Land Law/Property Practice Flashcards
1
Q
What legal estates does the Law of Property Act 1925 section 1 say are the only ones capable of subsisting in law?
A
Fee simple absolute in possession (aka freehold)
A term of years absolute (aka leasehold)
2
Q
What are the four interests that are capable of subsisting in property law?
A
An easement (non possessory right to use or enter property)
A rent charge in possession (A sum of money charged on the land to the rent holder)
A charge by way of legal mortgage
Rights of entry
3
Q
What (broadly) are the 5 main changes to property law the Land Registration Act 2002 introduced?
A
Changes to nature/scope of overriding interests
Electronic conveyancing
Changes to adverse possession
Changes to the scope of compulsory land registration
Creation of HM Land Registry
4
Q
True or false - the rights of a freeholder may be subject to the rights of others, such as a mortgagee bank
A
True :)
5
Q
What does section 205 (1) LPA 1925 BROADLY define land as?
A
“Land” includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments .
6
Q
What are fixtures?
A
Something that is attached to the land and becomes real property
7
Q
What are chattels?
A
Part of the land that can be easily removed, and are personal property
8
Q
Give some examples of real property
A
Buildings, structures, water and water rights, minerals on and below the earth, trees, crops, airspace above the surface
9
Q
True or false- real property is subject to both proprietary and personal rights
A
True :)
10
Q
Give some examples of personal property
A
Clothes, jewellery, electronics, equipment, machinery, copyrights, patents. Can be either tangible or intangible :)
11
Q
True or false - personal property is subject to both proprietary and personal rights
A
False - personal property is subject to personal rights only. The owner is the only person who has an interest in the property
12
Q
What are the two key things that must be looked at to see if chattels have become fixtures?
A
Degree of annexation (extent of attachment)
Purpose of annexation (why it’s fixed)
13
Q
What are proprietary rights?
A
Rights that bind ‘the whole world’
14
Q
What are personal rights?
A
Only affect the parties subject to the right (i.e A can do this to B’s property, but only A)
15
Q
What are some features of proprietary rights?
A
They can be enjoyed against the whole world, I.E you can claim the title of owner of your property against others.
Rights and interests are recognised by the LPA 1925 I.E estate in fee simple, leasehold etc
16
Q
What are some features of personal rights?
A
Only enforceable with the people who are involved or agreed on the obligations. Can also arise from law (for example posties being allowed on property to deliver post).
The rights are created via contract only.
17
Q
What are legal rights?
A
Protected by legislation
18
Q
What are equitable rights?
A
Informal and discretionary
19
Q
What is an ‘estate in fee simple’?
A
Fee simple means that the land is completely owned and, therefore is capable of being inherited by the land owner’s heirs
20
Q
What is ‘priority’?
A
The right to use something (i.e A owns a shop, gives B right of way but B moves, does A owe C a ROW?)
21
Q
What is doctrine of notice/equitys darling?
A
Applies to unregistered land. A purchaser can escape liability of 3rd party interest if they purchase a legal estate in land in good faith without that 3rd party notice.
22
Q
How many categories is the issue of priority subject to?
A
four
23
Q
What is the first category priority is subject to?
A
Legal rights (WITH EXCEPTION OF A FIRST MORTGAGE) have priority over subsequently created legal rights. They do not have to be registered. Only equitable rights have to be registered as land charges.
Basically, the first created legal rights of the land take precedent over new ones and are enforceable, unless it is a first mortgage, which has to be registered to be enforceable.
24
Q
What is the second category that priority is subject to?
A
Certain equitable rights in the LCA 1972 have to be registered to take effect.
25
What are the rights that need to be registered to take effect under LCA 1972?
Class c (i) - Puisine mortgage (second mortgage where deeds are retained by the first mortgage)
Class c (iii)- General equitable charge (interest in land not secured by a deposit or title deed)
Class c (iv)- Estate contract
Class d (ii)- Restrictive covenant made on or after 1/1/1926
Class d (iii)- Equitable easement (binds person who enters into it) made on or after 1/1/1926
Class F - Homeowner rights
26
True or false - once the classes relating to priority are registered, they DON'T bind any future purchaser?
False - providing they are registered, they're binding :)
27
Who registers the priority charge?
The person who is given the easement and register it against the GIVER and NOT the property
28
Does the priority, once registered, bind future owners?
Yes unless it is not registered as a land charge. If it isn't registered as a land charge, then not binding against certain purchasers
29
Which right classes are void against a purchaser of a legal estate for money if NOT REGISTERED?
C (iv) D (i) D (ii) D (iii)
30
Which right classes are void against a purchaser of a legal or equitable estate for valuable consideration if NOT REGISTERED?
