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prop > 6. Unreg titles > Flashcards

6. Unreg titles Flashcards

1
Q

DATE FOR COMPULSORY REGISTRATION (relevant date)

A

1 Dec 1990

  • all areas declared subject to compulsory first registration
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2
Q

What if sale or mortgage after 1 Dec 1990 (relevant date)

A

TITLE TO PROP SHOULD HAVE ALREADY BEEN REG

  • S must apply retrospectively for title to be reg (at S’s expense)
  • then sale can proceed (as reg. land purchase)

(NB. S does not have legal title if S failed to reg. title, legal title still with previous owner!)

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3
Q

date for compulsory reg for a gift or assent of freehold estate

A

1 April 1998

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4
Q

COMMON MISTAKES in EXAM

A
  • check variations of names and spellings in CLC checks (need new one?)
  • CLC search on ALL names in conveyance (start and end page) but NOT names in contents page of epitome (not legally binding)
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5
Q

S.C.A.R.E.D

A

Searches

Covenants & Easements

Ad valorem/cert. of value (& PD stamp)

Root of title

Execution

Discharged mortgage

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6
Q

Searches to be done

A

CLC SEARCH

  • against full name of estate owners revealed in epitome
  • cover full period of ownership
  • completion within protection period

COMPANY SEARCH

INDEX MAP SEARCH (over being land purchased and relevant adjoining land)

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7
Q

COVENANTS

A

PC

  • indemnity covenants?
  • past breach? - get S to fix (or reduce purchase price)
  • future breach? - insurance/PWB consent (can’t get PWB consent if insurance for RC)

RC

  • is there one?
  • D(ii)?
  • Indemnity covenants?
  • past/future breach?
  • insurance, PWB consent, UT(LC)
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8
Q

easements

A

benefit? burden?

if benefit -

  • reg land = charges reg
  • un reg = S’s solicitor must reg caution against first reg (notifies owner of land with benefit to apply to have burden on Charges reg when servient land reg)
  • [granted by deed, s.62 LPA, impliedly (e.g. by necessity), or acquired by prescription, or under rule of Wheeldon v Burros in sale of a part]

any easements in process of S acquiring?

  • e.g. by prescription
  • get formal statement signed in front of solicitor from S for how long they’ve had the right and add your client as continued user
  • send to LR after amount of time has passed to acquire it
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9
Q

ad valorem/cert of value & PD

A

Either but never neither ad valorem or cert of value

PD: always

if no stamps - S applies for late stamping and pays penalty/interest

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10
Q

root of title

A
  1. Be dated at least 15 years before exchange (now should be, before 1 Dec 1990 - otherwise should be reg)
  2. Adequately describe the property so property can be identified (TO SCALE plan - LR rejects not to scale)
    - can be in conveyance or by cross-ref to a pre-root conveyence
    - acceptable if earlier doc is in epitome (s.45 LPA)
  3. Deal with [seller’s] legal and equitable interest
    - if by deed (s. 52 LPA), must be validly executed and stamped so legal interest passed to seller (presume equitable interest overreached)
  4. Cast no doubt on [current] seller’s title
    - doubt if:
    - missing power of attorney,
    - no evidence of death (missing copy of grant of probate if sale by executor),
    - no evidence of change of name (missing marriage certificate)

(if not stamped properly, title does not pass until validly stamped so not a good root)

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11
Q

execution (if before or on 31 July 1990)

COMPANY

A

seal witnessed by 2 directors

OR

Director and CS

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12
Q

relevant date for execution rules changing

A

before or on 31 July 1990 = old rules

after 31 July 1990 = new rules

LP(MP)A 1989

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13
Q

execution (if before or on 31 July 1990)

individual

A

signed, sealed, and delivered (with witness)

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14
Q

execution (if after July 1990)

individual

A

Executed as a deed and delivered (with witness)

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15
Q

execution (if after July 1990 but before CA 2006)

company

A

Executed ‘by’ the company by signature of 2 directors (or 1 dir and 1 CS)

