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SQE1 - Property Practice 🏠 > 2. Investigating Title, Buyer's Pre-Contract Searches, Town/Country Planning, Buyer's Funding (Stage 2); Exchange of Contracts (Stage 3) > Flashcards

2. Investigating Title, Buyer's Pre-Contract Searches, Town/Country Planning, Buyer's Funding (Stage 2); Exchange of Contracts (Stage 3) Flashcards

1
Q

Searches and Enquiries

What must a seller’s solicitor do if they discover there has already been a triggering event in relation to unregistered property they are dealing with, and when?

A

Make an application to HMLR before drafting the contract

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2
Q

Searches and Enquiries

What are the six pre-contract searches which are always carried out?

A
  1. Local search
  2. Drainage and water search
  3. Desktop environmental search
  4. Index map search
  5. Chancel Repair search
  6. Bankruptcy search (if buyer is borrowing)
  7. Company search (if seller is a company)
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3
Q

Searches and Enquiries

What will a desktop environmental search reveal?

A

Based on historical records and will indicate whether the property has been used for potentially contaminative land uses.

Also contains
* likelihood of flooding
* susceptibility to natural subsidence.
* industrial land uses within 250 metres of the property

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4
Q

Planning Law

Under the Town and Country Planning Act 1990, planning permission is required for any development. In what two ways is development defined?

A

Defined under section 55:
1. Operational - Building, engineering, mining or other operations with regard to land, or
2. Material change of use of any buildings or other land

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5
Q

Planning Law

What is a permitted development?

A

A development which has deemed permission and is exempt from applying for express permission.

  • Check for Article 4 Direction

Include developments within the curtilage of a dwelling house (such as extensions below a certain size) and minor operations
(such as painting the exterior of a building or installing a CCTV camera)

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6
Q

Planning Law

What are some examples of permitted developments, i.e. developments with deemed permission?

A

Small home extension, porch, fence, conservatory

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7
Q

Planning Law

What is the effect of a local authority passing an Article 4 Direction?

A

It revokes the permitted development exception for the relevant area.

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8
Q

Planning Law

What is the consequence of planning issues running with the land?

A

The buyer is liable for any planning issues relating to land purchased.

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9
Q

Planning

What is the extent of the listed status where a building is listed?

A

It covers everything within the curtilage

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10
Q

Planning Law

Within what time limit of breach must a local authority bring an planning enforcement action regarding a listed building?

A

There is no time limit

(cf. non-listed buildings where time limits apply)

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11
Q

Planning Law

What is a use class?

A

A category of use describing the activities of the building.

Planning permission generally required to change use class, even if no building work is being done.

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12
Q

What are the various use classes?

A

B2 – general industrial

B3 – storage and distribution
C – residential uses
* hotels (C1)
* dwelling houses (C3)
* houses in multiple occupation (C4)

E – commercial, business and service
* Retail sale of goods, other than hot food
* Sale of food and drink for consumption on the premises
* Financial and professional services
* Uses which can be carried out in a residential area without detriment to its amenity (i.e. offices w/ adminstrative functions/R&D)

F – local community and learning: learning and non- residential institutions/essential cornershops.

Sui generis - one of a kind
* drinking establishments
* entertainment establishments
* hot food takeaways

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13
Q

What are the two functions achieved by the buyer’s solicitor submitting a clear Certificate of Title to the lender?

A
  1. Confirms to lender that title is good and marketable
  2. Requests a release of the mortgage advance
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14
Q

What two steps does the process of perfecting the mortgage involve, and who does it?

A

Buyer’s solicitor will:

  1. Apply to register the title to the property after completion
  2. Ensure the lender’s legal charge is registered as a first legal charge on the Charges Register.
    * If company, also registered at CHs.
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15
Q

When is Formula A used for exchange and what is a quick way to remember this?

A

When one solicitor holds both signed parts of the contract.

Remembered because one solicitor is Away and the other is doing All the work

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16
Q

How is the interest in a sale contract protected after exchange, where land is (1) registered and (2) unregistered?

