Legal Writing - Investigation of Title

Question 1

What to ask the seller if the property has the benefit of rights regarding soil, water, gas and electricity

Answer 1

1) Confirm whether or not there have been any disputes about shared items
2) Confirm which of the sewers, drains ect. are still used jointly
3) Give details of any costs (or demands for costs contributions) that have been incurred by the seller or their predecessors in maintaining the shared items and how arrangements for collecting contributions and maintaining the shared items are organised

Question 2

What to ask the seller if there is a mines and minerals exception

Answer 2

1) Provide details as to who has the benefit of the exception
2) Has the right to mine been exercised in the past
3) Has it caused any damage to the property
4) Is the seller aware of any proposals to mine in the future - provide details

Question 3

What to ask the seller if there is a restriction regarding disposition by sole proprietor

Answer 3

1) Please confirm that they are dead and to provide a copy of their death certificate
2) Confirm that they will be appointing a second trustee at their own cost and that the 2nd trustee will be joining the transfer to ensure that any beneficial interests in the property are overreached
3) Confirm the identity of 2nd trustee

Question 4

What to ask the seller if the restrictive covenants aren’t known

Answer 4

1) Please provide details
2) Has the seller or predecessors obtained a restrictive covenant indemnity insurance policy and if so to provide a copy
3) Is the seller aware of any disputes in relation to these covenants

Question 5

What to ask the seller if the restrictive covenants aren’t known - What to do if the seller doesn’t know what they are

Answer 5

Consider obtaining restrictive covenant indemnity insurance it may be that the sellers have a policy already which can be assigned to the buyer. If not the sellers should pay for a policy to cover the buyers as it is a defect in title

Question 6

What to ask the seller if there is a unilateral notice

Answer 6

1) Please confirm the nature of the interest protected by the unilateral notice
2) Please confirm that the notice will be cancelled or withdrawn before exchange

Question 7

What to ask the seller if the road is private and the client wants to use it for access

Answer 7

1) Try and establish if the easement has arisen by long user
2) Negotiate with owner to grant easement or licence
3) Establish what the arrangement for maintaining road are
4) Need to see if there is an express easement on title

Question 8

What to do if a road isn’t adopted and there is no evidence of an express easement - Overall

Answer 8

1) The client will need to establish/acquire a right to use it. - Two options prescription and the negotiation
2) Ask seller if there are any current private arrangements for maintenance of the road and if so for details of previous payment
2) Ask a surveyor to report on the condition of the road

Question 9

What to do if a road isn’t adopted and there is no evidence of an express easement - See if seller’s have a prescriptive easement

Answer 9

See if the sellers and previous owners may have acquired an easement by prescription (at least 20 years’ long user). Need to ask if the sellers have driven their cars along road without permission, force or secrecy. If so we will need to obtain statutory declarations as to this use to submit to LR to have it registered as an easement on the register

Question 10

What to do if a road isn’t adopted and there is no evidence of an express easement - Can’t show prescription

Answer 10

Negotiate with the owner of the lane to grant they buyers an easement or failing that a licence. This likely to involve payment by the buyers to the owners of the lane. We can find the owners by asking the sellers or by carrying out a PIM searcg