M VI Flashcards
The occupier of a large country estate organises a craft fair inside a large tent erected on an open field on the estate. To raise funds for the estate, exhibitors at the fair are charged a fee for a stall. The public are allowed free entry to shop at the fair. The floor of the tent is covered with rush matting for visitors to walk on. After the first few shoppers have entered, it becomes clear that the rush matting is curling up at the edges and is causing a tripping hazard. So, the occupier puts up a large sign at the entrance to the tent saying: ‘please take care, uneven floor’. Unfortunately, a lady visiting the craft fair to shop trips on the curled edge of the matting and is injured.
In an action by the lady against the occupier under the Occupiers’ Liability Act 1957 (‘the Act’), which of the following is correct?
The occupier is not likely to be liable to the lady because the sign constituted a warning to persons using the premises and appears to have been sufficient to discharge the duty of care owed to them.
The occupier is not likely to be liable to the lady because a tent erected in an open field is not a premises within the meaning of the Act, so no duty of care arises under the Act.
The occupier is not likely to be liable to the lady because entry for the public was free, so no duty of care arises under the Act.
The occupier is likely to be liable to the lady because liability for death or personal injury cannot be excluded.
The occupier is likely to be liable to the lady because he owed her a duty of care under the Act, and the breach of this duty caused the injury which she suffered.
E) The occupier is likely to be liable. Under the Occupiers’ Liability Act 1957 (‘the Act’) the occupier of premises owes a duty to lawful visitors to take reasonable care to see that they will be reasonably safe in using the premises for the purposes for which they are invited or permitted to be there. So, the occupier here owed the lady a duty of care. On the facts, he appears to have failed to take such reasonable care. He became aware that the rush matting was causing a tripping hazard but did not do anything to make it safe. While the notice (‘please take care, uneven floor’) is a warning of the danger, the Act provides that a warning of the danger does not, without more, discharge the occupier’s duty unless it enables the visitor to be reasonably safe. On the facts, the notice did not enable visitors to be reasonably safe because shoppers distracted by the displays are not likely to notice the curled edge of the matting. So, the occupier likely was in breach of his duty. Such breach clearly caused the damage suffered. (A) is not correct because, on the facts, the warning notice was not sufficient to discharge the occupier’s duty of care to the lady, as explained above. (B) is not correct. The definition of premises under the Act extends to cover any fixed or moveable structure, and so would cover a tent erected on the land. So, a duty of care does arise under the Act in respect of damage caused by the state of the premises, which would include the state of the flooring of the tent. (C) is not correct. The duty under the Act is owed by an occupier to his lawful visitors. A lawful visitor is a person whom the occupier has invited or permitted to enter the premises. Payment for entry is not a condition of being a lawful visitor. Therefore, the occupier did owe a duty of care to the lady. (D) is not correct even though it states the correct result. It is true that liability for death or personal injury caused by a breach of the occupier’s duty under the Act cannot be excluded. However, the notice (‘please take care, uneven floor’) does not purport to exclude liability. Rather, it is simply a warning, and not adequate to discharge the occupier’s duty of care, as discussed above.
An article in a newspaper falsely stated that the manager of a professional football team had been siphoning off proceeds from ticket sales to support his gambling habits, with the result that the club was suffering serious financial difficulties. The manager wishes to bring an action against the newspaper for defamation.
Which of the following statements describes an element which the manager must prove in order to make a successful claim against the newspaper for defamation?
The manager must prove that the newspaper was negligent in publishing the article.
The manager must prove that the newspaper acted with malice in publishing the article.
The manager must prove that the newspaper did not reasonably believe that publishing the article was in the public interest.
The manager must prove that the newspaper article caused him to suffer specific quantifiable financial loss.
The manager must prove that the statement is likely to cause serious harm to his reputation.
