mocks Flashcards
equitable leases
- in writing
- signed by or on behalf of both parties
- contained all the agreed terms
- an equitable lease is an interest affecting a registered estate and should be registered as a notice on the charges register of the landlords title
- even if not registered - if they are in actual occupation and it is clear from the facts that the buyer has actual notice of the lease (obvious on a reasonably careful inspetion)
equitable intests under a trust
constructive -
- agreement between the legal owners of the house and they rely on the agreement to their detriment by contributing financially to the costs.
under s 12 tlata a beneficiary with an interest in possession in property held under a trust of land has the right to occupy that property if the purpose of the trust included making the land available for the occupation of the beneficiaries or if the trustees hold the land so that it is available for the beneficiaries to occupy.
res gestae evidence
the test for admissibility of res gestae evidence was set out in r v andeews:
- the primary question which the judge had to ask himself was can the possibility of concoction or distortion be disregarded?
- consider the circumstances in which the particular statement was made in order to satisfy himself that the event was so unusual or dramtic as to dominate the thoughts f the victim so that his utterance was an instinctive reaction to the event
- ## it has to be so closely associated with the event that it could be fairly be said that the mind of the declarant was still controlled by the evebt.
SDLT and LTT
- property in wales subject to ltt
- no relief under ltt for first time buyers.
criminal damage lawful excuse -
- belief need be only honestly held - not affected by intoxication.
trustees appointing agents
the trustees must enter into a written agreement with the agents when appointing them, including a written policy statement.
it is not possible to appoint a beneficiary as an agent.
- under the trustee act 2000 to appoint an agent to undertake all the invest ment related activities of the trust. the trustees need not directly take any investment activities themselves once the agent is appointed although they must regulary review the activities of the agent.
in what circumstances should a solicitor acting on a sale and purchase of a commercial property recommend that in the contract the purchase price is expressed as inclusive of vat.
an insyrance company is VAT sensitive which means it makes exempt supplies and may not be able to recover any vat it has to pay on the purchase price.
a seller should never be advised by its own solicitor to make the purchase price inclusive of vat. this is becuase if the supply is standard rated as with a new building or it wants to opt to tax in order to recover vat paid on refurbishment or the law changes the vat staus between the sale between exchange and completion, the seller will be unable to add the vat to the agreed price.
diminished responsibility
defence - if they are able to prove on the balance of probabilities that they have an abnormality of mental functioning arising from a recognised medical condition, which substantially impaired her ability to form a rational judgement and was a contributory factor in the victims death.
capital gains tax
Private residential relief is not available for investment properties.
if the clients total capital gains for the year exceed the annual exemption then it will be payable.
rent review provisions
if rent review provisions were excluded from the lease this would benefit the landlord as a tenant would pay more for a lease with no rent review clause in it because of the certainty of the rent which would not increase during its term.
concurrent and consecutive sentences
a prisoner will generally be released after serving half their sentence.
accomplice
actus reus of accompice liability - aids the offence.
outgoing trustees
outgoing trustee can retire under s 39 of the trustee act without being replace so long as there will be two trustees still in office and the trustee retired by deed and the other trustees consent.
fraud
a person commits fraud if they dishonestly make a false representation and intend by making the representation, either to make a gain for themself or another or to cause loss to another or to expose another to the risk of a loss and thye know that the representation is untrue or misleading or know that it might be.
beneficiaries trust - right to information
the beneficiaries of a trust are entitled to see the trust deed, trust accounts and schedule of investments - cannot refuse to supply these documents.
under no duty to give reasons for the decisions that relate to truste powers where some form of judgement is involved.
beneficiaries are not entitled to documents which record why trustees exercised their discretion in a particular way. it is possible for the beneficiaries to apply to court in an attempt to secure the disclosure of the minutes under the courts inherent jurisdiction to supervise the administration of trusts but only if this is in the interest of all parties and unlikley to cause disharmony.
PRs removal
once a pr has accepted office, the appointment is for life unless the pr is removed by the court under s50 of the adminstration of justice act.
via application to the court.
an application can be made by the beneficiaries, or the pr themselves.
the court has a discretion to replace a pr who has been removed but does not have to unless there is only one pr remaining.
the pr can retired but would need to apply to the court.
criminal damage
HONESTLY BELIEVED - SUBJECTIVE TEST.
the court will decide objectively what the defendants purpose is and this must be to protect the property. thereafter the court the question is whether the man honestly believed the property was in need of protection and the menas adopted were reasonable - not whetehr a reasonable person would have.
deposits as stakeholders / agents
the stahdard conditions and the standard property conditions both provide that the seller can rescind the contract and forfeit and keep the deposit if the buyer fails to complete.
if the deposit is paid to the sellers solicitor as an agent for the seler, it means the sellers solicitor can pay the deposit to the seller without waiting for completion.
standard conditions and the standard commerical property conditions both provide that the funds to pay the deposit must come from an account at a clearing bank in the name of a conveyancer.
what is the max time a person can spend in custody between his first appearance in the magistrates court and the start of their trial
56 days from first appearance to the start of the summary trial for an either way offence when the decision to proceed to summary trial is taken within 56 days
70 days is the relevant time limit from first appearance to the start of the summary trial for an either way offence where the decision to proceed to summary trial is not taken with 56 days.