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16
Q

execution (if after CA 2006)

company

A

Use either pre or post 31 July 1990 rules

OR

1 director in presence of witness (or whatever articles say)

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17
Q

discharged MORTGAGE

A

Bank/building society receipt

dated and signed by the lender, borrowers name as paying party

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18
Q

what do old title deeds show

A

need it to investigate title

  • history of land
  • who owned it
  • how beneficial title held
  • rights and encumbrances attaching to/affecting the land
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19
Q

what is in the epitome of title

A
  1. front sheet (sets out details of docs. comprised in it, not part of epitome, not legally binding)
  2. root of title (must be a good root)
  3. certain pre-root documents (default rule = none, s.45 LPA 1925, exception is if doc is referred to in root of title)
  4. certain pre-root documents (if necessary to show link between person selling and person in last conveyance)
  5. other documents
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20
Q

what is not in the epitome

A
  • documents relating to equitable interests that will be overreached on completion
  • leases that have expired (don’t affect title)
  • pre-root documents except those in exception
  • CLC search certificates (S might provide some to save time/money but check they can be relied on)
  • discharged pre-root mortgages
21
Q

what pre-root documents are included in the epitome of title

A

documents if:
o Referred to in the root of title

o It is a conveyance including covenants

o It is a power of attorney under which any abstracted (i.e. copy) document has been executed

22
Q

what post-root documents are included in the epitome of title

A

Required if necessary to show link between person selling and person in last conveyance

E.g. If S changed name -
marriage certificate

E.g. if one owner died - death certificate

23
Q

what other documents are included in the epitome of title

A
  • copies of relevant docs relating to land (e.g. deed of easement, current leases)
  • copies of legal mortgages (post-root) and evidence of discharge (usually only discharged on completion though)
  • if S did not acquire title by conveyance, e.g. assent, grant/probate/deed of gift - copies of these
24
Q

What must B’s solicitor check to investigate title

A
  1. S has a right to sell?
  2. exact land is being sold by S?
  3. Rights (if any) attach to the land?

4 Burdens the land is subject to?

  1. land = suitable for B (and his plans) – i.e. land meets B’s requirements
25
Q

Execution of documents

A

s.52 LPA 1925 - if doc transfers interest in land, it must be deed

requirements:

  • clear on face it is deed
  • validly executed
  • executed as whole, physical doc
  • delivered as deed
26
Q

stamp duty

A

if ad valorem stamps, assume paid correctly

  • done on sliding scale according to purchase price
  • certificate of value used if rate lower than highest rate (“it is hereby certified that the transaction or series of transactions…”
27
Q

late stamping of stamp duty - conveyance or transfer not presented for stamping within 30 days of execution

A
  • Interest chargeable on stamp duty not paid (as with SDLT)

- penalty is charged

28
Q

late stamping of PD stamp

A

no money penalty

BUT should be done within 30 days of completion

says: “Particulars Delivered” or ref. to Finance Act 1931

29
Q

if name of S is not same as from root of title

A

MUST BE NO UNEXPLAINED GAPS

if name different, investigate name change and request evidence

  • e.g. marriage certificate
  • e.g. cert of incorporation on change of name (shows same comp number)
  • e.g. certified copy of Power of Attorney
30
Q

contract and TR1 - what to check?

A

check description in contract and transfer accords with property being bought as described in root of title

31
Q

WHAT IF conveyence completed outside protection period?

A

Any 3P rights that may have been registered between date of search and eventual completion would be binding, but not recorded in the CLC search, so must do a new one

32
Q

if CLC search reveals anything…

A

get office copy of any Land Charges affecting land revealed by CLC search to confirm:

  • subject matter of land charge
  • doc by which charge created
  • extent of land affected
  • name and address of person who applied to register it (who would have owned land with benefit of land charge)
33
Q

how to do a CLC search

A

k15 form

34
Q

CLC search - if estate owner died

A

SEARCH BEYOND DATE OF DEATH UP TO NEXT SALE FOR VALUE

  • charges can be reg. against estate owner even after death
35
Q

CLC - how do approach

A
  1. make table of all names in epitome
  2. check if protection period applied when conveyence took place
  3. any searches incorrect and missing? = new search
  4. office copies to show details if search reveals charge
36
Q

DANGER ZONE OF CLC if completed after priority period?