(E) The manager must prove that the statement is likely to cause serious harm to his reputation. For a successful claim in defamation, the manager must prove that a defamatory statement which referred to him was published. On the facts, the statement clearly referred to the manager and was published. A defamatory statement is one which would tend to lower the claimant in the eyes of right-thinking members of society, which appears to be satisfied on the facts. Statute also provides that a statement is not defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of the claimant. So, the manager must establish this to be successful. (A) is not correct. Negligence is not a requirement for a defamation action. (B) is not correct. Proof of malice is not a requirement for a defamation action. (C) is not correct. The newspaper may seek to rely on the defence of publication on a matter of public interest. The burden would be on the newspaper to prove both that the defamatory statement was on a matter of public interest and that the newspaper reasonably believed that publishing the statement was in the public interest. The defence might apply to allegations of corruption in sport. However, this choice does not describe this correctly because the defendant has the burden of proving this defence; the claimant does not have the burden of disproving it. (D) is not correct. The defamatory statement was published by the newspaper in written form and so is libel. For a successful claim in libel, it is not necessary to show specific quantifiable financial loss (special damage). The claimant only needs to establish general damage to reputation itself which must be sufficiently serious, as explained above.
A claimant has issued proceedings against a defendant for trespass. The defendant files an acknowledgment of service within a week of being served. The claimant believes the defendant has no viable defence and so immediately applies for summary judgment, including written evidence to support the application.
Which of the following best states the legal position with regard to the application?
The application was made too early, as the defendant had not yet filed a defence.
The application was within a proper timescale, and the defendant must now serve a defence
The application was made too early, as the claimant had to wait at least 14 days after the defendant acknowledged service before applying for summary judgment.
The application was made too early, as the claimant had to wait at least two days after the defendant acknowledged service before applying for summary judgment.
The application was within a proper timescale, and the defendant must serve evidence in response at least seven days before the hearing.
(E) As soon as the defendant files an acknowledgment of service, it is open for the claimant to make an application for summary judgment. If the claimant applies for summary judgment following acknowledgment of the claim and includes written evidence to support the application, the defendant must serve evidence in response at least seven days before the hearing on the application. (A) is incorrect because the claimant does not need to wait until the defendant has filed a defence. (B) is incorrect because the defendant is not required to serve a formal defence at this point (although it may be helpful in opposing the application). (C) and (D) are incorrect because there is no two-day or 14-day waiting period.
A machine operator sued their former employer in the County Court for an injury that arose whilst operating a machine in the employer’s factory. The claim was heard before a Circuit Judge. The employee lost and would like to appeal on grounds that the judgment is unjust because of a serious procedural or other irregularity in the proceedings.
Which of the following courts have the power to grant permission for the appeal?
The High Court only.
The Court of Appeal only.
The County Court which heard the case only.
The High Court and the Court of Appeal.
The County Court which heard the case and the High Court.
(E) A party wishing to appeal must make an application to appeal in either the court where the decision was made or the court in which the appeal would be heard. Here, the case was heard by a Circuit Judge in the County Court. Cases heard by Circuit Judges are appealed to the High Court. Therefore, the County Court which heard the case and the High Court may grant permission for the appeal here. (A) and (C) are incorrect because they each fail to mention the second possibility. (B) and (D) are incorrect because the Court of Appeal hears appeals (and can grant permission for an appeal) only from a decision of the High Court.
A seller agrees to sell his house to a buyer. The seller agrees to leave all of his bedroom furniture at the property on completion. The parties are using the Contract Incorporating the Standard Conditions of Sale (5th edition - 2018 revision) in the transaction. The seller’s solicitor agrees to draft a special condition to insert into the contract to deal with this point.
What are the special conditions?
E) The special conditions are the part of the contract containing the conditions that are particular to that transaction. Any issue agreed between the seller and the buyer must be included in the contract for the issue to be legally binding. Thus, the issue of the seller agreeing to leave furniture at the property on completion would be inserted into the contract as a special condition since it is specific to this transaction. (A) is incorrect because the part of the contract which covers issues such as formation of the contract, service of notices, condition of the property, completion, and remedies is known as the ‘standard conditions of sale’. (B) is incorrect because the key transactional details regarding the parties, the purchase price, and details of the property are known as the ‘particulars of sale’. (C) is incorrect because the document containing practical information for the buyer about the property is known as the ‘Property Information Form’. (D) is incorrect because the requirement for a contract for the sale of land to be in writing is contained in a statute (section 1 of the Law of Property (Miscellaneous Provisions) Act 1989), not the contract.
