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Legal systems > Land > Flashcards

Land Flashcards

1
Q

Can a solicitor act for a buyer and a seller on the basis that they have a substantially common interest?

A

No!
This exception never works in the case of property purchase

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2
Q

Can a solicitor work for a buyer and a seller on the basis that they are competing for the same objective?

A

No because that only works if they are competing against each other (which is obviously not the case in a buyer-seller situation)

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3
Q

When can a solicitor act for a buyer and a sellerv

A

Never

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4
Q

Conditions for advising two party under ‘substantially common interest’ exception

A

1- have agreed in writing
2- effective safeguards have been put in place
3- solicitor thinks its reasonable

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5
Q

When can a solicitor act for borrower and lender

A

When its a residential mortgage, on standard terms

High risk if its on standard terms but doesnt use the correct certificate of title

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6
Q

What should a solicitor be weary of when advising joint residential buyer

A

How they want the equitable interest to be organised

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7
Q

Main difference between residential and commercial buyers when it comes to SLDT?

A

1st time buyer relief for residential
Commercial will have to pay VAT

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8
Q

SLDT for first-time buyers

A

Relief if residential property + 1st time buyer + main property + purchase price was under £625,000

0-425,000 = no tax
425,001 - 625,000 = 5%

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9
Q

SLDT rates for not first time residential buyers

A

0 - 250,000 = 0%

250,001 - 925,000 = 5%

925,001 - 1,500,000 = 10%

The remainder = 12%

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10
Q

SLDT rates for non-residential properties

A

(This also includes mixed properties)
0 - 150,000 = 0%

150,001 - 250,000 = 2%

Remainder = 5%

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11
Q

How is SLDT calculated if VAT is charged?

A

On VAT-inclusive amount (purchase price + vat)

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12
Q

How is SLDT paid

A

By online bank transfer with appropriate form
- must be paid within 14 days of completion, otherwise buyer not registered at Land Registry (title remains w seller, buyer only has equitable interest)

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13
Q

Key differences between SLDT and LTT

A

Obviously rates
No first time residential buyer relief under LTT
SLDT must be paid within 14 days and LTT within 30 days

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14
Q

VAT on commercial properties

A

Sale of Greenfield site : exempt, subject to option
Sale of new property: standard rated (price exclusive of)
Sale of old property: exempt, subject to option to tax
Grant of lease: exempt, subject to option to tax

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15
Q

What does not constitute development for planning purposes

A

Carrying out maintenance, improvements or alterations that only affect interior of building or do not materially affect the external appearance of building
+ change of use within same class of use (eg from B(a) to B(c))

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16
Q

What is development for planning purposes

A

s55 TCPA 1990
Carrying out building, mining, engineering or any other operations on land, over or in that cause a material change in the use of land or building

Change from class use is also development (eg from B1 to B2)

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17
Q

What is the GDPO

A

Legislation that allows for automatic development without needing to apply for planning permission
- for developments within curtilage of a dwelling house (such extension below certain size) and minor operations (painting, installing CCTV)
- also allows certain certain class used changes and sui generis changes

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18
Q

What is an Article 4 Direction

A

Power of the Secretary of State in charge of Town and Country Planning to exclude effect of relevant GDPO provisions

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19
Q

Alternatives to getting express planning permission

A

Applying for Certificate of Lawfulness (to LPA) or check complies with GDPO

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20
Q

Legal easement

A

Created by deed for fixed duration (otherwise equitable)
If land is registered and easement is not, becomes an equitable easement

21
Q

Are legal easements binding?

A

Yes - on everyone regardless of knowledge (legal interests bind the whole world)
Equitable easements only bind purchaser with knowledge

22
Q

Are restrictive covenants binding in unregistered land?

A

If they have been registered at Land Charges Dept against name of original covenantor

23
Q

How can an unregistered restrictive covenant be binding?

A

If the purchaser is not for money’s worth (eg if land is a gift or devise under will), or they only hold the equitable title

(This is the same for an unregistered covenant in registered land IF land is a registrable disposition (eg lease over 7 years) - if not a registrable disposition, fine for it to not be registered)

24
Q

How do covenants pass in law?

A

Only restrictive covenants and in equity = remedies will be equitable

25
Q

How does a positive covenant pass?

