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Property Flashcards

1
Q

Options for tenant if landlord consent for alienation not forthcoming

A

1) Act without consent - risk damage and forfeiture

2) Court declaration to prove unreasonableness

3) Court order - seek damage and ask for injunction

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2
Q

Steps to contract out of security of tenure - LTA 1974

A

1) Warning notice from landlord to tenant - advise seek advice.

2) Declaration - simple if served 14 days prior to lease, statutory (ie signed in front of solicitor) if less than 14 days

3) Endorsement - reference in the lease to the notice and agreement to contract out.

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3
Q

What notice is needed for landlord to terminate lease protected by LTA ‘74?

A

Section 25

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4
Q

Process for serving section 25 notice?

A

Served at least 6 months but not more than 12 before termination date (can end on / after expiry date, not before)

Must contain section 30 details.

The tenancy will end on the date in the notice

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5
Q

Effect of section 26 request and conditions

A

Request from tenant to landlord for new tenancy. Landlord must reply within 2 months with s.30 grounds. After 2 months, tenant must apply to court to have lease renewed.

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6
Q

What is a Section 27 and what are the timings on this?

A

Tenant’s notice to landlord terminating the lease, served 3 months prior to expiry of tenancy.

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7
Q

Action for tenant / landlord after section 25 / counter notice to section 26 served

A

Tenant can apply to court to request new tenancy and challenging grounds

Landlord can apply to court to terminate tenancy.

If no application, will terminate on date in notice.

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8
Q

Acting for buyer and lender is ok when?

A

There is no conflict of interest or significant risk of such conflict that makes it unreasonable for solicitor to act

Standard mortgage and private residence

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9
Q

Investigating title - registered v unregistered

A

Registered - official copies filed with land registry (showing owners, price, date purchased, tenure, class, covenants, easements, mortgages, charges, restrictions)

Unregistered - look through title deeds that make up epitome of title. Good root and then 15 years of unbroken chain of ownership

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10
Q

Official copies - what’s contained in the various registers

A

Property register - describes property and rights affecting it
Proprietorship register - class of title, seller’s name, if teld as t in c , presence of indemnity covenant
Charges register - third party rights over property

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11
Q

Investigating title as the buyer - t in c / jt impact on actions needed to buy

A

T in c - must pay purchasing money to two trustees to ensure any other interest is overreached (may need to appoint a second trustee)

For JT, you need the death certificate if one died, if both just pay money to both.

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12
Q

Requirements for good root of title in unregistered

A

1) Dated before December 1990
2) Contain description by which property can be identified
3) Deals with legal and beneficial interests in property
4) Casts no doubt on seller’s title

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13
Q

Purpose of formula C and how this works

A

To allow for a chain of transactions, effectively solicitors agree to release contracts for a specific period

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14
Q

What are the two title guarantees and how do they affect the contract for sale?

A

Full title guarantee involves the seller has the right to sell the property, and that they aren’t aware that the property is burdened by incumbrances

Limited title guarantee involves the seller not being 100% sure on the burdens attaching to the land, but only that they haven’t created any new ones + not aware of any other new ones.

Both SCS and SCPCs need to be amended to reflect limited title guarantee

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15
Q

How many days till completion and time?

A

20 days to complete, after 2pm

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16
Q

What is the rate of compensation available for late completion, and how calculated?

A

Interest at law society rate (4% above Barclays interest rate)

Balance of purchase price minus deposit

From date of delay up to but not including day of completion

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17
Q

What are the rules on serving a notice to complete in terms of timing in terms of timings and serving rules for each method

A

Can be sent after 2 pm on date of completion and server must be able, willing and ready to complete.

Post - next working day.

email, fax - one hour after sending.

But note that if served afer 4 pm it’s the next working day

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18
Q

What is effect of serving a notice to complete?

A

It makes time of the essence meaning innocent party can terminate, rescind and claim damages if they haven’t completed within 10 working days of the notice

Buyer must also immeadiately pay the deposit or make up to 10%

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19
Q

What are the buyer’s solicitor’s post-completion steps and timings on these steps?

A

1) Registration with Land Registry (within 2 months) with registration fee

2) Pay SDLT - within 14 days of completion. HMRC then sends a certificate and then you can apply to register

3) Discharge existing mortgage - form DS3

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20
Q

What are the seller’s solicitor’s post completion steps and timelines?

A

1) Discharge the seller’s mortgage and provide evidence to buyer’s solicitor

2) Pay net proceeds to seller net of fees and liabilities

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21
Q

What documents do you need to register a conveyance with land registry?