A solicitor acting for a buyer has started their investigation of the unregistered title which has been provided by the seller’s solicitor. The buyer’s solicitor notes that there is a conveyance dated 5 June 1995 to the current seller contained in the epitome of title.
Which of the following best indicates how the buyer’s solicitor should proceed?
The buyer’s solicitor should raise pre-contract enquiries and seek confirmation that the seller has observed the covenants contained in the conveyance dated 5 June 1995.
The buyer’s solicitor should require the seller’s solicitor to prepare an application for first registration which the buyer’s solicitor can submit to the Land Registry following completion.
The buyer’s solicitor should return the epitome to the seller’s solicitor requiring them to make an application for first registration of the title to the land.
The buyer’s solicitor should report to their client indicating that the title is defective and advising their client to withdraw from the transaction.
The buyer’s solicitor should request the original title deeds from the seller’s solicitor and submit an application for first registration of title to the land.
(C) The best way for the buyer’s solicitor to proceed would be to return the epitome to the seller’s solicitor and require them to make an application for first registration of the title to the land. The conveyance is dated after 1 December 1990, and it is clear from the facts that the title is still unregistered because they refer to the epitome of title. The conveyance dated 5 June 1995 was a trigger for first registration. Accordingly, requiring the seller to make the application for first registration is the appropriate response. (A) is incorrect both because the question does not make any reference to covenants contained in the conveyance and because it does not address the central point of the question – the fact that the 5 June 1995 conveyance triggered the requirement of first registration. (B) and (E) are incorrect as the buyer’s solicitor would not make the application for first registration themselves; rather the seller’s solicitor must do so prior to exchange. (D) is incorrect as it is too extreme (assuming that the buyer wants the property). There may be a delay in the transaction (and the buyer’s solicitor should certainly inform the buyer of that fact), but the fact that first registration should have been carried out is not reason enough to withdraw if the buyer is keen to obtain the property.
A solicitor is acting for a developer who is purchasing a plot of land for development. The developer has been told that the property has the benefit of a planning permission to build two houses, which is why the plot is of interest to the developer. The developer has carried out a site visit to the plot and has noted that it is a bare piece of land. The developer will need to clear the grass and bushes on the land before building starts. The solicitor’s local search has revealed a planning permission for the development of two houses which is dated four years ago.
What advice will the solicitor give their developer client in this regard?
The enforcement period for the planning permission is four years so the developer has no concerns in this regard.
The planning permission is more than three years old and has not been implemented, so it has lapsed.
The planning permission is less than five years old, so the developer has a year within which to commence development.
The planning permission is less than 10 years old so the developer has six years within which to commence development.
The developer should commence building the two houses and then apply to the local authority for retrospective planning permission.
(B) The solicitor should advise that the planning permission is more than three years old and has not been implemented, so it has lapsed. After planning permission is issued, the development must commence within three years of the date of the permission or it lapses. Here, the facts indicate that permission was granted four years ago and that the site is a bare piece of land. Therefore, it is clear that no development has commenced. Thus, it lapsed. (A) is incorrect. Do not get muddled with time limits and planning. The enforcement period for building without planning permission is four years (that is, if development is undertaken without permission, the local authority has four years to bring an enforcement action) but there has been no breach as yet because no building was commenced. (C) is incorrect. The time limit for commencement of development under a planning permission used to be five years but it is now decreased to three years. (D) is incorrect, as 10 years is the enforcement period for unauthorised change of use. (E) is incorrect. The developer would run a risk of enforcement, and there is no guarantee that he would get retrospective planning permission for the works.
A solicitor in a conveyancing department is about to complete on a purchase for a buyer client. The solicitor has submitted the required certificate of title to the buyer’s lender.
What is the certificate of title?
It is a document confirming to the lender that the title is good and marketable only.
It is a document confirming that the title is good and marketable and acts as a request for the release of the mortgage advance.
(C) The certificate of title is a document confirming that the title is good and marketable and acts as a request for the release of the mortgage advance. Thus (B) is incorrect as this only describes one of the functions of the certificate of title. And (A), (D), and (E) are incorrect because they do not correctly describe the function of the certificate of title.