A

Danger zone is any adverse interest lodged from date of CLC search to date purchase is completed

if completed outside protection period, any charges reg since CLC search won’t be in search but would be balid

37
Q

CLC search of current sellers

A

make sure you check priority period - may not be enough time to complete before expiry of priority period

38
Q

what should B’s solicitor do to check burdens

A
  1. CLC searches
  2. Check deeds in epitome of title to discover e.g. deeds of easement/covenants granted
  3. enquiries to S to check (e.g. for overriding interests)
  4. other searches
    - index map
    - mortgages (CLC search)
    - indemnity covenants
    - unreg interests
39
Q

why search index map?

A

check if any part of land is

  • already reg
  • subject to pending app to do so
  • caution against first reg (someone claiming right over land)
  • subject to pending app for first reg (someone applying to reg as owner)
40
Q

why check for mortgages in CLC search?

A

CLC reveals puisne mortgage

  • if none, confirm with S
  • if yes:
  • undertakings

discharge of mortgage: separate deed of discharge, or validly executed receipt on face of mortgage (not DS1)

41
Q

unreg interests overriding first reg

A

(s.11(4) LRA 2002)

MOSTLY discoverable on inspection
- make enquiries though

42
Q

RC (details of what to do)

A
  1. REPORT (tell client)
  2. REGISTERED? (only binds if reg - check CLC - or chain of indemnity covenants)
  3. CHECK GAP (obtain office copies to confirm the entry relates to the RC in conveyance, gap because processing)
  4. CHAIN OF COVENANTS (if d(ii) not reg, reg incorrectly, or relates to a different prop after inspecting office copies) - RC won’t run with land BUT can still be binding in contract law if unbroken chain of indemnity covenants (see if S gave one, if yes, b must give one)
43
Q

Does S own title

A

if no can’t sell

  • make sure good root of title
  • proves legal and beneficial title
44
Q

WHAT IF NO AD VALOREM STAMP OR PD STAMP?

A
  1. Not good root of title (title does not pass to S unless purchase deed was correctly stamped)
  2. Inadmissible as evidence in civil courts
  3. Penalties and interest payable for late stamping
  4. Breaks link in chain of title (if conveyance unstamped, legal title will not pass to the buyer)
    solution: insist S arranges for conveyence to be stamped before completion (otherwise 1st reg impossible)
  • special condition in contract
  • pre-root conveyances don’t matter but if doc later needs to be relied on in court, inadmissible, so get S to remedy ALL stamping problems before completion
45
Q

estate contract (C(IV))

A

Appears as though 3P is claiming he entered contract to buy the land

  • check to see who this is and if still claiming to have contract to purchase land
  • usually just old conveyence but ask S’s solicitor to cancel these c(iv) charges now
46
Q

POST COMPLETION STEPS

A
  1. Pay SDLT
  2. apply to reg new charge at CH
  3. Reg sale of land
  4. check official copies received from LR (no mistakes)
47
Q

reg new charge at CH

A

MR01

Within 21 days after creation of charge

otherwise:

  • void against insolvency, liquiadator, reciever
  • repayable on demand
  • cannot reg transfer at LR without certificate of reg from CH
48
Q

pay SDLT

A

SDLT1

within 30 days of completion

consequence if no:

  • £100 penalty + interest
  • no SDLT5 so can’t reg at LR
49
Q

Apply for first REG + reg mortgage if there is one

A

FR1

docs:

  • fee
  • docs in epitome (goo root, all other docs necessary to show S’s title in property)
  • searches and enquiries (all results)
  • contract
  • completed info and undertakings form
  • SDLT5 + certificate of payment of SDLT
  • TR1 and certified copy
  • copy of certificate of reg of charge

within 2 months of completion and within ‘protection period’ of CLC search

otherwise:

  • legal title doesn’t pass
  • B might not have priority against 3P interests

prop (12 decks)

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