Property - Flashcards Full Deck
What is an easement?
A right allowing one party to use a portion of another party’s land for a specific purpose.
What does “use as of right” mean?
It means using the benefit without seeking permission or making any payments.
How can an easement be created by prescription?
A party must show unchallenged use for over 20 years and that the use was ‘as of right.’
What is common law prescription?
If an easement has been used ‘from time immemorial,’ there is a rebuttable presumption of immemorial use after 20 years of unchallenged use.
What is a lost modern grant?
The court will treat an easement as if there was once a grant if the claimant can show actual enjoyment for 20 years.
What does the Prescription Act 1832 provide?
It provides a statutory means for acquiring an easement based on either 20 or 40 years of use, with specific provisions.
What must happen for a legal easement over registered land?
It must be registered with the HM Land Registry (HMLR) to take effect.
How is the benefit of an easement recorded?
It appears as a notice on the property register of the dominant tenement.
Where is the burden of the easement recorded?
It appears as a notice on the charges register of the servient tenement.
Why must easements created by prescription be registered?
They must be registered because they are considered a legal interest.
What should a solicitor send to the client at the beginning?
A client care letter outlining services and costs.
What identification must a solicitor obtain from the client?
Identification documentation and carry out due diligence.
What should the buyer be advised to do regarding property inspection?
To have a surveyor conduct a physical inspection of the property.
What tax advice should a seller receive?
Advice regarding capital gains tax.
What must the seller provide to the buyer?
A valid energy performance certificate.
What is the seller’s solicitor’s role in title investigation?
To investigate the seller’s title and resolve any defects in the title.
What must the seller’s solicitor confirm with the seller?
The land being sold through a title map.
What figure should the seller’s solicitor request from the lender?
An indicative redemption figure on the mortgage.
What does the contract package include?
A draft contract, property information form, fitting and contents form, copy of the seller’s title, title map, guarantees or planning permissions, and any latent defects or burdens.
What are the three parts of a residential contract?
(i) Particulars of Sale, (ii) Standard Conditions of Sale, (iii) Special Conditions of Sale.
What does the deposit usually amount to upon exchange?
10% of the purchase price.
What happens to risk and insurance at exchange?
Risk passes to the buyer on exchange; they should insure the property.
What are the consequences if the property is damaged after exchange?
The buyer is still obliged to proceed with the transaction.
What should the buyer’s solicitor do upon receipt of the contract package?
Investigate title and resolve any issues through pre-contract enquiries.
How can defects in title be resolved?
Through a deed of variation or deed of rectification; if not possible, indemnity insurance may be purchased.
What is the primary aim of the buyer’s solicitor when investigating a registered title?
To identify technical points, encumbrances, and the class of the seller’s title.
What are the three registers a solicitor examines at the Land Registry?
- Property Register (address, type of estate, rights benefitting the land)
- Proprietorship Register (class of title, who holds legal title)
- Charges Register (records encumbrances and restrictions like mortgages).
What does the Proprietorship Register indicate?
The class of title (absolute, possessory) and who holds legal title (maximum of 4 trustees must hold legal title as joint tenants).
What is noted in the Charges Register?
Encumbrances and restrictions, such as mortgages and restrictive covenants. Not all registered titles will have a Charges Register, but most will.
What is the buyer’s solicitor looking for when investigating an unregistered title?
Whether there has been a triggering event (e.g., conveyance or grant of first legal mortgage) requiring registration and ensuring the seller registers the land before sale.
What does the epitome of title contain?
A chronological list of the documents of title with copies of the documents attached.
What defines a good root of title?
It must go back at least 15 years, cover the whole legal and equitable interest in the property, contain an adequate description, and cast no doubt on the title.
What is the purpose of the Local Search?
To identify local land charges, planning restrictions, tree preservation orders, and who is responsible for the upkeep of the road. It has two parts: (a) Search of Local Land Charges Register and (b) optional enquiries.
What does the optional Commons Registration Search reveal?
Whether the property abuts or is adjacent to a village green or common land, which is land designated for public use. Important for buyers due to restrictions on usage.
What is the aim of the Water and Drainage Search?
To establish whether the property is connected to the public water supply.
Why is an Environmental Search important?
To determine if the land is contaminated, which may impose cleanup obligations on the buyer.
What is the Search Index Map used for?
To reveal whether a title is fully or partially registered, particularly if the title is unregistered.
What does a Bankruptcy Search check?
It checks the buyer’s full name to ensure they will be able to obtain a mortgage.
What is the purpose of a Coal Mining Search?
To identify whether coal mining has taken place locally or formerly, which may affect the property.
When is a Company Search necessary?
If the seller is a company, to ensure the buyer is aware of any company-related issues.
Why is it important for the buyer to re-visit the property?