Jessica, Keith, Lionel and Margaret were friends. In 2012 they purchased the freehold property “Cliff Cottage” for occasional use as a holiday home. The conveyance to them contained an express declaration that they were beneficial joint tenants. In 2015, Keith wrote letters to each of the others saying that he wanted the property sold so that his share could be paid to him out of the proceeds of sale. His letters were properly delivered. The property was not sold.
Keith died leaving all his property to Nicola.
In 2015 Jessica, by a Deed of Gift, gave her beneficial interest to Nicola. In 2017 Lionel died leaving all his property to Nicola.
Is the following statement True or False?
Both Jessica’s and Lionel’s gifts will pass their beneficial shares in the property to Nicola.
the statement is false. Beneficial interests held on a joint tenancy cannot pass by will. So, Jessica’s lifetime gift will be effective as an example of severance by alienation which complies with s53(1)(c) LPA 1925, but Lionel’s gift in his will does not pass his share to Nicola.
A trainee solicitor is dealing with their first completion involving an unregistered title. The trainee notes that a full land charges search has been carried out.
What is the significance of the search?
It gives rise to a 30-working-day priority period within which completion should take place.
It gives rise to a 14-working-day priority period within which completion should take place.
It gives rise to a two-month priority period within which completion must take place.
It gives rise to a 15-working-day priority period within which completion should take place.
It gives rise to a two-week priority period within which completion should take place.
(D) If title is unregistered, a full land charges search must be carried out against the full name of the current estate owner for the full period of their ownership. The search result confers a 15-working-day priority period during which the transaction should complete. Any application to register a land charge against the owner made during the 15-day period will be held until the buyer’s priority period has expired. If the transaction completes during the 15-day period, such registration will be ineffective, but if completion goes beyond the 15-day period, the registration will be effective against the buyer and the solicitor will probably be liable for the costs of removing the land charge due to negligence. Thus, the remaining answers are incorrect.
A solicitor has agreed to prepare a presentation to explain the process of completion to the new recruits in a conveyancing department.
What are the methods of completion that the solicitor will refer to in the presentation?
By agent, by physical possession, by personal attendance.
By phone, by personal attendance, by post.
By post, by agent, by physical attendance.
By agent, by phone, by personal attendance.
By personal attendance, by agent, by post.
(E) These are the three methods of completion: personal attendance, agent, post. Do not confuse these with the methods of exchange: person, post, and phone. It is not possible to complete by phone. Thus, the remaining answers are incorrect.
A woman has obtained a grant of probate and has instructed a solicitor to act for her in relation to the sale of her deceased mother’s property. The woman is selling the property on behalf of the estate as a personal representative but has never lived in or visited the property herself.
Which title guarantee is most appropriate in this circumstance?
Full title guarantee Indemnity title guarantee No title guarantee Unregistered title guarantee Limited title guarantee
(E) A limited title guarantee is narrower in scope than a full title guarantee; in it, the seller merely warrants that the seller has not created any charges or granted any rights during their period of ownership that have not been disclosed in the contract. A limited title guarantee is typically given by a seller with less knowledge or involvement with the property and is most appropriate when the seller is a personal representative. (A) is incorrect. A full title guarantee includes a guarantee that the seller is entitled to sell the property, that they will do all in their power to transfer the purported title to the buyer, and that they are selling the property free from all charges or encumbrances other than those disclosed in the contract. It is generally given by a seller who owns the full legal and equitable interest in the property and has lived at the property. In most cases, a personal representative will not have this level of knowledge and so this guarantee would not be appropriate. That is the case here, as the personal representative has neither visited nor lived at the property. (B) and (D) are incorrect. There are no such title guarantees. (C) is incorrect. No title guarantee is typically given by a seller who has no knowledge of the property at all (for example, a mortgagee in possession).
A man has instructed a solicitor to act in relation to the sale of the man’s house. The Contract Incorporating the Standard Conditions of Sale (5th edition – 2018 revision) will be used, unamended. The buyer is offering a 10% deposit on exchange of contracts. The seller has a related purchase in which he is buying a holiday home in France and he wishes to use the deposit towards this purchase.
Can the seller use the deposit for his related purchase?
