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FLK2 > Property Law > Flashcards

Property Law Flashcards

1
Q

Creation and Registration of a Legal Mortgage

A

A legal mortgage must be:
- Created by deed
- Registered in the charges register for registered properties.

This allows a buyer’s solicitor to see any existing mortgage on the property from the charges register.

There must also be a restriction in the proprietorship register that the property must not be sold without the consent of the lender.

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2
Q

Implications of Registering in the Charges Register

A

Once registered, a buyer takes the property subject to the mortgage.
Mortgage lenders generally require repayment of the mortgage before the property is transferred to avoid having to deal with third parties.

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3
Q

What type of Covenants are on the Charges Register

A

If covenants appear on the charges register, the property carries the burden of these covenants.
Restrictive, positive, or unknown covenants may be present.
Remember - any rights benefiting the property are listed on the property register.

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4
Q

What are the different types of Covenants

A

Restrictive Covenants: Assume they are binding. These covenants limit actions, e.g., “use property only as a residential dwelling.”

Positive Covenants: Require action or upkeep (e.g., “maintain a fence”). Only binding if there is an unbroken chain of indemnity.

Unknown Covenants: Could be restrictive or positive. Assume some unknown covenants may be restrictive.

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5
Q

How do you carry out a land search against unregistered land?

A

Essential for unregistered land, typically done via Form K15 or online.
Search Process: By owner’s name and period of ownership.
Search Period: If unknown, start from 1926.

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6
Q

When do restrictive covenants bind unregistered land?

A

When they are registered in the Land Charges register as a d(ii) land charge.

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7
Q

When do positive covenants bind unregistered land?

A

Positive covenants require a chain of indemnity covenants but are not registrable.

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8
Q

What protection should the buyer’s solicitor seek from unknown covenants over registered land?

A

Buyer’s solicitor may request indemnity insurance.

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9
Q

How are legal easements over unregistered land identified?

A

Legal easements are not registrable and should be evident in the epitome or by inspection.

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10
Q

How do equitable easements bind unregistered land?

A

Equitable easements are registrable as d (iii) land charges.

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11
Q

How do estate contracts bind unregistered land?

A

Estate contracts are provided by c(iv) land charges, useful if there’s a gap between exchange and completion.

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12
Q

When is planning permission excluded?

A

For building works that only affect the interior of the building.

For building works that do not materially affect the external appearance of the building.

For changes of use that are within the same use class (s3(1), The Town and Country Planning (Use Classes) Order 1987

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13
Q

What is the general permitted development order?

A

Allows certain developments without planning permission.

Development must meet specific criteria, like decking height limits in residential gardens.

Restrictions: Local authorities can restrict GPDO with an Article 4 Direction, requiring planning permission.

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14
Q

What is an article 4 direction?

A

Article 4 direction prevents any building works being carried out upon the property without planning permission having been granted.

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15
Q

What are the conditions for General Permitted Development?

A

The conditions for GDPO need not be explicitly remembered - they are laid out in the formal act and may be amended by an Article 4 direction.

Where there is uncertainty as to how the development falls within GDPO then a certificate of lawfulness can be obtained.

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16
Q

What are the variations in gradings for listed buildings?

A

Grade I: Exceptional interest
Grade II*: Important with more than special interest
Grade II: Special interest

Consent Needed: Listed building consent is required for alterations, even if planning permission is not.

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17
Q

How does GDPO affect conservation areas?

A

The GPDO will be restricted, so changes to external appearance may require planning
permission

In England, planning permission is needed to demolish an unlisted building within a
conservation area

In Wales, conservation area consent is needed to demolish an unlisted building within a
conservation area (conservation area consent in England was abolished in 2013)

Consent is needed to cut back or cut down trees

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18
Q

What is the difference between building regulations and planning permission ?

A

Planning permission assesses whether the proposed development is appropriate for the location and building regulations focus on the safety and efficiency of the building, including fire safety, drainage etc.

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19
Q

How is planning permission enforced?

A

Enforcement Notice - Order to restore land or secure compliance with any conditions or limitations of planning permission. Continuing obligation with criminal sanctions.

(The local authority will give 28 days notice that the land must be restored and after expiry of the 28 days, the landowner may be fined or the local authority may enter the premises to carry out the work.)

Stop Notice - following an enforcement notice a stop notice may be served to stop the activities in breach.

Planning Contravention Notice - served to flush out information about potential breaches before enforcement notice is served.

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20
Q

What are the time limits for enforcement of planning legislation?

A

For building works > within 4 years of the works being completed

For material change of use > within 10 years of change of use

Unless change of use is to a dwelling > within 4 years

For breach of condition > within 10 years from the date of breach

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21
Q

How are building regulations enforced?

A

Prosecution - local authority has six months after discovering the breach to prosecute the responsible person.

Unlimited fines may be imposed.
Prosecution may take place up to two years after completion of the building work.

Enforcement Notice - Local authority has 1 year after completion of the building work to serve enforcement notice.

Landowner has 28 days to alter or remove the work (at their own expense).
Injunction - local authority can apply to court for an injunction without any time limit.

22
Q

What is the difference between an environmental desktop search / a phase 1 Report and a Phase 2 report?

A

Environmental Desktop Search provides an initial, non-invasive review of potential risks.

Phase 1 Report assesses potential risks in greater detail with a site visit and document review, but does not involve testing.

Phase 2 Report involves actual testing on-site to measure the extent of contamination and determine whether remediation is needed.

23
Q

When are building regulations required?

A

Where there is the erection or extension of a building

The installation or extension of a service or fitting (e.g. windows and boilers)

Work that changes the material use of the whole building.