C (i) C (ii) C (iii) F
31
True or false - actual knowledge of the land charge is irrelevant. If the charge is not registered in some cases then it is void
True
32
What is the third category priority is subject to?
Beneficial interest held under a trust are not registrable as a class c (iii) (greater equitable charge) BUT they are overreachable
33
What is overreaching?
Overreaching is where a purchaser pays the purchase money to min of 2 trustees, who give the purchaser a receipt for the monies paid. On completion, the purchaser overreaches the beneficiary interest and the beneficiary interest is transferred to the purchaser. P is no longer bound by beneficiary interest.
34
When would overreaching be used?
If there's only one person on the legal transfer but two people bought a property. The second person would have a beneficial interest. If the property is sold, the transfer only has one person's name on it and so the second person would retain their interest without overreaching.
35
What happens is there's only one trustee in an overreaching scenario?
A second trustee is appointed, usually a solicitor.
36
True or false- banks can't use overreaching
False- a bank could use overreaching if A borrowed money for a house to avoid being bound by beneficial interest of B
37
What happen's in the beneficiary's interest is not overreached?
They still have an interest in the land
38
What is the 4th category that affects priority?
Doctrine of notice/equity's darling
39
Explain doctrine of notice/ED
If the beneficiary's interest is not overreached, then a test is conducted to see if the purchaser is a 'bona fide purchaser of the legal estate for value without notice of the equitable right'.
40
What does bona fide mean?
Acting in good faith
41
What is the doctrine of notice test?
To see if the purchaser had actual notice (was told of the interest), had constructive notice (should have known of the interest based on searches. This is an objective test) or imputed notice (if the solicitor knew of this interest then so should the purchaser). If the answer to these is no, then the purchaser is acting bona fide and it destroys the claim for beneficial interest.
42
What are a few issues with the current land charges system?
There's too many advantages for purchasers
Registration is against estate owners- if the estate changes owners a lot this gets confusing
With a good root being reduced to 15 years, it can get confusing to find all the relevant estate owners
43
How can ownership of unregistered land be shown?
Title deeds, which can be found on the land charges register, physical land deeds. Be mindful of overreaching
44
What are the steps to follow when establishing a good root of title and eventual purchase?
1- Check title, current and past. 15 years need. Title can include title deeds, marriage and death certificates, and name changes
2- Check the property description matches the plan
3- See if there are any covenants or easements
4- Check all owners names to see if any are on the land charges register
5- Complete purchase within 15 days of search date
6- SDLT
7- Check execution
45
What are the types of trust land can be placed into?
Express or implied
46
What is an express trust?
Self declare or declare transfer to trust
47
What is an implied trust?
Can be a resulting trust (a 3rd party pays and acquires interest) or a constructive trust (property is contributed to in a way that isn't paying for the whole thing ie mortgage payments)
48
What must a deed be to be valid?
Signed, written, clear, witnessed, delivered. If a short lease, it can be parol (verbal)
49
How can equitable rights be created?
Ø Contract
Ø Attempting to grant legal right, but failing to comply with formalities.
Ø Grant of an estate or interest by a person owning an equitable right.
Ø Grant of an estate or interest which can only exist in equity.
Ø Express Trust
Ø Implied Trust
50
What are the three principles relating to registered land?
Mirror principle- The title register should reflect a complete and accurate record of the facts (rights and interests). Can be 'cracks' ie overriding interests. To ensure everything is ok, the land should be inspected.
Curtain principle- Title register should be sole and definitive source of info for proposed purchasers but should not reveal sensitive info (ie beneficial interests under a trust)
Insurance principle - the LR will compensate anyone who relies on the registry info that results in a loss
51
Why is the LR not a perfect mirror?
Compulsory registration of a short lease of seven years or less, and rights created by actual occupation is not required as this would not only overwhelm the records of the land register, but also impose a burden on the holders of these rights particularly where they are innocent and vulnerable.
As the law must protect the vulnerable, certain rights and interests such as the short leases (seven years or less in length) and actual occupation remain as cracks in the mirror. These interests are also known as ‘overriding interests’.
52
What are the two categories of overriding interests?
A broad category of interests which override on first registration of title (Schedule 1, LRA 2002), including leases of up to and including seven years, the property rights of people in occupation, easements, and profits.
A shorter list of interests which override on the sale or transfer of land which is already registered (Schedule 3, LRA 2002), including leases of up to and including seven years, the property rights of people in occupation, easements, and profits, but with exceptions to rights of occupiers where the interests of those in the actual occupation are not readily discoverable because they are hidden.
53
When does the rights of a person in actual occupation of the property override and what are the two examples of when a person in actual occupation won't override a purchaser?