182 days is the max period of custody when a case is sent for trial to the crown court from the time when the accused is sent for trial and the start of the trial in the crown court.
undertakings
even if the word undertaking is not used (e.g. making a promise0.
not neccessary to include the word undertake for an oral/written statement on which reliance is placed, to consistute an enforceable promise.
the undertaking is binding both on the individual and the firm.
accountants reports
only accountants reports that are qualified need to be submitted to the sra. a report will be qualified when the firm has not complied with the sra accounts rules.
the firm is required to obtain an accountants report within 6 months of the end of the accounting period, the firm does not neccessarily need to submit the report to the sra unless it is qualified.
exceeds 2 million - must get an accountants report.
con29
reveals planning permissions
in o
fla 1996
the partner can claim a right of occupation under s30 so long as the property was or is intended to be the matrimonial home, and as long as the partners are still legally married or in a civil partnership.
however in order to protect the interest it must be regsitered as a notice on the charges refister of the proeprty by the date of registrattion of a buyers interest.
claims for provision
a spouse can claim for general provision as is reasonable whether or not the privision is required for maintenace.
child is one of the catergories the claim is only for such general financial provision as is reasonable to recieve for maintenance.
letter of wishes taken into account but not conclusive.
s33 wills act
provides that where a will contains a gift to the testattors child and that beneficiary dies before the etstator elaving issue of their own who survive, the gift does not lapse but instead passes to the beneficiaries issue.
lapsed - predeceased e.g.
adeemed - no longer owned by the testator.
exercising discretion - trustees
trustees exercising any function relating to the land must consult any beneficiary who is of full age and beneficially entitled to an interest in possession in the land and so far as consistent with the general interest of the trust, give effect to the wishes of any such beneficiary. the duty to consult has not ben excluded
only relevant to interests in possession.
- consent for video identification procedures
the police and criminal evidence act 1984 code d state that a supsect could be invited to take part in an identification procedure and that suspect can refuse to consent.
consent of a juvenile is only valid if their parents or guardians consent is also obtained unless the juvenile is under 14 when their parents or guardians consent is sufficient in its own right.
recklessness - subjective test
the risk must be unjustified - an awareness of even the smallest risk of causing the harm is sufficient
what the reasonable person would have forseen is irrelevant.
indirect intent
the consequence must be virtually certain.
qualified freehold title
lease may only be registered with good leasehold title. this might make the lease difficult to sell so should raise additional enquiries
right to light
recognised negative easement no general right to light, the right to light must be via a defined aperture benefitting from the right.
there can be no easement for an uniterrupted view.
private residence relief
a seller of a residential property is likley to obtain the benefit of principal private residence relief on the sale of a dwelling house used as the sellers main residence.
however the relief may be lost on any part of the house that is used exclusively for business use.
period of absence - apportunied to reflect the proportion of each year they were there.
s20 of the adminstrattion of justice act
enables the court to order a will to be rectified so as to remedy a failure to carry out the testators intentions in consequence of a clerical error.
also enables a court to order a will to be rectified so as to remedy a failure to cary out the testators intentions in consequence of failure to understand instructions
prs income tax on dividends
prs may income tax on dividends at the basic rate only - 7.5%
prs annual exemption 12,300.
a transfer of an asset to a beneficiary is not a disposal for capital gains tax purposes
suspended sentences
the court can impose a suspended sentence if it considers that particular circumstaces
a cusotidal sentence of at least 14 days but no more than 2 years may be suspended.
a custodial sentence can be suspended for betweeen 6 months and 2 years.
not mandatory to impose requirements on the defendant
in relation to the provision of disclosure and information by the police to the solicitor at the police station
the police must give the solicitor sufficient information to enable them to understand the nature of any such offence and why they are suspected of committing it.
the police are not obliged to provide the solicitor with any evidence of the case although they normally will.
the custody officer should allow the solicitor to inspect the custody record and detention log.
the custody officer is not invovled with the investigation of the offence and the decision rests with the investigating officer who has sufficient knowledge of the case to make that decision.
the officer who discloses the information shall make a record of that information disclosed and when it was disclosed.
trustee appointing others in their place
will automatically be liable for any defaults by their appointment.
other trustees: failed to exercise such care as an ordinary prudent business person would in the management of their own affairs.
administrators
if a beneficiary is under 18 there will need to be 2 adminstrators.
sdlt
payable on the total purchase price plus vat - 14 days from completion.
what is the earliest date on which the buyer may be required to complete the assignment if the landlords consent has not been given by the contractural completion date.
under the standard commercial property conditions, the earliest date which a buyer may be required to complete the assignment is 5 working days after the seller gives written notice to the buyer than conset has been obtained or a court has declared consent has been unreasonably held.