24
Q

What to do where planning permission / building regulation approval is missing

A

Withdraw from transaction

Invite seller to regularise the mayor before completion

Obtain indemnity insurance for breaches of planning or building regulations

Retrospective planning permission may be available for development

Regularisation certificates should be obtained for works that did not have building regulations approval but otherwise comply.

25
Q

What is the difference in function and features between a report on title and certificate of title?

A

Certificate of Title = a document in which a solicitor certifies that the title to the property is satisfactory for lending purposes.
- For residential mortgage - this is simply one page which is signed.
- For commercial lending - this follows a prescribed form which must give a disclosure statement.

Report on Title = will identify the material facts in relation to the property, the issues, the implications and any solutions. It is essentially the findings of the solicitor’s investigations.

26
Q

What is the difference between a planning enforcement notice and a planning contravention notice?

A

A Planning Contravention Notice is investigatory, helping authorities confirm the details and parties involved in a suspected breach.

A Planning Enforcement Notice is an enforcement measure requiring specific corrective actions to address an established breach.

27
Q

What does an index map search do?

A

An Index Map Search is an HM Land Registry search that checks if a piece of land or property is registered. It confirms registration status, identifies boundaries, and shows nearby registered properties.

28
Q

When will chancel repair be an overriding interest?

A

This is an overriding interest on unregistered land.

S 2 LRA 2002 introduced the rule that chancel repair liability would no longer be an overriding interest on properties with registered titles, unless the liability had been formally registered with the Land Registry before 12 October 2013.

29
Q

Where would you find information about a public footpath on a property?

A

The Local Authority Search Result (Standard Enquiries of the Local Authority - Form CON29)

30
Q

What does the Local Land Charges Search Result reveal?

A

Records charges such as general and specific financial charges, planning charges, listed buildings charges, light obstruction notices.

31
Q

What does the Property Register of the Official Copy reveal?

A

Rights benefiting the property such as private rights of way, not public footpaths.

32
Q

What does the Search of the index Map reveal?

A

Whether the area searched is registered or unregistered land, it does not detail any specific rights of way and indeed the Land Registry does not record public footpaths on its registers.

33
Q

What is the time limit for enforcement of planning permission regulations after a material change of use?

A

Enforcement must be within 10 YEARS

34
Q

What is the time limit for enforcement of planning permission regulations after a breach of a planning permission condition?

A

Enforcement must be within 10 YEARS

35
Q

What is the time limit for enforcement of planning permission regulations after a change of use to a dwelling property.

A

Enforcement must be within 4 YEARS OF THE CHANGE OF USE.

36
Q

What is the time limit for enforcement of planning permission regulations after building works?

A

Within 4 YEARS of the works being completed.

37
Q

Which latent encumbrances does the seller’s solicitor not need to disclose according to standard conditions of sale in residential transactions?

A

The buyer purchases the property subject to the following incumbrances:
(a) Those specified in the contract.
(b) Those discoverable through inspection before the contract date.
(c) Those the seller does not and could not reasonably know.
(d) Incumbrances (except mortgages) the buyer is already aware of.
(e) Entries made in public registers (e.g., Land Registry, Land Charges, Companies House) before the contract date.
(f) Public requirements (e.g., zoning laws, planning permissions).

38
Q

What is the difference between a qualified and a fully qualified covenant?

A

Qualified = landlords consent needed

Fully qualified = landlord’s consent cannot be unreasonably withheld

39
Q

What is the VAT treatment of newly built commercial property which is under 3 years old?

A

Newly commercial property (under 3 years old) is standard rated.

40
Q

What is the VAT treatment of older commercial property (over 3 years old) where the owner has opted to tax?

A

Older commercial property will be standard rated if owner has opted to tax.

41
Q

What is the VAT treatment of newly constructed residential property?

A

Newly Constructed Residential Property is zero rated - meaning no VAT is charged to the buyer and the seller can recover input tax.

42
Q

What is the VAT treatment of older commercial property which is over 3 years old where the owner has not oped to tax?

A

Older Commercial Property over 3 years old is exempt from VAT unless the owner has opted to tax.

43
Q

What is the VAT treatment of residential property?

A

Residential Property is exempt (except newly constructed residential property).

44
Q

What search is used for a Registered Land Search with priority at the Land Registry against the title number. This updates the official copies that were initially provided and identifies any changes that have been made. It also confers a priority period in which the buyer should register the transfer (30 working days)

A

OS1 Search (OS2 if sale of part)

45
Q

What search should be used if the buyer is an individual and the buyer’s solicitor is acting for the buyer and the lender and it must carry out a bankruptcy search against the buyer to protect the lender. It confers a 15 working day priority period.

A

K16 search

46
Q

What type of search is being described below: If the buyer is a company, the lender will want a search carried out against the buyer to check that there is no pending insolvency or crystallisation of a floating charge. If the seller is a company, then the buyer’s solicitor should carry out this search. No priority period is given.

A

Companies House Search

47
Q

What type of search is being described here:
Land Charges search over unregistered land. This identifies any encumbrances or other adverse matters registered against the owner / seller of the unregistered land. It confers a priority period of 15 working days.

A

K15 search

48
Q

What is the time limit for a landlord’s hostile section 25 notice to bring a tenancy to an end ?

A

The date of termination must be on or after the date on which the contractural term ends.

Notice must be served more than 6 months and less than 12 months before the date of termination.

(The same rules apply to friendly s 25 notices where the landlord wishes to offer a renewal of the lease).

49
Q

What is the number of months that a tenant must have on its headlease to be the competent landlord for the underlease?

A

The competent landlord must have at least 14 months on their headlease.

50
Q
A

FLK2 (3 decks)

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