Whether governed by Schedule 1 or Schedule 3, the rights of a person in actual occupation will override only to the extent that they coincide with that occupation. To further strengthen the mirror principle in the registered land, under Schedules 1 and 3 the rights of a person in actual occupation will not override a purchaser where either:
Enquiries have been made of the right-holder and s/he has failed to disclose the right in circumstances where he could reasonably be expected to disclose it (undiscovered): [Sch. 1 only].
The right-holder’s actual occupation is not obvious on a reasonable inspection of the land, and the person potentially bound did not have actual knowledge of the interest at the time of the sale or transfer (undiscoverable) [schedule 3 only]
54
What is a person in actual occupation?
A person is in actual occupation where s/he holds a proprietary interest in the land which is protected by him/her by actually occupying the land as opposed to merely receiving rents and profits of the land
55
How does overreaching work with registered land?
Very similar- LR would disclose the restriction on the property as a form of entry placing limits on registered proprietors use of land. This prevents the sole legal owner selling or transferring to the detriment of the beneficiary.
56
What is indemnity by the LR?
If there is a loss by using the LR register, the LR will compensate for the loss
57
What are the 3 types of registers?
A: Property register -
This gives:
A description of the property.
The date the property was first registered.
Any rights it may benefit from, such as an easement.
If the property is leasehold, the register may also show details of the lease, such as the date, the parties, and its length.
Details of entry of legal rights under S. 1 LPA 1925 such as a freehold, or lease that has more than seven years to expire.
B: Proprietorship register -
This shows: The name and address of the current owner.
When they bought the property.
How much they paid for it (if sold since 1 April 2000).
Any restrictions that limit the power of the owner, for example, to stop them from securing a loan without their mortgage lender’s consent.
The class of the title, such as an ‘absolute title’ or ‘possessory title’, which reflects the level of guarantee (based on the strength of evidence given).
C: Charges register-
Information in the charges register may include:
Mortgages or other financial burdens secured on the property (though this won’t show the amount of money involved).
Rights or interests that limit how the land or property can be used, such as leases, easements, or covenants.
58
Which interests are protectable by registration?
Fee simple (also known as freehold land).
Leases with over seven years left to run.
Expressly created easements where the servient (burdened) land has registered title.
Expressly created profits.
59
What are the two types of equitable interests that should be protected by an entry in the land register?
1- Those interests that would be registrable under the LCA in unregistered land (notice):
These are third-party interests in unregistered land which would be registerable under the LCA, which bind a purchaser if protected by an entry in the land register; if they are not protected, they do not bind a new purchaser even if s/he has had notice.
For instance, an estate contract (contract to sell and buy land) is registerable under the LCA so if it is not entered in the land register as a notice then the buyer is not going to be bound by the estate contract even if s/he has had knowledge about that.
2- The interests of beneficiaries under a trust which can be protected by an entry of a restriction: these are interests of beneficiaries under a trust which are capable of being overreached.
Of course, if a sale or transfer of land is made without valuable consideration, the transferee (purchaser) takes subject to all pre-existing property rights, irrespective of whether they are registered or overriding.
Interests under a trust are not capable of protection in the land register under the LRA 2002. Instead, a restriction may be entered to facilitate overreaching by informing a potential buyer of the land. The entry of a restriction does not protect an equitable interest and no notice for such interest may be entered.
60
What must the equitable interests that should be registered on the charge register be registered against?
THE LAND (not the owner :) ) by way of notice or restriction. If they aren't registered by the purchaser then the non purchaser's (someone who got the property by gift or succession) interests are valid
61
What are some of the interests that are covered by the two main categories of equitable interest?
Contract for sale, covenants, option to purchase, proprietary estoppel, leases granted for seven years or less, and easements.
62
What is unilateral notice?
‘unilateral notice’ is entered without consent from the current landowner. However, evidence is required to submit an application to HM Land Registry.
The Land Registry gives notice to the proprietor of the land to challenge. Unlike agreed notice, a unilateral notice will also identify the person entitled to the right under the Notice.
63
What is agreed notice?
The registrar may enter an agreed notice where:
(a) the applicant himself is a registered proprietor entitled to be registered as such;
or (b) those in (a) consents;
or (c) the registrar is satisfied with the validity of the claim: S. 34 LRA 2002.
64
Why does the land need to be registered within 2 months or purchase? (apart from leases 7 years or less)
If a transferee (buyer) fails to register within two months, s/he will only have an equitable title in the land and could be vulnerable to a subsequent fraudulent sale of the land in the name of the person from whom s/he bought it.
65
True or false - overriding interests face vulnerability for delayed registration
False- they do not :)
66
What is the basic rule in relation to transfer of registered land?
The transferee, who is not a purchaser, is bound by all pre-existing proprietary interests: S. 28 LRA 2002.20
67
What is the special rule in relation to transfer of registered land?
