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Cemap 2&3 Self Testing > 5. Practical Aspects Of Property And Mortgage Law > Flashcards

5. Practical Aspects Of Property And Mortgage Law Flashcards

1
Q

Is the registration of land compulsory?

A

Yes. There is some unregistered land in existence, but first registration must take place when one of the following occurs:

  1. Transfer of ownership
  2. Mortgage raised on property
  3. Lease is granted for more than 7 years
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2
Q

What does the Property Register provide details on? (3)

A
  1. The Land
  2. Title Number
  3. Plan of the property

this is the LR search we use in work

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3
Q

What does the Proprietorship Register provide details on? (4)

A
  1. Name, Address & estate of the owner
  2. Nature of the title/class (e.g absolute)
  3. Date of registratiom
  4. Restrictions on ownership

Section B of land reg search in work

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4
Q

What does the Charges Register provide details on? (4)

A
  1. Rights of mortgagee (lender)
  2. non-owning spouse’s interest (e.g consent to mortgage)
  3. Negative Easements
  4. Restrictive covenants
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5
Q

What are the 5 classes of title in order of most to least secure?

A
  1. Absolute
  2. Good Leasehold
  3. Possessory
  4. Squatter’s Rights (technically not a title, but fits here in the order)
  5. Qualified title
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6
Q

What is a title absolute?

A

Clear title, either a freehold or

Leasehold of 21+ years where both freehold and leasehold can be proven

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7
Q

What is a good leasehold?

A

either:

leasehold itself is good but freehold is in doubt

or the freeholder has not provided evidence of their ownership to land registry

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8
Q

What is a possessory title?

A

Granted when applicant is unable to produce the title deeds when the property is first registered, instead providing a copy document to land reg. Owner will be registered as the owner, but they are not protected from someone else claiming they were the owner first later down the line.

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9
Q

Do lenders lend on possessory titles?

A

Most will, but only on condition that there is indemnity insurance to protect their interest

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10
Q

What is Adverse possession?

A

Another name for squatters rights.

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11
Q

Using adverse possession, how can the following be obtained on unregistered land:
1. Possessory title
2. Title Absolute

A

There is no legal owner, so no one can be contacted, you have to sit and wait to see if anyone puts a claim in

  1. Intentionally occupy without owner objecting for 12 years
  2. once the possessory title has been held for another 12 years it gets upgraded to absolute
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12
Q

How can you claim registered land using adverse possession? What title will be granted?

A

Intentionally occupy for 10 years without the legal owner objecting
then, apply to land reg for ownership. They will serve notice to the owner. If the owner objects, you can’t have it. If they don’t, you get title absolute.

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13
Q

In what circumstances can you still claim adverse possession of a registered property, even if the owner objects? (3)

A
  1. if it would be unreasonable to deprive the applicant of the property
  2. Applicant has a valid claim to the property
  3. Applicant occupied the property reasonably believing it to be theirs
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14
Q

What is a Qualified title?

A

Very rare. Occuras when there is a defect in the title so absolute or good leasehold cannot be granted.

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15
Q

What is the Priority Period and how long is it for?

A

The amount of time within which a property on already registered land should be registered after completion. Usually within 30 days. (guidance not legal requirement, the new owner’s priority is protected in this period, if left longer you risk someone else being able to claim it)

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16
Q

How long do you have to regsister unregistered land after it is transferred? What happens if you don’t register within this period?

A

Two months - if longer, transfer is void and ownership reverts back to previous owner

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17
Q

What is the root of title?

A

When a conveyencer has to conduct searches on the charges register of at least 15 years on unregistered land to try to establish good title

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18
Q

What is ‘running with the land’ & which types of rights and obligations does it affect? (2)

A

When rights and obligations are passed on to all subsequent purchasers.

  1. Easements
  2. Restrictive covenants

Positive covenants - only affect the first buyer. Any further sales, it is up to the current owner whether to pass it on.

19
Q

What are easements? are they positive or negative?

A

The right one property has over another. Can be positive or negative

20
Q

What is:
1. a positive easement
2. a negative easement

A
  1. right to do something
  2. right to stop neighbour from doing something
21
Q

Can a positive easement be a burden on the servient?

A

no, but the only exception is to demand the land is fenced

22
Q

What is an example of easement by necessity?

A

Encirclement

23
Q

are the following positive or negative easements?
1. right of way
2. right to light

A
  1. positive
  2. negative
24
Q

Define the following:
1. Dominant tenemant
2. Servient tenemant

A
  1. Person who’s land has a right over the other
  2. Person who own’s the land which the other has right over
25
Q

How can an easement be removed? (3)

A
  1. Same person takes charge of the dominant and servient land
  2. Reaches a formal expiry date
  3. The dominant agrees to terminate by deed
26
Q

What is implied release (easements)?