A

1) Application form (Form AP1)

2) Transfer Deed (Form TR1)

3) Proof of SDLT payment

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22
Q

Difference between disclosing incumbrances - SCS v SCPCs

A

In the SCSs (residential) both latent and registered incumbrances need to be disclosed

In the SCPCs, only latent incumbrances

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23
Q

Define “Development”

A

Structual changes or additions to a building
Mining operations
Material changes of use

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24
Q

Planning permission - exempt

A

Interior alterations, building operations which do not materially affect external appearance, and changes of use within same class

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25
What are the time periods for serving an enforcement notice for a breach of planning laws?
10 year enforcement period from 24 April 2024, although if the works were carried out before this it’s 4 years.
26
What to advise a buyer on vis a vis breaches in planning legislation
Do proper LLC and CON29 searches to check if no breaches, or get certificate of compliance from local authority if time period has passed. Remember buyers are still on the hook and can be enforced against Could also be structurally unstable
27
What’s the process of forfeiting a lease as a landlord for non-payment rent?
Firstly, you need an express right of forfeiture in the lease. Secondly, you need to make a formal demand for payment unless arrears is for greater than 6 months or excluded in contract. Thirdly, landlord can then physically renter or issue possession proceedings in County Court. Tenants can get relief by paying into court.
28
What is the process for forfeiting a lease for other breaches bar rent covenants?
There must be right of forfeiture in the lease. A s.146 notice must then be served specifying the breach and asking it to be remedied within reasonable time. Only entitled to forfeiture where tenant fails to remedy breach within a reasonable opportunity (if capable of remedy).
29
What is the process for forfeiting a lease for breach of a repair covenant?
Where more than 7 years, at least 3 years to run on lease, tenant can serve a counter notice on landlord within 28 days of the s.146. Where counter-notice is served, landlord must apply to court to forfeit.
30
What can you do to ensure contract is safe where seller may fail to complete
Consider protecting contract by registering a Unilateral Notice (registered), or a c (iv) land charge (unregistered)
31
What form is used to discharge a mortgage over a property
Form DS1 (DS3 for part of the property)
32
When must the new owner be registered?
Total is 2 months after completion but to benefit from priority period this is different
33
10 days
Notice to complete period, after which buyer can rescind contract, claim damages and recover deposit
34
What is the language used for a Form A restriction in the proprietorship register
No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court
35
What is overreaching and when is it used?
Overreaching is the process of sweeping off a property any equitable rights in the land which are transferred to the purchase money paid. This is used in tenant-in-common situations where the deceased JT passes property to someone else but surviving co-owner wants to sell DON’T NEED TO DO THIS WHERE MORE THAN ONE SURVIVING CO-OWNER
36
What steps need to taken to effectively overreach?
Appoint a second trustee and get them to join transfer deed Make sure to get a deed of appointment Ask seller’s solicitor for death certificate which will permit overreaching to occur
37
What to ask for when dealing with a PR selling a share in property
Copy of the grant of representation + expect to be given limited title guarantee
38
What to make sure of when dealing with sale from surviving joint tenant
Obtain a death certificate, ensure severance did not take place (appoint extra trustee if unsure)
39
What must you check when dealing with a mortgagee
Check they have the power to sale, whether the power has arisen, whether the power is exercisable, and whether the seller is the first or later ranking mortgagee (need agreement from others ranking above) Expect limited title guarantee
40
Freehold transaction: pre exchange steps
1) Instruct solicitors 2) Draft contract provided by seller’s solicitor to buyer’s solicitor to check terms with buyer 3) Seller’s solicitor deduces title (know registered v unregistered) 4) Pre-exchange searches with authorities, enquiries with seller, inspection (perhaps qualified surveyor), investigate title to ensure free from encumbrances 5) Mortgage offer
41
Freehold transaction: exchange of contract
1) Exchange done over phone, contract becomes binding 2) Risk passes to buyer, therefore needs insurance 3) Legal estate held on trust by seller or buyer 4) Deposit sent to seller’s solicitor from buyer’s solicitor
42
Phase (1) - pre-exchange
I - instruct solicitors D - deduce title D - draft contract I - investigate title V - verify inspection E - enquiries and searches S - secure mortgage
43
Phase (2) - exchange
B - binding contract after exchange I - Insurance bought by buyer R - Risk passes to buyer D - Deposit sent to seller’s solicitor S - Shifts in beneficial ownership
44
Phase (3) - pre-completion
P - Pre-completion requisitions (final checks on money transfer, key handover, etc.). R - Redemption statement (seller’s solicitor obtains it from the bank). I - Inspection (ensure the property’s condition has not changed). S - Statements (completion and financial statements prepared by the seller’s solicitor). T - Transfer deed (signed but left undated). I - Instruction to discharge mortgage (seller’s solicitor undertakes to discharge the mortgage). N - Notice of priority (buyer’s solicitor conducts priority searches—OS1 for registered land, K15 for unregistered land). E - Ensure funds are ready (buyer’s solicitor ensures mortgage funds or balance of payment are in place).
