SGS 1 Titile investigation Flashcards
What need to be establish that the terms of the right of way are adequate for its needs?
That the buyer can access the property:
- at the times it wants
- by all means of access it require (e.g by motor vehicle and on foot)
- physically adequate in terms of its size, location and construction.
What is the solution if the right of way adversely affect your client’s proposed use of the property?
You will need to negotiate a deed of variation with the owner of the land burdened by the right of way.
What should you always do if there is a right of way?
You should always ask the seller about its maintenance obligations even if the right of way itself is silent on the subject.
This is because the law makes it clear that if someone is taking the benefit of a right, they have the obligation to pay towards it upkeep.
What’s the risk of the burdened land not being registered?
When the burdened land later gets sold and the new owner may not be bound by the burden of the easement.
How can you remedy a continuing past breach of restrictive covenant?
Insist that the seller buys restrictive covenant insurance at its expense (and put a special condition in the contract binding the seller to do this before completion, insuring RPL and any future owners of the land against the possibility of the PWB bringing an action in the future.
What implications can you draw out regarding to the date of the covenant?
The older the covenant and the older the breach, the more likely it is that restrictive covenant insurance will be available at a reasonable cost.
What should your next course of action be if insurance is not available because insurers consider that the breach is too recent?
You should insist that the seller obtains retrospective consent from the PWB and put a special condition in the contract binding the seller to do this before completion.
However, the PWB may charge for this consent and there is always the possibility the PWB will refuse consent.
What is the final option to remedy a past breach of restrictive covenant?
An application to the Upper Tribunal (Lands Chamber) to have the restrictive covenant removed or varied because it is obsolete.
This is the final option as it is usually impractical in the context of a property transaction: it is a time-consuming and expensive option, with no guarantee of success
How should you remedy a future breach of restrictive covenant?
You should buy restrictive covenant insurance insuring itself against the possibility of the PWB brining an action in the future.
What should you do when there is a past breach and a future breach of different covenants created in the same conveyance?
You should advise the client to take out a single policy covering both the past and future breaches and come to an agreement with the seller as to how to split the premium. This would keep the remedies the same for the past and future breaches and is the most likely option
What should you be caution with to avoid the risk of breaching s.19(1) FSMA?
You should tell clients to contact an independent financial adviser or an insurance broker for the necessary advice/ for the relevant arrangement to be put in place.
You need to raise s.19(1) FSMA as an issue and the need to have the relevant authorisation to be able to do this kind of work, where relevant e.g. when discussing insurance policies
How do you remove the mortgage on the property from the Charges Register?
- The buyer’s solicitor could obtain a Form DS1 from the seller’s solicitors immediately after completion and submitting it to the Land Registry along with the application to register the buyer as the new owner
- By the lender bank sending an e-DS1 direct to the Land Registry when it receives sufficient money from the seller to pay off the loan on completion.