A

Registered: Notice placed on the seller’s charges register

Unregistered: C(iv) estate contract registered against the seller’s full name

Both are removed upon completion.
* only done where time period between completion and exchnage is extended.

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17
Q

How is a contract varied after exchange?

A

Both parties must exchange contracts again with the new variation.

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18
Q

Searches and Enquiries

What occurs if there is an error in the official search certificate and what remedy is available?

A

Buyer is still bound by what should have been on the report, even if unaware of it, however they can claim an indemnity from HMLR

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19
Q

What are the two types of forms used when (1) whole of the land and (2) part of the land in a title is being transferred?

A
  1. Whole: TR1 Form
  2. Part: TP1 Form
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20
Q

In a chain of transactions, what amendments are advisable to ensure these are well synchronised?

A
  1. Amend standard condition to different completion time (2:00pm) for one of the transactions.
  2. Provide for one exchange to be contingent of the other.
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21
Q

In a freehold transaction, at what stage do parties become generally become bound?

A

On exchange

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22
Q

Under the standard conditions in freehold transactions, does the risk of damage/destruction remain with the seller?

A

No, it passes to the buyer.
- amendable under SCs

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23
Q

Why should existing mortgages not be included in the specified list of specified encumbrances?

A

Existing mortgage is expected to be discharged by completion.
- No longer burden the land when buyer acquires it.

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24
Q

At exchange, when would a solicitor use Formula C of Law Society Conveyancing Protocol ?

A

where there is a chain of transactions.