A purchaser has priority over all interests except those entered on the register and those overriding within Schedule 3: S. 29 LRA 2002.
68
What are home rights?
Section 30 of the Family Law Act (FLA) 1996 created ‘home rights’. This is a statutory right of occupation of the matrimonial home for a non-owning spouse or civil partner.
The right arises provided:
a) The parties are legally married or civil partners (and not divorced)
b) The home is, has been or is intended to be the matrimonial home.
69
Where are mortgages shown in unregistered land?
Usually epitome of title
70
Where are unknown covenants identified in registered and unregistered land?
registered- in charges register
unregistered- on face of the conveyance
71
What are positive covenants?
Coventor has to do something
72
What is a restrictive covenant?
Dont do X or Y
73
Where would declarations as to right of light and air be shown in a title?
proprietorship register
74
Where are rights to mines and minerals shown in reg and unreg land?
Reg- property register
unreg- in the conveyance
75
What do solicitors focus on when trying to est good root?
Ownership chain
Land desc
Stamp duties
Incumbrances (ie ease and cov)
Execution
land charge searches
76
What are the three stages of conveyancing?
Pre contract - Pre completion - Post completion
77
What happens in the pre contract stage?
Solicitors take instructions. The degree of consesus between the parties is estbalished. Seller solicitor will submit a pre contract pack including a draft contract and title evidence. Buyer solicitor checks these carefully and conducts any searches. May be a clause by seller sol banning any more searches after moving to pre completion
78
What happens in the pre compleiton stage?
Correct docs and completion monies sourced.Transfer deeds prepped and executed as well as searches to see if seller personal info is correct. On completion, monies are sent and keys exchanged.
79
What happens during post completion?
Admin matters sorted ie SDLT, registration
80
What governs residential conveyancing?
Law Society Conveyancing Protocol
81
What key actions does the sellers solicitor take through the transaction?
Gets instructions from client
Check for conflict of interest
Investigate title and produce evidence to buyer
Reply to pre contract enquiries
Draft contract
Get clients signature and exchange.
Approve transfer deed
Reply to pre completion enquiries
Completion
Post completion matters ie money discharge
82
What key actions does the buyers solciitor take through the transaction?
Gets instructions from buyer and maybe lender
Conflict of interest check
Pre contract searches raised and comission surveys
Approve draft contract
Prepare pre exchange report
Get client signature
Exchange
Pay desposit
Draft transfer deed
Draft mortgage deed if acting for lender and client
Raise pre completion enqs
Submit report on title or certif of title to lender and request mortgage advance
Completion
Post completion ie SDLT and registration
83
When can you act for both sides?
Rarely but if both buyers are competing to buy property
84
Can you act for joint buyers?
Yes
85
Can you act for the borrower and lender?
Yes unless conflict risk is high or not a standard mortgage. Usually can act even if conflict tho as long as informed and written consent given
86
Why will buyers solicitors in comm prop sometimes do title investigations, searches, etc. for the lender?
To save lenders doing own and duplication of costs
87
Can you act for joint borrowers?
Yes if no conflict BUT may be issues if one spouse trying to get business loan against home. If this happens, lender must give solicitor any evidence of written applications, overdraft amount, debit amount and then solicitor must tell other spouse, as lender will rely on solicitor involvement to make sure there is no undue influence.
Solicitor must explain whats going on clearly and in plain language. If sol thinks the idea is bad then can advise so. If sol not confident about lack of undue influence then decline to act,
88
What are contract races?
Seller sol sends out mutliple pre contract packs to many buyers. This is ok as long as buyers know they are competing. Sol has to make buyers aware or decline to act
89
What is an undertaking?
Where a solicitor or firm promise to do/not do something within an agreed time
90
What are the financial sources for most resi transactions?
Private funds, private loans or mortgages etc
91
What are the most common types of funding for comm property?
Loans against chargeable assets, private funds
92
What is a regulated mortgage?
Lender has charge against property. Buyer is an individual. Must be regulated by FSMA
93
What is a repayment mortgage?
Monthly payment to lender with interest
94
What is an interest only mortgage?
Only pay monthly interest and not original loan amount. At the end of a term, pay full lump sum
95
What is a combined mortgage?
Part of loan is interest only and part is repayment
96
What is SDLT
Stamp duty land tax
97
What is LTT
Land transaction Tax (wales only)
98
What do commerical buyers of property pay in terms of tax?
SDLT/LTT and VAT any applicable CGT
99
What do companies that own com property pay in terms of tax?
Corporation tax instead of income tax and CGT
100
What do resi buyers GENERALLY pay in terms of tax?