A

It does not - unless Halsall v Brizell applies
Can pass with indemnity chain (but if breached, its still original covenantor that is sued, but can recover from current owner)

26
Q

Who is liable if a covenant (any nature) is breached

A

Original covenantee (privity of contract) and current owner of land (privity of estate)

27
Q

Is a lease over 7 years binding on a buyer?

A

Yes if it has been registered (on its own and) against the property charges registered before the property is sold

If they have not been registered, will not bind buyer UNLESS tenant is in actual occupation (binding as an overriding interest)

28
Q

Is a parol lease equitable or legal?

A

Legal

29
Q

When are leases legal?

A

If they are parol leases or if between 3-7 years duration have been made by deed
(Leases over 7y need to be registered)

30
Q

Is a parol lease binding on a buyer of unregistered land?

A

Yes regardless of knowledge

31
Q

Can there be a parol lease of 10 years?

A

Yes if there is no premium paid and is a fixed periodic lease

32
Q

Are home rights binding?

A

Only if registered (charges) (for both reg and unregistered land)

33
Q

What are the recommended pre-contract searches for every property?

A

1- survey and inspection
2 - local search
3- water and drainage
4- flooding search
5- environmental search
6- seller enquiries
7- chancel repairs
** if property is unregistered: Index Map Search (SIM) on land searches department

** just before completion: insolvency check on borrower (if acting for lender) and company search (where seller is company)

34
Q

What are the additional pre-contract searches?

A

1- mining searches (if CON290 revealed mining area or if there are mine and mineral reservation on title) (to Coal Authority)

2- commons search (if there are adjoining greenfield sites)(local authority)

3- Canal and River Trust search (if adjoining river to check maintenance obligations) (Cana and River Trust)

4- railway search (to check maintenance obligations - with the seller and some specific searches and Network Rail)

5- Highways search (to check verges and pavements if they are publicly maintained, triggered where it appears to be a land in private ownership separating property) (done to the Local Highway authority)

35
Q

How is deposit under SC paid?

A

By electronic means or cheque drawn - fund must come from account in name of conveyancer at clearing bank

36
Q

How is deposit under SCPC made?

A

By electronic means only - coming from clear funds account (clearing bank)

37
Q

Will misrepresentation in a contract (land) lead to recission?

A

Only if seller’s error or omissions were fraudulent or reckless OR if property is substantially different from what agreed
- otherwise, less serious misrepresentation will only lead to damages

38
Q

Does an underlease of a headlease with absolute title need to check freehold title?

A

No need to see title to freehold, can deduce title from headlease

39
Q

Can a lease from a registered freehold check title

A

Yes, under the Open Registry

40
Q

Is a lease from an unregistered freehold entitled to call for deduction of title?

A

No, unless the lease is over 7 years (but will still probably not get absolute title)

41
Q

Can a sublease from an unregistered headlease call for deduction of title?

A

No
Unless the sublease is over 7 years
It can, however, ask to see all previous assignments for the past 15 years

42
Q

Remedy for positive covenant

A

specific performance

43
Q

remedy for restrictive covenant

A

injunction

44
Q

Do restrictive covenants not registered bind successor?

A

no (registered land)

45
Q

Is an unregistered right on unregistered land binding on successor?

A

no In the unregistered system, if an interest is capable of registration as a land charge, then it must be so registered before completion in order to bind a buyer. The neighbour has a restrictive covenant which is registrable as a class D(ii) land charge. As the neighbour did not do so, the buyer is not bound by the interest even if they had of known about i

46
Q

are 3rd party rights not capable of being registered enforceable on successors? (UNREG LAND)

A

basic rule in unregistered land applies, namely that equitable interests are enforceable against anyone except the bona fide purchaser of the legal estate for value without notice.
(= need to be weary if buyer had knowledge)
*** be careful, An equitable interest under a trust (such as the a mother who contributed to purchase price) is not capable of being registered as a land charge.

47
Q

Is an equitable interest under a trust capable of being registered as a land charge (unreg land)?

A

no

48
Q

is a legal interest in unregistered land binding?

A

yes - binds the world

49
Q

is an unregistered covenant in unregistered land binding on successors?

A

no
needs to be registered in land charges

Legal systems (6 decks)

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