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25
At exchange, when would a solicitor use Formula A of Law Society Conveyancing Protocol ?
Where one solicitor holds both signed copies of the contract. - most likely be the Seller’s solicitor.
26
What is the most common means of exchanging contracts?
Telephone under Formula B
27
# *Searches and Enquiries* How is title guarantee different from class of title?
Title guarantee - relates to guarantee that seller can give about the title and incumbrances and assurance they will assist buyer to transfer it. Class of title - relates to the quality of title itself.
28
# *Searches and Enquiries* What key information will Local searches (CON290/CON29/LLC1) not reveal?
Information on neighbouring/adjoining properties. - ie. proposals for change of use/construction works (may affect enjoyment of own property!)
29
What information is specifically disclosed via **form CON29** (standard enquiries)?
- planning permission (ie. pending/refused/granted) - building regulations approval and certificate of past works. - adoption of roads and footpaths - public rights of way over the property - contaminated land notice - Any enforcement action taken by local authority to date.
30
# *Searches and Enquiries* What information is specifically disclosed via **form CON29*O*** (optional enquiries)?
**Common land** and village greens inquiry Where property is located in rural area, may reveal that land give public rights to use property for specific purpose. - cannot build on common land, and will affect enjoyment of land.
31
# *Searches and Enquiries* What information is disclosed in **Form LLC1** (standard enquiries)?
Local Land **Charges** (LLC1) 1) General and specific **financial** charges 2) **Planning** charges Planning permission, enforcement and stop notices, changes of use, smoke control order, Article 4 Directions, tree preservation order. 3) **Listed building** charges Conservation areas, listed buildings building status
32
What is the purpose of a **Water and Drainage Search** search?
* Confirms whether property's foul and surface water drains to public sewers (aka- 'adopted'). * Connection to a main water supply. * Reveals whether local water authority owns any assets on property (ie. sewers) - form **CON29W**
33
# *Searches and Enquiries* When should a **coal mining search** be conducted?
where the property is located in an affected coal mining area, search establishes any historical or future mine or mineral extraction. - form **CON29M**
34
# *Searches and Enquiries* When should a **company search** be conducted, and what information does it disclose?
If the seller is a company. 1. Checks whether company still exists; 2. Affected by any insolvency proceedings; 3. Has granted any fixed/floating charges over its assets; 4. Whether company's own Constitution allows for the transaction; 5. Identifies its directors - which are the only parties authorised to transact on its behalf. - conducted online via CO HSE
35
# *Searches and Enquiries* When is an **index map search** conducted?
mainly where land is unregistered - provides for any cautions against first registration and pending applications. for registered land, ony if: 1) Where the property is comprised in more than one registered title; **or** 2) possible mines/minerals registered under a different title number.
36
Which document provides is the most reliable source of good root of title?
conveyance! * provides 'double' guarantee that title was investigated prior to its purchase. * cf. mortgage = will not contain incumbrances * deed of gift or assent = no double-gurantee'
37
# *Searches and Enquiries* What is the effect of a **caution against first registration** recorded on the Land Charges Register?
Obliges the registrar to **notify** the cautioner of any application for first registration of land. *and* Cautioner has **15 days to object.** * Then, gives buyer 15 day *priority* period. * Should also be conducted at pre-completion .
38
What process should be followed when conducting a Land Charges Register search?
Search: 1. Against all owners mentioned in documents in epitome of title. 2. Against ownership period (if unclear, as far back as relevant date could have owned property, or 1926). 3. Against all versions of names contained in deed and correct counties (including historic counties!)
39
# *Searches and Enquiries* What are three solutions for **problematic restrictive covenants**?
1) **Indemnity insurance** 2) Ask beneficiary for **permission** If refused... 3) Apply for Upper **Tribunal**
40
# *Searches and Enquiries* What information is disclosed from a **desktop environmental search**?
* whether property is likely to be classed as 'contaminated land' * information relating to ground stability, flooding, and industrial use within 250m of prop.
41
# *Planning Law* What are the four possible solutions where a search reveals that a seller has not complied with building regulations?
1) Require for seller to obtain a regularisation certificate. 2) Indemnity insurance at the seller's expense) 3) Conduct a survey of building works (since no time limit for injunctions if unsafe) 4) Withdraw from transaction if issue is too substantial
42
# *Planning Law* What losses does indemnity insurance not cover?
Only covers financial loss from enforcement, but **not cover** instances of **death/personal injury.**
43
# *Planning Law* What is the enforcement period for breaches of building regulations?
*Where works are safe:* **Up to 1 year** from completion of the work (w/ **28 days to remedy** breach) *Where works are unsafe: * **No time limit** to obtain injunction
44
# *Planning Law* What is the **enforcement period** for breaches of planning permissions?
10 years from start of breach
45
46
# *Planning Law* What is the enforcement period for unauthorised changes of use?
**4 years** from breach for change of use into single dwelling house **10 years for any other** changes of use
47
# *Planning Law* When is obtaining a building regulation approval necessary?
- material change in buildings whole use - erection/extensions of building or service/fitting (ie. window/boiler, electrical/plumbing installations) - Substantial remodelling (even if internal)
48