SDLT and sometimes CGT
101
True or false - indivudal resi buyers buying their first home are SDLT exempt if the property is under 300k, or pay a rate of 3% for everything over 300k and below 500k?
True
102
True or false - SDLT is applicable to chattels?
False
103
What are the SDLT rates for a resi property?
Below 125k - no SDLT
Between 125 and 250 - 2%
Between 250 and 925 - 5%
Between 925 and 1.5 mil - 10%
Over - 12%
104
How is SDLT calculated?
The amount in the bracket decides percentage. For example, a 275k comm property would pay 3250 SDLT. This is because up to 150k is not SDLT payable, and then the next bracket (150 to 250) has 100k in it, so the percentage of that bracket against how much money is in it, and the the next bracket (over 250k) has 25, 000 in it, and so its that percentage against that amount.
Bascially - 150k has no SDLT, 100k is 2% SDLT and 25,000 as in the last bracket has 5%. Add those figures together to get the SDLT amount. There are calculators for this on the gov website
105
What are the rates of SDLT for a mix use or non resi property?
Below 150k - no SDLT
Between 150 and 250 - 2%
Over 250 - 5%
106
How is SDLT paid
Online via bank transfer on completion of an SDLT1 form
107
True or False - LTT has no relief for first time buyers
True
108
What are the resi LTT rates?
Below 180k - No LTT
Between 180 and 250 - 3.5%
Between 250 and 400 - 5%
Between 400 and 750 - 7.5%
Between 750 and 1.5 million - 10%
Over 1.5 - 12%
109
What are the LTT rates for mixed use/comm prop?
Below 225 - none
225 to 250 - 1%
250 to 1 mill - 5%
Above 1 mill - 6%
110
True or false, LTT is not VAT inclusive
False - VAT is included if it applies
111
What is capital gains tax?
Tax on value of property increase
112
How is capital gain calculated?
Sale price - purchase price. (if bought before 1982 then it is at base value). Gain is at a set rate after CG is calculated
113
What is private residence relief?
If individuals only house/main dwelling house while owning it, then there is no CGT. If own mutliple properties then tell HMRC which one you'd like PRR relief on. Living abroad for work for some time is ok if certain conditions are not tripped.
114
When is a garden subject to CGT?
If over 0.5 hectares and the seller cant prove that the garden is necessary for REASONABLE ENJOYMENT and not business
115
When is VAT paid in property transactions?
Compulsory on new commercial, usually resi is exempt. Old commercial property can be VAT but if selller wants to recover paid input VAT. if the seller opts to VAT, this hikes up fees as VAT is also paid on purchase of porperty regardless, so seller may not always opt to tax in favour of a sale. (SUMMARY - SEE 15/16 of textbook)
116
What governs planning law?
Town and Country Planning Act 1990
117
When is planning permission not needed?
If the development is same use or a mix of uses in the same class.
118
Give some of the classes
B2- General, industrial
B3- Storage or distribution
C- Resi
E- Commercial, business or services
F- Local communities and learning
E(a) to (g) is the same class w different uses-
(a) sale of goods but not hot food
(b)food and drink consumption
(c) financial and professional services
(g) use in resi area without amenity development
119
What are sui generis classes?
Means 'class of its own', ie nightclubs. ALWAYS need permission but sometimes this is granted automatically
120
When do planning permissions need to be implemented?
A certain agreed time. No limit for works to be completed.
121
Can express planning permission be avoided?
Yes via General Permited development order. Minor changes like installing CCTV, erecting porches, satellite dish instillation do not need permission. Some specified changes of use between classes/sui generis may be included but must check as change sometimes.
122
What shouyld you do if youre unsure if you need express planning permission?
Apply for a certificate of lawfulness for proposed works. If not applicable to GPDO or allowed a certificate of lawfulness then you should get express permission.
123
What are the types of enforcement a local authority can use RE- planning permission?
Enforcement notice - effective 28 days from serving to allow for an appeal. Alleged breach must be specified with steps to stop it with a timesacle
Stop notice - served after enforcement notice. Breach has to be stopped right away and can be filed before enforcement notice has concluded as appeals. Usually, temp for 28 days until the investigation is done.
Breach of condition notice - same as enforcement but for a breach of a condition of the permission
Injunction - to restrain an apprehended or actual breach. Courts. Need to be shown to be necessary
124
What are the time limits for planning permission enforcement action?
- 4 years for operational development without planning permission
- 4 years from use change to single dwelling house.
- 10 years for all other breaches
125
What if the time limits for enforcement action are breached by the LA?
No action can be taken
126
What do building regulation and control do?
Look at health and safety of the building being constructed. Generally need to apply for consent from them even if no planning permission is needed.
127
What happens once an application for consent from building regulation is sent to the local authority?
