Property: Due Diligence Flashcards
Who deduces title?
sellers solicitor
Who drafts the contract and who drafts the transfer deed
Contract: sellers solicitor
Transfer deed: buyer
Who investigates title?
buyers solicitor
Who does the pre contract searches
buyers solicitor
Who drafts the transfer/mortgage deed?
buyers solicitor
Who does the pre completion searches
buyers solicitor
What does the following in the proprietorship register indicate: “RESTRICTION: 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”
That the equitable interest is held as tenants in common
Can you act for buyer and seller?
Probs not-high risk of conflict (esp if difference in bargaining power/negotiation needed)
Substantially common interest doesn’t apply to a property purchase
Can you act for joint buyers
Usually acceptable as long as can comply with para 6.2
Might need to advice residential buyers separately abt how they want to hold equitable interest in prop
Can you act for borrow and lender?
Yes if para 6.2 complied with-can UNLESS conflict/significant risk of conflict
EXCEPTIONS
Substantially common interest
Both clients given informed written consent
Effective safeguards in place
Sol satisfied reasonable to act for both
When will the risk of a conflict be high when acting for borrower and lender?
Mortgage not a standard mortgage (eg. one provided in the normal course of the lender’s activities, where a significant part of the lender’s activities consists of lending and the mortgage is on standard terms) of prop to be used as borrowers priv residence
Mortgage is standard but you don’t use the approved certificate of title
Can you act for joint borrowers?
Yes if comply with 6.2 and consider Etridge guidelines
What is a contract race?
Where pre-contract package sent to multiple buyers who compete to be ready to exchange 1st
Are contract races allowed?
Yes as long as all prospective buyers know they’re engaged in race
What info must a sol give client re finances?
Best possible info abt likely overall cost of matter, at the beginning and at appropriate points throughout the transaction.
=make sure to explain SDLT/ LTT, Land Registry fees and search fees.
What are the restrictions on a solicitor providing financial advice?
Must be authorised under FSMA 2000 to carry out a regulated activity relating to a regulated mortgage contract
What is a regulated mortgage contract?
- borrower is an individual
- lender takes a first legal charge over property in UK
- at least 40% of prop intended for occupation by the borrower/ immediate family member
What is/isnt a regulated activity?
Arranging or advising on a regulated mortgage contract (ie a specific mortgage product)
NOT giving generic advice (eg. differences between types of mortgage, arranging execution of a mortgage chosen independently by the client or on the advice of an authorised person)
If doing a regulated activity and firm not authorised, how else can it be carried out?
Sol can still arrange or advise on a regulated mortgage contract by relying on the s 327 exemption for professional firms.
S237 EXEMPTION: solicitors can carry out regulated activities if they are incidental to the provision by the firm of professional services, ie services regulated by the SRA.
What may a local land charges search (LLC1) reveal?
- Planning permissions
- CPO
- Financial charges/restrictions imposed by pub authorities under statute
- Tree Preservation Orders
What may a standard enquiries (CON29) local search reveal?
- Highways/Liability for road repair
- Restrictions on development/Enforcement restrictions on planning
- Contaminated land
- Traffic restrictions, proposals
What may a local optional search (CON29O) reveal?
- Env/pollution notices
- Rights over common land
- Hedgerows
- Urban development zones
Where will you find a mines and minerals reservation
Registered: property register
Unregistered: conveyance
If there is a mines and minerals reservation, what should be done in terms of pre contract searches?
- Coal Authority search on CON29M
- Index Map search at LR on SIM, to check whether the mines and minerals are registered under a separate title
What is the point of an index map search and land charges dept?
See if registered already/pending 1st registration
3rd parties registered interest ie mining rights
What is ‘development’?
The carrying out of building, engineering, mining or other operations (B EMO)in, on, over or under land, or the making of any material change in the use of any buildings or other land
NOT Maintenance, improvement or other alteration of any building works which affect only the interior/don’t materially affect the external appearance
When is planning permission needed?
Development:
Material changes of use to/from another class NOT within same class
When will planning permission lapse?
normally 3y
local planning authority can serve completion notice stating permission will cease to have effect if it hasn’t been completed by expiration period
What matters dont need express planning permission/have automatic planning permission?
developments within the curtilage of a dwelling house (such as extensions below a certain size) and minor operations (such as painting the exterior of a building or installing a CCTV camera).
Specified changed between use classes and changes from certain sui generis uses
Types of enforcement notice for planning control
- Enforcement notice (Specify breach/steps to be taken/stopped)
- Stop notice (if enforcement notice served first)
- Breach of condition notice (says in breach and to stop)
- Injunction
When does a planning permission enforcement notice become effective?
28d after service
Time limits for planning permission enforcement in eng/Wales
ENG:
10y of alleged breach
4y for operational development (building work), changing use to single dwelling house, if works completed before 25 april 2024
WALES
10y (4y for operational development/changing use to single dwelling house)
Can the time limits for enfacement of planning permission be extended?
LPA can apply to magistrates court for panning enforcement order outside time limit
Time limit for BCA to prosecute for breach of building regs
Wales-within 2y
England-no time limit
Time limit for BCA to serve enforcement notice requiring work to be altered/removed
10y
Time limit for BCA to take out injunction if work is unsafe
none
meaning of ‘Sui generis’ use for planning permission
uses that could have adverse effects on locality
changes to and from them always require pp