# *Planning Law* When is a **stop notice** served?
issued after enforcement notice has been served Require specific activity to stop immediately (ie. unauthorised use) - Criminal offence ≠ comply - no right to appeal - effective for 28 days after being served - suspended if recipient appeals it
49
# *Planning Law* What is the key difference between an **enforcement** and a **condition** notice?
**Condition notice** is served where there is a breach of condition attached to planning permission, and no right to appeal. **Enforcement notice** applies to cases where planning permission was never granted to start with.
50
# *Planning Law* When is a **completion notice** served?
Issued if local authority is concerned development is **taking too long/stalled** and gone **past timeline** specified.
51
# *Planning Law* What information must an **enforcement notice** set out?
- nature of breach - steps required - time to remedy
52
# *Plannning Law* When will a **contravention notice** be served?
To **obtain further information** about any operations or activities on property that may constitute planning breaches.
53
# *Plannning Law* Which **notices** relating to breach of planning/building regulations can be **appealed**?
Enforcement notices only
54
# *Plannning Law* What are thre implications where works are carried out on a **Listed Building** without planning permission?
* no time limit for enforcement action * criminal sanction against perpetrator * new owner will have to rectify the works
55
What are the consequences of not complying with an enforcement notice in relation to planning permisson?
Local authority may impose fine, enter land to do and carry works out themselves at owner's expense.
56
# *Plannning Law* What should a landowner do if they are **doubtful** as to whether **Article 4** excludes certain forms of development?
Obtain guarantee from local authority by applying for **certificate of lawfulness**
57
# *Plannning Law* What development is permitted by statute (GDPO)?
1) Carrying out of maintenance, improvement, and other alterations which: (i) only affect the interior of any building; *or* (ii) do not materially affect its exterior. 2) Use of any building or other land in property's curtilage (aka immediate surrounding) for any use incidental to the dwelling house (ie. conservatory, greenhouse) 3) Non-material change of use. 4) Demolition, if not in a conservation area.
58
What are the possible consequences faced by a seller who misleads or conceals defects from buyer?
Liable under misrepresentation = gives B ability to rescind contract. Damages = only recoverable if there is a material difference between the representation and actual description/value of prop.
59
Why are mining searches important?
Property located in vicinity of mine may face potential structural stability issues.
60
When is a utility providers search appropriate?
If the property is a new development or a site for development
61
What is the purpose of carrying out a Canal & River Trust search?
reveals any liability for repair, rebuilding, or maintenance of water ways, banks, and towpaths.
62
In what context would conducting a bankruptcy/insolvency search at pre-exchange be appropriate?
Where a lender is involved
63
What is the purpose of carrying out a **chancel repair search**?
Reveals whether property is or is likely to be affected by liability to contribute towards costs of repairing/maintaining chancel of medieval parish (in its vicinity). No longer issue an overriding interest if prop was sold on or after 13 October 2013, unless notice appears on charges register.
64
After how many years can a landowner with **possessory title upgrade** to absolute title?
12 years
65
How might one acquire a **qualified title**?
Class of title where proprietor's ownership has been established only for a limited period, or is subject to reservations e.g. title documents = missing when registered.
66
How might one acquire a **possessory title**?
title based on factual possession of the property. ie. adverse possession Risk of someone bringing a claim who has a better title.
67
What is the purpose of Form HR3?
used by a **mortgagee** seeking **repossession** of the property subject to the mortgage. - purpose is to search the register as to whether **any home rights notice** have been registered or applied for. - submitted to HM L.R, and search result confers a **priority period of 15 days.**
68
# *Searches and Enquiries* What function does the National Land Information Service serve?
provides a single point of enquiry for making pre-contract searches
69
# *Searches and Enquiries* What requirements are prescribed by the Law Society Conveyancing Protocol for commercial transactions regarding the drafting of the contract for exchange?
Should be based on the **latest edition of the Standard Conditions of Sale** with only such additional clauses as are **absolutely necessary** for the purposes of the transaction.
70
# *Plannning Law* What uses fall within class E?
* shop * financial and professional services * business (offices, research, light industry) * non-residential intsitutiions (ie.medical/health services, day nurseries) * Assembly and leisure (gym) * Food and drink on premise
71
# *Plannning Law* What uses fall within class F?
F.1 - education, art, gallery, museums, public library, places of worship, courts F.2 - shop up to 280 sqm, community hall, swimming pool, skating rink
72
# *Plannning Law* What uses are considered *sui generis*?
* pub, wine bar, drinking establishment * hot food takeaway * cinema, concert/dance hall, live music venue
73
# *Searches and Enquiries* What does a K15 search relate to?
bankruptcy search
74
# *Searches and Enquiries* What is the purpose of conducting a **Highways Search**?
Search result includes plan showing proximity of property to a public highway. * Reveals whether a gap exists between property and public highway. * If so, one must look at whether prop benefits from private right of way over strip.
75
# *Searches and Enquiries* What is the purpose of conducting a **Railways Search**?
Reveals whether buyer may be liable for payments to maintain the boundary features. * conducted where property is close to National Railway,
76
# *Searches and Enquiries* What should a buyer request from the seller where there are missing covenants?
Provision of indemnity insurance by the seller

SQE1 - Property Practice 🏠 (4 decks)

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