A building control officer will inspect. May be multiple visits. Will issue a certificate of compliance if all is ok. Self certification schemes are available in some circumstances regulated by certain trades and professions .
128
When can a breach of building regs be enforced?
Can be prosecuted within 2 years of finished work. Enforcement notice given within 1 year of works requiring removal or alteration. Injunctions have no time scale
129
What consent is needed for listed buildings to make alterations?
Listed building consent needed to demolish, alter or expand or for planning permission. Higher the listing the harder it is to get consent. GPDO not applicable
130
What do solicitors check in intial instructions?
-Full contact info of parties
- Estate agent contact info
- OP solicitor info
- Purchase prop address
- Fixtures and fittings being purchased?
- Tenure
-Price
-Deposit agreed?
- Mortgage involved?
- Anticipated completion date
- Synced with another sale?
- Present or intended property use?
- Property proximity?
- Survery done or comissioned?
- Anyone that isnt the seller in the property?
- Agreed terms?
131
Why is it important that the buyers solicitor conducts searches?
If not and theres an issue, could be a neg claim
132
Why are searches important to a lender?
Need to know any issues as loaning money
133
What is a survey and personal inspection?
Where a lender asks for a valuation, there could be a home buyers survey and valuation. Sometimes a solicitor will check it out but this is costly and usually just com prop
134
What is a local search
Multiple combined searches where local restrictions or financial charges are imposed.
LLC1 form used. Std enquiries can be shown with a CON29 form and include planning permission and development restrictions, contaminated land etc
Other enqs can be rasied via CON29O and cover things like environment issues/ common land rights.
Local search(es) only apply to that land and not adjoining
135
What is a water and drainage search
Search for drains and sewer links and if the gov is responsible or the property owner is. CON29DW form used for resi or CommericalDW for com
136
What are pre contract seller enqs
Enqs raised by buyer to seller.
137
What are enviromental searches
Identify contaminated land. Optional questions on CON29/O
138
What is a flood search
Searches to see if subject to flooding. Free screening available but not property specific as these cost money from commercial providers
139
What is a chancel search
To see if need to contribute towards parish church upkeep.Key for unreg land or land that hasnt been disposed for value since 13 Oct 2013
140
What are mining searches
Searches to see if property is on or near a local mine and if theres been a claim for subsidence. CON29M form used.
141
What are canal and river searches
Searches to see if liable for maintenance of canals and riverways. Sent to canal and river trust. Important if adjacent to a canal and river
142
What is a commons search
CON290 to see if near a village green/ protected.
143
What is a village green
A piece of land subject to common rights and are protected. May impact land enjoyment
144
What are railway searches
Searches to see if liable for maintenance and upkeep of railways/restrictions of use. Buyer has to get this info from seller
145
What is a highways search
Search to see if liable for maintain of verges and pavements. Key if land is in private ownership that seperates property from the highway. Contact local highway authority.
146
What is an index map search
Do a SIM. Sent to LR to see if land is registered, land registration is pending or any cautions
147
What is a land charges search
See if any types of incumbrances have been protected by registration against relevant owners. A full search. K15 form sent to land charges department in plymouth. Key for unreg land
148
What is a company search
Search against companies house for a specific company to check for signatories and capacity. Key if seller is a company or there is a corporate owner of unreg land
149
What is a bankruptcy/insolvency search
K16 for an individual, companies house for a company. Checks insolvency and is key for a lender
150
What is the NLIS
The National Land Information Service (NLIS) provides a single point of electronic access to a variety of sources of land and property information, including every local authority in England and Wales, HMLR, water companies and other organisations that provide official sources of data. The firm registers with a channel provider who is licensed by NLIS to give searches, The search is submitted by the Solicitor, and info is given to NLIS, who gives the consolidated searches back.
151
What is a TPO
Tree preservation order. Usually revaled in an LLC1
152
Where is a smoke control order usually revealed?
LLC1
153
Where are conservation areas usually revaled?
LLC1 or CON29
154
Why would someone want a contract as well as a transfer deed?
If the party doesnt want searches but wants a delay between completion, or to list obligations not included in the transfer
155
What are the two types of contracts usually used
Standard conditions or firms own drafted contract
156
What are the two types of standard conditions
Standard conditions of sale (5th edition - 2018 revision) FOR RESI/ EZ COM PROP
Standard Commercial Property Conditions (3rd edition - 2018 revision) USED IN TRICKY COMM PROP
157
What are the three parts to both standard conditions
1- headings relating to property description and sale terms 'particulars of sale'
2- Std conditions in middle. Terms for transaction unless different terms agreed. SCPC has 2 parts for this, with part 1 applying unless excluded and part 2 only applying if explicitly included
3- back page with special condtions (drafted for specific requirements)
158
What is limited title guarantee?
