deceased co-owner) - Pre-contract searches and enquiries reveal info as to occupiers

Answer 39

- Buyer from survivor should insist on taking conveyance from 2 trustees to overreach beneficial interests subsisting under the trust - If survivor has become solely & beneficially entitled to whole legal & Equitable interest, they may convey alone as sole owner on proof to the buyer of this fact - Certified copy of grant of probate and assent made in favour of survivor

Answer 40

- Survivor entitled to whole legal and equitable interest - Buyer accepts conveyance from survivor if they are satisfied they will benefit from protection of Law of Property (Joint Tenants) Act - JT could have been severed into a TIC - Act allows buyer to assume no severance has occurred before death of deceased joint tenant, if transfer by surviving JT to buyer contains a statement that surviving JT is solely and beneficially entitled to the land and neither of the following has occurred before transfer date - Memorandum of severance endorsed on conveyance to JT - Bankruptcy proceedings registered against either JT at Land Charges registry - If following applies, surviving JT to be treated as surviving TIC

Answer 41

- Deleted from charges register -no concern to buyer - Effected by filing DS1 form at LR - Buyer should raise requisition requiring it to be removed

Answer 42

- Provided by seller and checked by buyers solicitor to ensure discharge was validly effected - Where lender has exercised POS → no receipt

Answer 43

Provided that receipt is in the prescribed wording by Building Societies Act 1986 and signed by person authorised, receipt may be treated as proper discharge without further enquiries

Answer 44

- Receipt endorsed on mortgage deed operates to discharge mortgage, provided it is signed by lender and names person making repayment - Where money appears to have been paid by person not entitled to immediate equity of redemption, receipt usually operates as transfer of mortgage

Answer 45

May be necessary for seller to give someone POA to execute docs on their behalf (eg seller is going abroad and unavailable when docs need to be signed)

Answer 46

- General power (s10, Powers of Attorney Act 1971) entitling attorney to deal with all of donor’s assets - Special power permitting attorney to deal with only certain specified/categories of assets - Trustee power where property is held on trust - Enduring power (endures through donor’s mental incapacity) - Lasting power (has replaced enduring power)

Answer 47

POA may be revoked expressly by donor/automatically on donor’s death, mental incapacity or bankruptcy. Once registered, enduring powers are irrevocable except by court order

Answer 48

power - Authorises transaction which is to take place between attorney and buyer - Is valid and subsisting at date of completion of the transaction

Answer 49

General power of attorney (s10, POA 1971) entitles attorney to take any action the donor could have taken with regard to any of the donor’s property

Answer 50

- Obtains protection of s5(4) POA 1971 if - Dealing between attorney and the person who dealt with them took place within 12 months of the grant of power, or - The person who dealt directly with the attorney made a statutory declaration before or within 3 months of completion of a purchase by C to the effect that they had no knowledge of the revocation of the power - If either apply, presumed in favour of buyer that person who dealt with attorney had no knowledge of the revocation and will obtain good title

Answer 51

- Search at office of public guardian, ensuring no application for registration of power is pending - If pending, this suggests mental incapacity on the part of the donor - Buyer should wait until registration has been completed - Once registered, attorney to produce registration certificate to buyer

Answer 52

- Give attorney the power to deal with matters when donor has no capacity - Required to be in prescribed form- effected when registered at OPG - Obtain office copy of the power from OPG as evidence that lasting power has been registered and check attorney is acting within scope of their authority

Answer 53

- They knew the power was invalid - Were aware of circumstances terminating attorneys authority to act

Answer 54

Consideration received significantly less than OG purchase (gifts, inter-spouse transfers, marriage breakdown)

Answer 55

- Buyer acquired property, had notice of insolvency and that disposition was at an undervalue - Buyer was connected with or an associate of co who made the OG transaction at an undervalue. associate is widely defined to include persons spouse, ex spouse, members of family, members of spouses family, their partner/their family and employees - Registration of bankrupycy = notice (buyer needs to make bankruptcy search against individual making undervalue transaction for 5 years from date of transaction)

Answer 56

Instructions may reveal buyers intended use after completion causes a breach of existing covenants (eg to prevent use of property except as a single private dwelling house and cl wants to convert it into flats)

Answer 57

1. Check covenant has been registered 2. See wording of covenant to see it has been annexed effectively to the land and is binding 3. Obtain insurance policy covering future breaches

Answer 58

1. Copy of doc imposing covenant/exact wording 2. Exact nature of the breach occured/action contemplated which will cause breach 3. Date when covenant was imposed 4. Whether or not covenant is registered 5. Nature of other properties in the immediate neighbourhood (risk assessment) 6. Planning permission permitting development 7. Steps taken to trace person with benefit of C and enquiry results

Answer 59

If insurance has been obtained, usually single premium policy (single sum paid) Benefit can be passed on to successors

Answer 60

Approaching benefittor of covenant They may be prepared to modify/release the buyer from the covenant or consent to a particular activity Pay them for modification, release or consent Application to upper tribunal (lands chamber) may, under s84 LPA 1925 grant modification or discharge of restrictive covenant (may not be cheap)

Answer 61

agreements affecting trade within UK and which prevents, restricts, or distorts competition within the UK

Answer 62

- Restriction preventing high street retail unit being used for sale of same products sold in premises adjacent - Restrictive covenant on sale of land not to sell to sellers competitior - Covenant by landlord not permitting another business of the same type as T to open in its shopping centre - Unless the covenant has an appreciable effect on the market affected, it will not fall within competition legislation (scope of market, degree of market power)

Answer 63

CMA can impose up to 10% of firms turnover if it discovers prohibited restriction - also void and unenforceable

Answer 64

- It is signed by its maker - The signature witnessed and attested. - Clear the doc is intended to be a deed (description of doc as a deed or doc is expressed to be executed as a deed)

Answer 65

- Affixing co seal - Clear on the face that it is intended to be a deed - Affixed in the presence of and attested by 2 members of the board - Signed by director and sec or by 2 directors, provided doc is expressed to be executed by the co - Must be delivered as such - Presumed unless it can be reubtted

Answer 66

buyer must make requisitions within 6 working days of the later of exchange/delivery of epitome