45
Phase (4) - Completion
T - transfer of funds to seller’s solicitor R - Receipt of funds confirmed A - Agent - seller’s solicitor will act as agent of buyer’s solicitor for postal completion N - Notify buyer of completion S - Settlement of charges - seller will make sure mortgage is discharged F - Final docs - transfer deed dated and signed and sent (along with all other title documents) to buyer’s solicitor, mortgage deed dated E - exchange of keys once vacant possession confirmed
46
Phase 5 (post-completion)
D - discharge seller’s mortgage via DS01 R - register transfer and buyer’s title AP1 or FR1 I - inform third parties (e.g. lessee, company connected with property) P - pay SDLT S - forward registered title, SDLT5 cert and others to buyer and lender
47
Difference between covenant and condition in landlord’s ability to forfeit a lease
Covenant - must be expressly set out in lease with any provision of re-entry Condition - goes to root of contract, gives right to forfeit even if silent on issue
48
Options if a home rights notice has been registered on Charges Register
Firstly, MUST BE REGISTERED to take free of the home rights 1) Get spouse to sign a written release 2) Put in a contractual condition
49
Things to advise buyer when buying old building
1) check if listed, in a conservation area, do a level 3 survey to reveal true state (more expensive, but will highlight possible repairs and maintenance) 2) ask seller to remedy issues, or renegotiate price
50
When you suspect contamination, what should you do?
1) Advise about health, damage to property affecting value, liability with current owner 2) Do an environmental search and thorough due diligence 3) Could consider environmental insurance, covenants for seller to carry out work, or renegotiate price
51
Requirements for valid easement
Digs into property: S - service and dominant tenement sufficiently proximate P - Persons owning the land must be different A - Accommodate dominant tenement (not personal benefit) D - Definable subject matter (not too wide or too vague) E - Exclusive possession (cannot grant exclusive possession / unrestricted use)
52
Definition of easement
A right benefitting a piece of land that is enjoyed over another piece of land owned by someone else
53
What are the different ways of forming legal easements?
Express - by deed, since LPA 2002 must be registered (if not, equitable only) Prescription - long use (20 years of continuous use, not by force, secrecy or permission) Implied on sale: Wheeldon v Burrows and s.62
54
Wheeldon v Burrows versus s.62
Both ways of implying an easement on sale of a piece of land. S.62 doesn’t require continuous and apparent / necessary for enjoyment of land (use where X owns both, occupies 1) Wheeldon requires unity of occupation, s.62 requires diversity (use where X owns both, occupies both)
55
What must have been done for equitable easements to be binding?
Must be registered (unilateral notice on servient title) or land charges registry (where unregistered)
56
What are the exceptions to the rule that buyers will only be bound by registration of easement
1) Easements either implied or presumed if (i) knew about it, (ii) existence obvious on inspection, or 2) exercised within the last year 2) Express legal easement over unregistered land
57
What to advise buyer client with respect to investigating easements?
1) Need to get easements registered (notice - registered land, land charge - unregistered) 2) Check scope of easement benefits property for intended purpose 3) Check for maintenance
58
Risk of easement to buyer of servient land and what to do
Obliged to comply, can restrict use of land and need for maintenance. 1) Express release in a deed of release / variation 2) Indemnity insurance - insure against risk of dominant land’s owner seeking to enforce easement
59
Risks to buyer of dominant land easements and what to do
Failure to register results in unenforceability, so check for notice or charge Put in contractual condition Injunction - apply to court for injunction
60
Difference between positive and restrictive covenants
Positive covenants - promise to do something or to spend money Restrictive - prohibit or limit ability to do something
61
What are landlords´grounds for objecting to renewal of lease
F - Failure to pay rent D R - Repair D O - other reason or substantial breaches D A - alternative accommodation suitable N —————————————————compensation W - let property as a whole (when rent is better) D D - demolish, reconstruct, carry out construction N O - occupy premises N
62
Statute for security of tenure
Landlord and Tenant Act 1954
63
Criteria for security of tenure to apply
(1) there must be a tenancy that is not excluded by statute (2) tenant must be in occupation, (3) the tenant carries on a business in the property (section 23 states that the term “business” includes a trade, profession or employment and includes any activity carried on by a body of persons, whether corporate or unincorporate)
64
What does the court consider when exercising its discretion to oppose a new lease under security of tenure
1) The extent of tenant's breach 2) Denied on balance whether to uphold landlord's objection
65
Search needed on every REGISTERED property
OC1 for official copies of register
66
Search needed on every UNREGISTERED