Limited property knowledge but has right to sell
158
Where are burdens listed on the SCS/SPCS
Under the 'specificed incumbrances' heading. If they arent put here but are later found out - BREACH. Has to be on here regardless of already being listed elsewhere.
159
What is a full title gurantee?
Gurantee that seller owns full legal title
160
What must a seller do when disposing of land regardless of the title held
Make sure they do all as reasonably possible to make sure property is in a transferable state and have disclosed all incumbrances reas ought to know
161
What is a contract rate
Rate of which interest is charged if late/delay completion. Generally 4% higher than barclays rate.
162
Can a seller keep the deposit if the buyer frustrates the sale/buyer demands a deposit back if the seller is frustrates?
Yes
163
When is the deposit for a property paid
On exchange
164
What other provisions can be in a contract?
VAT terms, contents, fixtures, fittings etc
165
What is indemnity insurance
Insurance to protect against any covenants acquiried. Useful for positive covenants as they pass to the person not the land.
166
When does the risk of damage to property pass to the buyer
On exchnage
167
Does the seller have to insure the freehold property
No unless otherwise stated. Seller may choose to havr risk to stay wiht them so property maintained until compleiton.
168
Would a buyer want 2 insurances against the property or one
One as multiple policies causes issue so check to see if prop has one
169
What are the three tax/VAT possibilities in contracts
1- Price is exclusive of VAT and needs adding
2- VAT is inclusive
3- Exclusive so VAT can be added but seller not contractually obliged to add it
170
What do lenders generally require from solicitors pre completion?
Lender will generally issue a doc with their own loan terms and want a mortgage deed drafted.Borrowers solicitor has to advise on the deed. Buyer solicitor will usually give the lender all search info even if not representing them
171
True or false - lender requirements have to be met before mortgage funds can be released to acquire mortgage
True
172
What does a title certificate reassure the lender?
- No legal issues with property and can be lended against
-Who owns property after sale
-Completion date
173
What is a commerical property certiifcate of title like?
Usually a lot bigger and filled with search and inquiry info. If wrong, can be sued
174
When is the certificate of title/drafts provided?
Immediately prior to loan completion
175
What will the buyers sol usually send their client explaining mortgage offer terms and search results
Pre contract report
176
What are the general steps to exchange
1- Report to client w results
2- Report to lender (if applicable)
3-Ensure deposit funds sorted
4- Check mortgage offer in place and funds ready
5- Insurance arrangeemnts in place immediately following completion
6- Contract signed
7- Completion date
177
What is law society formula A and when is it used?
Formula A is used where one solicitor holds both parts of the contract, signed by the buyer and seller.
Following the telephone call effecting exchange, the solicitor holding both documents dates both parts of the contract, inserts the completion date (if not already inserted) and sends the part signed by their own client to the other solicitor.
178
What is law society formula B and when is it used?
Formula B is used where each solicitor holds their own client’s part of the contract.
Following the telephone call effecting exchange, each solicitor dates their part of the contract, inserts the agreed completion date and sends their client’s signed part of the contract to the other.
179
What is law society formula C and when is it used?
Formula C is typically used for chains of related transactions. Each solicitor holds their own client’s signed parts of the contract and agrees to release the contracts for exchange for a specific period.
This allows all parties to be ready to exchange so that as soon as the party at the end of the chain is ready, all contracts can be exchanged almost simultaneously.
180
What is needed on the front of the exchanged docs
Formula, date and time, completion date, deposit amount and solciitors involved
181
What happens to title after exchange
Still held by seller but binding contract
182
What are the key pre completion duties
- Transfer prepped
-Searches for pre completion done
- Practical completion arrangements made
-Finances in order for completion
183
Does a transfer deed need to be sealed?
No as long as it is signed as a deed and delivered.
184
What are the 3 ways a company can execute a deed
Company seal
Director and secretary signed/ 2 directors
Single director w witness
185
How can an individual execute a deed
Sign it and have it witnesses
186
Which party executes the transfer deed to transfer land
The seller, but buyer will do too is entering into an obligation
187
Which transfer form is used for transfer of whole
TR1
188
Which transfer form is used for transfer of part
TP1
189
When is a transfer presumed to be executed
When it is delivered unless expressly said otherwise
190
What transfer form is used for unreg land
LR form used as subject to compuslory registration
191
What steps are taken following pre completion searcheds
- Make sure no more incumbrances from seller
- Check borrower finances if acting for lender
- Buyer/lender priority at LR
- Check seller is not in liquidation
192
What needs to be done against a registered title number to see if theres any new entries before completion
title search. OS1 for whole property and OS2 for part
193
What form gives the title entry registered land results and therefore starts the priority time
OS1R or OS2R. 30 working days priority
194
How are entries checked on unregistered land to give priority.
