Property Intro Chapter

Question 1

There are many matters the buyer’s solicitor must consider,including: (4 things)

Answer 1

 the seller’s right to sell the property;
 whether the property benefits from any rights (e.g. a right of way over
someone else’s land to access the property);
 whether the property is subject to any third party rights (e.g. a third party’s
right of way over the property itself or a restrictive covenant); and
 whether the buyer will be able to use the property for its intended
purpose(s).

Question 2

In order to advise your client, you need to: (4 things)

Answer 2

 have a keen eye for detail to identify the relevant issues;
 understand the law behind such issues;
 provide clear, well-structured, practical and commercial advice to the
client; and
 offer a range of options to your client and be prepared to recommend the
best course of action.

Question 3

S.2(1) Law of Property (Miscellaneous) Provisions Act 1989

Answer 3

2 Contracts for sale etc. of land to be made by signed writing.
(1)A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.

Question 4

Elton Hall Agricultural College’s (the seller’s) aims

Answer 4

 To realise funds from the sale and repay any mortgage on the property.
 To effect a legal transfer of the property to Ritchisons Properties
Limited (referred to in this lecture as ‘RPL’).
 To prepare a contract which reflects the terms agreed between the
parties.
 To ensure the property transaction is tied in with any related transaction,
and meets its business requirements (e.g. in terms of financing).

Question 5

RPL’s (the buyer’s) aims

Answer 5

 To ensure that Elton Hall Agricultural College Limited has the right to
sell the property.
 To ensure that the contract reflects the terms agreed between the
parties.
 To ensure that the physical condition of the land and any buildings is
adequate for the RPL’s needs.
 To identify any rights that the property enjoys.
 To identify any third party rights which are a burden on the property.
 To ensure there are sufficient funds to finance the purchase (usually by
way of capital raised from the sale of another property or other assets, or
by way of loan finance).
 To ensure the property transaction is tied in with any related transaction,
and meets its business requirements (e.g. in terms of financing)

Question 6

Transfer of interest has to be by what?

Answer 6

Deed, according to s.52 Law of Property Act 1925

Question 7

How was the sale of unregistered land transferred by?

Answer 7

Deed of conveyance.
A well-drafted conveyance will have:
a. named and defined the Vendor / Seller;
b. named and defined the Purchaser / Buyer;
c. set out the tenure of the property (i.e. freehold / leasehold);
d. set out the price of the property; and
e. clearly described the property being sold.

Question 8

What is a positive covenant involve and what is the effect (inc indemnity covenants)

Answer 8

Positive covenants require something to be done. Under
English law they cannot bind the land (promise dosn’t mass with the land)
Whoever owns the land with the benefit cannot sue the person who has breached the positive covenant – they have to sue the original covenantor - ongoing liability.

So when the original covenator sells it will ask the buyer to enter into a covenant with them agreeing to comply with the terms of the positive covenant and, if it fails to do so, to indemnify the original covenator in case they get sued by the person(s) with the benefit of the covenant. In practice, this is knows as an
“indemnity covenant”.

Question 9

What is a restrictive covenant?

Case

Answer 9

A restrictive covenant requires the covenantor to refrain from doing something on the land. Provided they have been properly registered (and are genuine
restrictive covenants as per Tulk v Moxhay) restrictive covenants will bind the land.
In unregistered land, burdens on the land are registered at the Central Land Charges Registry. If they have been properly registered at the Central Land Charges Registry when the unregistered
title gets registered, the covenants will then be registered by the Land Registry on the Charges Register of the title.

The owner who signed the conveyance containing the covenant will continue to be personally bound by the restrictive covenants but it is far simpler for
the person who owns the land which benefits from the restrictive covenant to pursue the current occupier of the land (who takes on both the burden of the
covenant and is liable for any ongoing breaches).

Question 10

What s.62 LPA 1925 or the rule in Wheeldon v

Burrows refer to

Answer 10

a property is sold with the benefit of all rights, ways, easements,
etc.
The rule in Wheeldon v Burrows, a seller who sells part of their property might inadvertently find that rights have been created over the part of the land being retained. It is, however, possible to exclude the effect of s.62 LPA 1925 and the rule in Wheeldon v Burrows

Question 11

Order of Play: Seller

Answer 11

1. Take Instructions
2. Prepare Draft Contract
3. Deduce Title
4. Answer Pre-Contract Enquiries
5. Answer Queries on Title
6. Exchange Contracts
7. Approve Purchase Deed
8. Reply to Completion information
9. Prepare for Completion
10. Completion
11. Post-Completion Matters

Question 12

Order of Play: Buyer

Answer 12

1. Take Instructions
2. Pre-Contract Searches
3. Pre-contract Enquiries
4. Investigate and Raise Queries on Title
5. Report on Title
6. Approve Draft Contract
7. Exchange Contracts
8. Prepare Purchase Deed
9. Request Completion information
10. Pre-Completion Searches
11. Prepare for Completion
12. Completion
13. Post-Completion Matters