Index Map Search - shows full extent of property + which parts are registered K15 land charges search - made against seller of each of previous owners to reveal encumbrances over land + confirmation not bankrupt
67
Local Land Charges Search
Needed on all - reveal charges / restrictions on use
68
CON29 Local Authority Enquiries
Use on all For planning permissions / future development
69
CON29DW Drainage and Water Enquiries
Use on all
70
Searches needed on all properties
CON29 Local Authority Enquiries CON29DW Drainage and Water Enquiries Local Land Charges Search
71
Planning permission - automatically permitted
Minor in nature e.g. erection of fences below 2 meters, exterior painting, small extensions, re-roofing
72
Building consent - where needed
Erection or extension of buildings Installing / replacing doors Windows Heating Air-con
73
Building reg consent - not needed
Repairs, replacements, maintenance work
74
Apply to whom - planning v building reg
Planning: to local planning authority Building reg: local building control authority
75
Risks to client with replacing one property with another
May need to pay SDLT at the higher rate (additional 3%) as two are owned at same time
76
Options to reduce risk of replacing residence
(1) Synchronise (2) Arrange another source of funding (bridge loan) (3) Sell first
77
Risks of bridge loan + other options
High interest rate, uncertain period for repayment Deposit guarantee Negotiate reduced deposit
78
Vacant possession - implied v express
Must be able to physically and legally occupy it + give them undisturbed enjoyment Better to include a clause in the contract for vacant possession as this will prevail over OPEN CONTRACT RULE
79
Remedies for no vacant possession
1) Specific performance + damages 2) Rescind contract, recover deposit, claim damages 3) Choose to complete and claim damages
80
Statute for planning authority
Town and Country Planning Act 1990
81
Statute for automatically permitted developments
Town and Country Planning (General Permitted Development) Order 1995
82
Effect of notice to complete
1) Time of essence 2) 10 days to complete 3) Notice can't be withdrawn unilaterally 4) Buyer must immediately pay deposit
82
Consequences of not complying with notice - buyer
Seller's rescinds (or has option to), forfeit / keeps deposit with interest and claims damages
82
What to advise lender on completion
1) Official search which freezes register in favour of lender 2) Register security at Land Registry 3) Apply restriction on register so that proprietor may not dispose of without the lender's consent 4) Companies House if relevant
83
Consequences of not complying with notice - seller
Rescind (or option to), refund deposit with accrued interest
83
Solution for breach discovered after completion
Breach of contract (conditions - repudiate contract, claim damages / warranty - claim damages but can't end contract) Claim for misrep
84
Building regs - time for enforcement and sentence
10 years + max 2 year imprisonment
85
Options for buyer where previous planning authority breaches
1) Remedy breach 2) Retrospective planning permission and put special condition in contract 3) insurance for lack of permission or building consent (special condition) 4) Ask for an indemnity
86
Exceptions to rule that actual occupation is an overriding interest regardless of whether or not registered
1) if asked, person with interest fails to disclose interest and should reasonably have been expected to do so 2) where persons occupation was not obvious on a reasonably careful inspection,
87
How to get around an occupation interest
1) get occupier to join contract 2) formally release rights 3) overreaching
88
Is a home right an overriding interest?
No but constitutes a charge if protected by registration on charges register or by class f land charge
89
Options for dealing with restriction in register
1) check if proposed transaction will be caught by restriction 2) make contract conditional on removing restriction 3) application for order to disapply or modify restriction
90
Is a lease binding on a freeholder buyer?
Yes if up to 7 years, if over 7 year it must be registered If not registered, they become equitable leases so disposition for valuable consideration takes free
91
Lease in a freehold buyer - what to do
Ask seller for assurance that tenant will waive interest
92
What is an AGA
Because old tenants are no longer on the hook for breaches of the lease after assignment, the outgoing tenant will guarantee the obligations of the new tenant by signing an AGA
93
Assignment of lease - implied qualification
Basically where it says cannot assign or underlet without licence or consent, there’s an implied qualification for consent not to be unreasonably withheld
94
Where assignment requested and there’s a qualified covenant what happens
Landlord must, within a reasonable time, give consent, except if it is reasonable to refuse; surge tenant with written notice of decision; pass on application to anyone else whose consent is required
95
Landlord response to written request to assign
1) must respond within reasonable time (burden of proof on landlord to prove this) 2) must state the reasonable grounds and burden is on landlord to show its reasonable 3) can give conditional consent (requiring AGA if reasonable or expressed in the lease), or payment but only if lease allows for it
96
Where consent for assignment is not forthcoming
Act without consent but risk being in breach and liability for damages and forfeiture Court declaration specifying consent has been unreasonably withheld Court claim for damages and injunction

SQE 2 (11 decks)

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