K15 land charges search, results on K18 with 15 days priority
195
How does a lender check buyer insolvency for indivudual
Reg land - land charges search, K16 form
Unreg- K15 prcoess and it will be revealed there
196
How does a lender check for company insolvency
Company search, no priority period. If very worried, call up registry of winding up petitions at companies court on completion day
197
What form is used for completion info and what does it contain?
TA13 and contains key handover info, place and method of completion, docs given on completion and exact payable amount AND any undertaking from seller to redeem mortgage. DS1, DS3 and confirmation of release usually given to show this
198
What does a lender expect to be in place before releasing mortgage for buyer
- Title certificate
-Borrower solvency search
-Clear OS1R for lender
-Executed but not complete mortgage deed.
Buyer sol will usually send financial statement to client advising of funds needed
199
How is completion usually done? 3 methods
On phone
IRL
By post (seller sol agrees to act as agent for buyer sol and does whatever would have been done irl. When money received info is posted 1st class and buyer sol informed
200
How does the sellers mortgage get dsicharged by the lender
By DS1 sent to seller solicitor, or E-DS1 or electronic discharge (automatic). If choose either digi options then a form isnt sent but a confirmation of discharge is instead
201
How is SDLT/LTT handled are completion
Paid to relevant agencies and given either a SDLT5 or WRA certificate.
202
What is the deadline to register charges at company house
21 days of completion otherwise there could be void
203
How does the buyer solicitor register already registered land in the buyers name
Registered land - AP1 form with DS1/SDLT. DI needed with overriding interests and any mortgage docs
204
What is needed to register a mortgage
- certified copy of mortgage deed and certified copy of certificate if a company/written confirmation by solicitor this is the same as the real one
This is made before priority expiration
205
How does unregistered land get registered with new owner info?
FR1 with accompanying Docs List. DL has-
evidence of title docs
pre contract searches
contract
title reqs and replies
pre completion searches
transfer deed
seller mortgage receipt
SDLT/LTT certif
Form DI
Any mortage docs
206
What remedies are there for delayed completion
Contractual compensation as per the contract
Common law - putting party back into position they would be in (usually financial)
Notice to complete - after agreed time passes on completion date. 10 working days until rescission
Rescission- only really used if seller error comes from fraud/recklessness or bueyrs would have to accept different property
207
What is the S.M.A.R.T undertakings rule
Specific, measurable, accurate, realistic and timed
208
What are the 2 strands of controlled development
Operational development (building, engineering etc)
Material change of use
209
What is possessory title
The proprietor is in possession of the property, but has lost title deeds or claiming through adverse possession.
210
What is qualified title
Granted when there is a specific identified defect which the Registrar feels cannot be overlooked or ‘cured’ by the grant of absolute title.
211
What incumbrances does the charges register recognise
a) Covenants (positive or restrictive)
b) Easements (e.g. right of way)
c) Charges (mortgages)
d) Leases (over whole or part)
e) Notices registered by third parties claiming an interest in the property
212
When do leases require registration
* Leases of more than seven years (i.e. 7 years plus a day) require registration. Also, notices in Charges register of the Landlord’s title.
* Lease not exceeding seven years and equitable leases where the tenant is in occupation may be enforceable as overriding interests.
* Legal leases in unregistered land will be created by deed and will be on the deeds scheduled in the epitome of title.
213
What happens on death of the parties?
Should either party die before completion, this has no effect on the contract. The Personal Representatives of the deceased are obliged to continue with the contract.
ss 14-19 Law of Property (Miscellaneous Provisions) Act 1994 contain provisions to assist the other party should the inevitable delay require the service of completion notices.
214
What happens if a party become bankrupt
Bankruptcy of the parties would not normally have any effect on the contract. The trustee in bankruptcy will take on the duties of the appropriate party.
If the trustee in bankruptcy is appointed on behalf of the buyer, he may, however, decide to disclaim the contract, in which case the seller can retain the deposit.
215
What are some terms a licenensee generally has to follow as standard
See SC 5.2.2
The Buyer;
* is a licensee and NOT a tenant;
* cannot transfer the licence to another party;
* may allow members of his household to occupy the property;
* Must pay or indemnify the seller against all outgoings and expenses in respect of the property;
* Pay the Seller’s fee at the contract rate on a sum equal to the PP (less any deposit paid) for the length of the licence;
* Is entitled to any rents or profits from any part of the property he does not occupy;
* Is to keep the property in as good a state of repair as it was when he went in to occupation (except fair wear and tear) and must not alter it;
* If the property is leasehold, not to do anything which would breach the Seller’s obligations under the lease; and
* Is to quit the property when the licence ends.