A

The dominant has not used the easement for over 20 years, so it is released

27
Q

What is a covenant?

A

Restrictions or conditions placed by the landowner on those who later own it

28
Q

Who is the beneficiary of a covenant?

A

The person who initially created it, or their heirs

29
Q

Do easements and covenants apply to just one property or more than one?

A

easements - apply to at least 2 properties, there has to be a dominant and servient
covenants - apply to just one property and it’s owner

30
Q

What are:
1. positive covenants
2. restrictive covenants

A
  1. What a future owner must do
  2. What a future owner must not do
31
Q

True or false, positive covenants must contain a burden?

A

True. An example is, to be able to use a road, the owner must upkeep it

32
Q

How are restrictive covenants used by developers? (2)

A
  1. to stop the buyers from making alterations that go against local authority restrictions, as the L.A could sue the developer for this
  2. to stop the buyers from doing anything that could harm the reputation of the developer, e.g. changing the appearance of the building, not maintaining the garden, not converting the parking
33
Q

What is chancel repair liability? What is the name for people who own land affected by this?

A

liability to repair the area surrounding the alter of a church. Landowners called lay rectors

34
Q

Can the Parochial Church Council register chancel repair liability on:
1. Registered Land
2. Unregistered Land

A
  1. They had until 2013 to do this, if they failed to do so, they can still registered it but not with the current owners. They must wait until the property is next sold.
  2. No. They can only register a ‘caution’ with land reg, asking for them to be notified if the property is ever registered. If they fail to register a caution and the property gets registered, they lose all rights to it.
35
Q

What do title guarantees give us information on? Who is effected by them in what they can do?

A

They tell us whether the property is free from any charges and encumbrances (restrictions/limitations) . Depending on the type of title guarantee, the vendor may be restricted on what they can do.

36
Q

What is a full title guarantee and what affect does this have on the transfer of property?

A

The property is completely free from charges and encumbrances (limitations or restrictions).

The vendor has the right to sell the property but must do all they can to give the purchaser the title they require (eg. providing details relating to land reg)

The vendor must sell free from any charges and encumbrances & free from any rights exercisable by third parties (other than those which they could not reasonably be expected to know).

37
Q

What is a limited title guarantee and what affect does this have on the transfer of property?

A

There are some guarantees but not all.

The vendor has the right to sell the property but must do all they can to give the purchaser the title they require (eg. providing details relating to land reg)

The vendor has to guarantee that they have not created any charges/encumbrances since they acquired the property and that as far as they are aware, no one else has done so either.

38
Q

What is a registered interest in property? Which register does it get registered with?

A

Where only one spouse is registered as the owner of a property, the non-owning spouse can register an interest. This would prevent the property from being sold or transferred.

Registered land - Charges register
Unregistered land - Land charges register

39
Q

According to the Family Law Act and Civil Partnership Act, what rights do non owning spouses and adult children have over property?

A

The right to occupy (if they already live there) or the right to access or occupy (if they don’t yet live there)

40
Q

What are a lender’s options following title searches? (4)

A
  1. Decline to lend at all
  2. Insist on a re-valuation based on the restrictions revealed
  3. Take appropriate steps - more searches, consent to mortgage form
  4. Take out indemnity insurance - protects the lender’s security against a defective title
41
Q

What is the role of the mortgage deed?

A

To set out right and obligations (t&cs) of the mortgage, including the lender’s rights and the borrower’s covenants (things they promise to do, which the lender can enforce).

42
Q

What are the lender’s rights set out in the mortgage deed? (7)

A
  1. Levy CHARGES
  2. CALL in the Debt
    (if they default, or a compulsory purchase order is made)
  3. Meet statutory CONDITIONS
    (if borrower doesn’t meet legal/LA conds, lender can do so instead)
  4. LET the property
    (if repossessed)
  5. INSURE the property
    (if borrower fails to, then charge borrower for premiums)
  6. Make FURTHER Advance
    (without new application)
  7. TRANSFER the mortgage
    (to another lender if borrower consents)
43
Q

What are the borrower’s covenants set out in the mortgage deed? (7)

A
  1. Make PAYMENTS
  2. INSURE the property
  3. Comply with LEGISLATION
    (e.g. LA)
  4. Seek consent before LETTING
  5. REPAIR & ACCESS
    (maintenance and allow lender access for inspection at reasonable times)
  6. TITLE conditions
    (comply with things like easements, restrictive covenants etc)
  7. LEASEHOLD
    (comply with terms of lease)

Cemap 2&3 Self Testing (29 decks)

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