Property Law

Question 1

Restrictive Covenant

Answer 1

A promise NOT to carry out certain acts on your own land.
Note: whether a covenant is restrictive depends on its effect, not its wording.

Question 2

Positive Covenant

Answer 2

A promise TO carry out certain acts on your own land. Note: whether a covenant is positive depends on its effect, not its wording.

Question 3

Charges Register

Answer 3

Outlines any third party interests and freehold covenants that burden the land.

Question 4

Property Register

Answer 4

Describes the property and any rights that benefit the land.

Question 5

Proprietorship Register

Answer 5

Details of who owns the property and their ability to deal with the land as well as class of title, e.g. absolute, qualified, possessory or good leasehold.

Question 6

Official Copy

Answer 6

The three registers, property, proprietorship and charges.

Question 7

Personal Rights

Answer 7

A personal right in land can only be enforced by a personal action for damages if the right is breached. Use (or occupation) of the right cannot be recovered.

Question 8

Third Party Rights

Answer 8

A third party in the context of land law is a new owner of the land burdened by the right.

Question 9

The Mirror Principle

Answer 9

That the land Register should reflect all matters that the property has the benefit of, and is subject to. This has never been fully realised due to overriding interests not needing to be registered.

Question 10

The Curtain Principle

Answer 10

That the land Register records the ownership of the legal estate in the property, the legal title.

Question 11

The Insurance Principle

Answer 11

That the accuracy of the land Register is guaranteed by the state.

Question 12

Misrepresentation

Answer 12

A false statement which induces a buyer into a contract.

(Examples include overstating floorpan, concealing defects, answering queries dishonestly).

Question 13

Latent Encumbrances

Answer 13

Something which is not apparent or cannot be discovered when inspecting the property. Seller is under duty to disclose all latent encumbrances.

Question 14

Defects in Title

Answer 14

Something that challenges the seller’s ownership of the property.
(Examples include rights and burdens on the property or missing title deeds).

Question 15

What happens to ownership following the death of a legal joint tenant?

Answer 15

Title passes by survivorship to the surviving joint proprietor(s). The Land Registry will then register them as the legal owners.
However, if there is a tenancy in common restriction in the charges register, then Land Registry won’t register the change unless the owner can price they have become beneficially entitled to the whole property as well.

Question 16

What happens to ownership following the death of a beneficial joint tenant?

Answer 16

Title passes by survivorship. The surviving joint tenant takes the beneficial title to the property.
The Land Registry will register them as the sole legal owner, and there should be no restriction against the register.

Question 17

What happens to ownership following the death of a tenant in common.

Answer 17

The surviving joint proprietor/beneficial tenant in common only takes their share of the property.
The other share passes to the deceased person’s beneficiaries under their will or the intestacy rules. The building is not physically divided, but there is a distinct share in the property.
The solicitor will need to see:
1) certified copy of deceased tenant’s death certificate
2) a second trustee appointed

Question 18

Overreaching

Answer 18

The process of transferring the beneficial interests in land to the money that the buyer has paid. This means that the land is freed from beneficial interests, and the buyer does not need to worry.

Question 19

Indemnity Covenant

Answer 19

A covenant given by a buyer to seller to observe the positive covenant.

Question 20

When is the chain of an indemnity covenant broken?

Answer 20

1) If land has been transferred, and seller has neglected to obtain indemnity covenant, the chain of indemnity has been broken.
2) If there’s a breach of covenant, then original owner can still be sued, but the chain will only go as far as the last person to give an indemnity covenant.
3) If it doesn’t appear on the proprietorship register then you can assume that the chain of indemnity has been broken, and the buyer should not provide an indemnity covenant.

Question 21

Deducing Title

Answer 21

Means the process of proving ownership to a would-be buyer. In this context, title is used in its narrower sense meaning proof of ownership. (The wider sense of title is to cover all legal issues that a buyer’s solicitor investigates.)
KEY TERM

Question 22

What must be deduced by the seller’s solicitor regarding unregistered title?

Answer 22

1. Root of Title
2. Chain of title from deeds to the seller
3. Other necessary documents e.g. power of attorney

Question 23

What is the aim of basic investigation of title?

Answer 23

To:
* check that the seller has the legal right to sell the property
* ensure the property is adequate for the buyer’s intended use
* ensure that there are no title defects that could affect the value of the property or the ability to sell in future

Question 24

What is the limit for brining a prosecution in the Magistrates court for breach of building regulations?

Answer 24

MUST be done within six months of the breach being discovered with sufficient evidence. Provided that action is taken within two years of the completion of the building work that is in breach.

Question 25

What documents will need to be provided if the sale is made by a beneficiary under a will?

Answer 25

The buyers solicitor will need to see the grant of probate, or grant of administration, to prove the title of the personal representatives and the subsequent assent of the property from the personal reps to the beneficiary.