No, because the standard conditions of sale permit the use of a deposit for a related purchase of a property only for the seller’s residence in England and Wales.
Yes, because the standard conditions of sale permit the use of a deposit for a related purchase of a property for the seller’s residence anywhere in the world.
No, because the standard conditions of sale permit the use of a deposit only for a related purchase of a property which the seller will exclusively rent out.
No, because the standard conditions of sale do not permit the use of a deposit for any related purchase of a property.
Yes, because the standard conditions of sale permit the use of a deposit for a related purchase of a property when the deposit is at least 10%.
(A) The seller cannot utilise the deposit for the related purchase in France because the standard
conditions of sale permit the use of a deposit only for a seller’s related purchase of a property for their residence in England and Wales. Here, the parties are using the Contract Incorporating the Standard Conditions of Sale unamended, and seller’s related purchase is a property in France. Therefore, the deposit cannot be passed on in this chain of transactions. (B) is incorrect because, as explained above, the standard conditions of sale do not permit the use of a deposit for a related purchase that is outside England and Wales. (C) is incorrect because the standard conditions of sale do not permit the use of a deposit for a related purchase of a property that will not be used as the seller’s residence (and again, the property also cannot be outside England and Wales). (D) is incorrect because, as explained above, the standard conditions do permit the use of a deposit for a related purchase if this purchase is of a property in England and Wales that will be used as the seller’s residence. (E) is incorrect because there is no such term in the standard conditions of sale.
A married couple are buying a freehold house. Their solicitor has received the contract package from the seller’s solicitor.
Which document in the contract package will give the buyers practical information about the property, such as disputes and notices?
Leasehold Information Form. Standard Commercial Property Conditions. Pre-contract enquiries. Fittings and Contents Form. Property Information Form.
(E) The Property Information Form is the Protocol form which is completed by the sellers at the beginning of a sale transaction involving a residential property. It is supplied to the buyers as part of the contract package. Thus, the remaining answers are incorrect.
A lease of a commercial factory unit contains the following clause:
‘The tenant must not assign the whole or part of the demised premises to any person whatsoever without the prior written consent of the landlord’.
What is the name of the document which gives effect to the above clause?
A consent to assignment
A licence to assign
A licence to assign
A buyer is purchasing a 500-year-old cottage which he discovers is listed as a Grade II historic building. The buyer asks the estate agent for the Energy Performance Certificate (‘EPC’). The estate agent tells the buyer that an EPC is not required.
Is the estate agent correct?
No, because an EPC is required upon the sale of all properties.
Yes, because an EPC is not required for a listed building.
Yes, because an EPC is not required for a residential property.
No, because an EPC is required only if the property is less than 10 years old.
It depends on the energy efficiency of the property which would be revealed by the buyer’s survey.
(B) The estate agent is correct because an EPC is not required for a listed building. (A) is incorrect because it is overbroad. As just explained, an EPC is not required for sales of listed historic buildings. (C) is incorrect, as an EPC is required upon the sale of residential properties as well as commercial properties. (D) is incorrect, as an EPC is required for the sale of any non-listed building. Ten years is the relevant time period for which an existing EPC may be relied on.
A paralegal has just joined a conveyancing department. Their principal has given them a large bundle of unregistered title deeds and has asked them to prepare an epitome of title. The paralegal is not sure what an epitome of title is.
Which of the following statements best describes an epitome of title?
A chronological list of the unregistered title documents, together with the original listed documents.
A document which is at least 15 years old and which does not cast any doubt on the title.
A chronological list of the pre-root documents, together with copies of those documents attached.
The chronological list of ownership going back at least 15 years shown on the Property Register.
A chronological list of the unregistered title documents, together with a photocopy of those documents attached.
(E) The epitome comprises a chronological list of the documents of title together with a photocopy of those documents attached. (A) is incorrect because the epitome will not include original documents, but rather only photocopies of the originals. The original title deeds will not be sent to the buyer’s solicitor until completion. (B) is incorrect as it describes two elements of a good root of title – the epitome should show this, but these elements do not explain what an epitome is. (C) is incorrect because the epitome will not contain all of the pre-root documents; it will only list and include copies of documents going back to the root. (D) is incorrect as the Property Register is used with respect to registered land; an epitome is used to deduce title with respect to unregistered land. There is no Property Register for unregistered land.