To look for any problems such as evidence of rights of way, any occupiers, and to check the physical condition of the property. If commercial, the buyer’s solicitor will send the seller a copy of the Commercial Property Standard Enquiries.
What is the purpose of planning law?
To restrict the development of land and ensure controlled building to prevent uncontrolled construction activities.
When is planning permission generally required?
For structural changes, mining operations, and any material change of use.
What is a Listed Building?
A building that requires planning permission for any kind of work, due to its historical or architectural significance.
What constitutes permitted development?
Minor internal works or specific projects that do not require planning permission because they are deemed to be automatically permitted under certain regulations.
What are the two types of express planning permission?
(i) Outline permission – for the general principles of development, and (ii) Detailed permission – for specific development proposals.
What is deemed planning permission?
Planning permission automatically granted under the 1990 Act for certain developments, such as small home extensions, unless the local authority disapplies these rights.
What happens if planning permission lapses?
Development must commence within 3 years of the date of permission; otherwise, the permission becomes invalid.
What actions can a local authority take for non-compliance with planning laws?
They can take enforcement action against the property owner, requiring compliance, which may include requiring demolition or reconstruction. Enforcement notices must be served within specific timeframes based on the type of breach.
What is the enforcement notice timeframe for unauthorized building works?
Must be served within 4 years of the breach.
What is the enforcement notice timeframe for material change of use?
Must be served within 10 years of the breach.
What can a local authority do to prevent unauthorized work?
They can apply for an injunction or issue a ‘stop notice’ to prevent ongoing work.
What is the enforcement period for Listed Buildings?
There is no enforcement cut-off period; breaches can be enforced at any time.
What are Building Regulations?
Separate from planning permission, these regulations ensure that buildings meet specific safety and construction standards. Compliance is required for all development work, even for minor work that may not require planning permission.
What is a Building Regulations completion certificate?
Issued by a building control officer upon satisfactory inspection of completed work, confirming compliance with building regulations.
What are use classes?
Classifications for commercial buildings that dictate what type of activities can occur within them; planning permission is typically required to change from one use class to another, but not for changes within the same class.
What are the two ways to fund a property purchase?
(1) Cash buyer: involves Anti-Money Laundering (AML) checks and establishing the source of funds and wealth. (2) Mortgage: involves borrowing from an institutional lender who takes a mortgage over the property as security for the loan.
What is required for a cash buyer in the conveyancing process?
AML checks and verification of the source of funds and wealth.
What happens when a mortgage is taken out by the buyer?
The lender takes a charge over the property, which appears on the Charges Register.
What is the typical deposit amount when purchasing a property?
Most buyers typically put down a 10% deposit.
Who usually acts for the lender in a mortgage transaction?
The buyer’s solicitor (BS) often also acts for the lender, which may create a conflict of interest. The BS can only provide generic advice regarding the mortgage.
Why is independent financial advice important for a mortgage?
A mortgage is a financial product, and clients need to understand their options and obligations before proceeding.
What are the four types of mortgages?
(i) Repayment Mortgage, (ii) Interest Only, (iii) Endowment, (iv) Sharia-compliant.
What is a Repayment Mortgage?
The borrower makes monthly repayments that include both capital and interest, ensuring the entire loan is paid off by the end of the term.
What is an Interest Only Mortgage?
The borrower only pays the interest on the loan during the term, with the capital due at the end, requiring alternative arrangements to pay off the principal.
What is an Endowment Mortgage?
A mortgage linked to a life insurance policy intended to pay off the mortgage balance when the policy matures, but has fallen out of favor due to insufficient payouts.
What is a Sharia-compliant mortgage?
A financing arrangement that adheres to Islamic law principles.
How must a mortgage be created?
A mortgage must be created by deed.
What is a Certificate of Title?
A document submitted to the lender confirming that the title is good and marketable, typically submitted 5-7 days before funds are required to release the mortgage advance.
What is the role of an occupier’s consent form in a mortgage transaction?
It confirms that non-owning occupiers (e.g., adult children living with the buyer) will vacate the property if the lender needs to repossess. They should seek independent legal advice.
What must be done post-completion regarding the mortgage?
The mortgage must be registered in the Charges Register within 30 days for registered titles and within 2 months for unregistered titles. If the buyer is a company, registration must also occur at Companies House within 21 days.
What happens if the registration deadline for a mortgage is missed?
If the registration deadline is missed, a court order must be obtained to register the charge.
What happens during the exchange of contracts?
The transaction becomes legally binding; neither party can back out without penalty, and the buyer risks losing their deposit if they fail to exchange.
When does the risk pass to the buyer?
The risk passes to the buyer upon exchange of contracts.
Can exchange and completion occur on the same day?
Yes, exchange and completion can take place on the same day, but this is often not the case.