A solicitor is acting on the purchase of a new build property for a client. The solicitor sees that the client has left a message because they are concerned about the upkeep of the road fronting the property.
How will the solicitor find out the information which the client is seeking?
The local search.
The commons registration search.
(A) A local search gathers information from the local authority. The first part of a local search reveals whether there are registrations by the local authority in the land charges register. The second part is a standard set of enquiries of the local authority which include enquiries about roads fronting the property, public rights of way, and planning entries and building regulations relevant to the property. A local search may also include optional enquiries.
(D) is incorrect because a commons registration search is an optional search which is performed when the property appears to abut common land or a town or village green to determine whether use of the property is restricted or burdened by its proximity to public land.
A solicitor is acting for the buyer of a factory unit. The replies to enquiries provided by the seller confirm that the seller built a small additional room on the rear of the factory unit three years ago. The seller could not produce evidence that planning permission was obtained, and neither could they provide a building regulations completion certificate.
There is some evidence that some of the work was not in compliance with building regulations. However, the solicitor is satisfied that the addition to the building fell within the permitted development rules and so the local authority would have no ground to bring an enforcement action with respect to the additional room.
Is the solicitor correct?
Yes, because planning permission was not required, and the local authority has only two years in which to enforce building regulations.
Yes, because planning permission was not required, and the local authority has only 12 months in which to enforce building regulations.
No, because although the local authority has only 12 months to take enforcement action for noncompliance with building regulations, they may seek an injunction to force compliance at any time.
No, because although the local authority has only up two years to take enforcement action for noncompliance with building regulations, they may seek an injunction to force compliance at any time.
No, because although the local authority has only up two years to take enforcement action for noncompliance with building regulations, they have 10 years in which to seek an injunction to force compliance at any time.
C) The solicitor is incorrect because even if planning permission is not required for building work, a building regulations completion certificate must be obtained from the local authority to confirm that the work has been carried out satisfactorily. Although the local authority has only 12 months in which to bring an enforcement action based on the failure to obtain a certificate, it may seek an injunction to force an owner to bring the property up to standards (if the work was not up to standards) at any time if the work is deemed to be dangerous.
A solicitor is acting for a first-time buyer regarding the purchase of a flat. The solicitor has received the mortgage offer which contains the following condition:
‘Solicitor must ensure that the borrower is advised to pay off existing credit card borrowing of £2,300 prior to drawdown of the loan.’
The solicitor has reported fully to the client on the terms of the offer. The client agreed to the terms, and the solicitor has exchanged contracts with the seller’s solicitor. As the completion date is near, the solicitor reviews the file and discovers that there is no record confirming that the client has repaid their credit card debt. Nonetheless, the solicitor prepares a certificate of title and submits it to the lender.
Has the solicitor breached any duties with respect to the buyer’s credit card borrowing?
Yes, because best practice demands that the solicitor obtains evidence that the credit card has been paid off before completion.
No, because under the circumstances, the solicitor does not have a duty to ensure that the credit card is paid off before completion.
Yes, because the client has not paid off the credit card before completion.
No, because the UK Finance Mortgage Lender’s Handbook prohibits lenders from imposing such a condition on the solicitor.
Yes, because the UK Finance Mortgage Lender’s Handbook requires solicitors to ensure their clients’ credit card debts are fully paid before submitting the certificate of title to the lender.
(B) The solicitor has not breached any duties because, under the circumstances, the solicitor did not have a duty to ensure that the credit card is paid off before completion. A solicitor has a duty to fulfil any undertaking the solicitor makes and to follow the lender’s instructions. Here, the lender instructed that the solicitor must ensure that the borrower is advised to pay off their existing credit card debt prior to drawdown of the loan. The condition only requires the solicitor to ensure that the borrower has been advised about the issue, and the facts make it clear that the solicitor has fully reported the conditions to the client. Therefore, (C) is incorrect. (A) is incorrect because there is no such ‘best practice’ requirement. (D) and (E) are incorrect because the Handbook does not address the borrower’s credit card debt.
