SQE2 Property Advice (Interview/Writing/C&M) Flashcards
You act for the seller.
They ask you to explain your pre-contract to exchange responsibilities.
(a) Deduce Title
* Registered Land: LR Official Copies; Title Plan (LR); Copies Referred To
* Unregistered Land: Epitome of Title
(b) Answer Enquiries Raised by Buyer
(c) Prepare Draft Contract
You act for the buyer.
They ask you to explain your pre-contract to exchange responsibilities.
(a) Investigate Title
* Registered Land: Documents provided; Title Class; Restrictions on Register; Charges Register
* Unregistered Land: Land Charges Search; Index Map Search ; Stamp Duty
(b) Pre-Contract Searches
* CON29; LLC; Drainage & Water; Desktop Environmental; Chancel Repair Liability
* Optional Searches
* Form Report on Title
(c) Pre-Contract Enquiries
* Commercial: CPSE 1
* Residential: TA6 & TA10
(d) Arrange Mortgage
* Facility letter
* Certificate of Title
* CCLS for Commercial
(e) Approve Draft Contract
* Exchange (Formula B) and pay 10% Deposit
You act for the seller.
They ask you to explain your pre-completion to completion responsibilities.
(a) Approve Deed
* Once approved, seller always executes. However, buyer executes too if they provide a panel 11 obligation.
(b) Reply to Completion Information
* Respond to TA13 or SCR
(c) Discharge Mortgage
* Redeem Mortgage
* Receive DS1 or Receipted Mortgage
(d) Completion
* Receive Monies
* Telephone Buyer
* Date Deed
* Hold Deeds to Buyer’s Order
You act for the buyer.
They ask you to explain your pre-completion to completion responsibilities.
(a) Draft Deed
* Draft TR1. Leave date blank.
* Must be sent at least 8 days before completion date.
(b) Request Completion Information
* Residential: TA13
* Commercial: CPSE SCR
(c) Pre-Completion Searches
* Registered: OS1(whole): OS2 (part)
* Unregistered: K15
(d) Completion
* Pay Monies
* Call Buyer to Collect
You act for the seller.
They ask you to explain your post-completion responsibilities.
(a) Send TR1 to Buyer
* No later than end of next working day after completion
(b) Send Discharged Mortgage to Buyer
* Send DS1 or Receipted Mortgage Certificate
You act for the buyer.
They ask you to explain your post-completion responsibilities.
(a) Pay SDLT/LTT
* SDLT: Within 14 Days
* LTT: Within 30 Days
(b) Register Mortgage if a Company
* Within 21 Days at Companies House
(c) Pre-Completion Searches
- Registered: Form AP1 + Deed; SDLT5/WLA Certificate; DS1 - (Within 30 days of OS1/OS2)
- Unregistered: Form FR1 + Certified Copies of Epitome; Deeds Referred to in Epitome; Land Charges Search (Within 2 Months).
Your client asks what deed will be used in the transfer. Explain the various deeds and when they will be used.
- TR1 - Selling Whole of Title
- TP1 -Selling Part of Title
- TR5 - Portfolio of Registered Titles
Your client wants to know what parties must sign the deed of transfer.
(a) Seller - Always Signs
(b) Buyer - Only if they….
- Provided Panel 11 Obligation
- Are holding the property as tenants in common
Your client is the buyer in a transaction.
They are purchasing registered land.
What pre-completion searches should they consider?
- OS1 - Registered Land Whole Title (30 working days priority); or
- OS2 - Registered Land Part Title (30 working days priority); or
- OS3 - Leases for 7 years or Less (No priority period)
If they are a company, and you represent the lender….
- K16 Bankruptcy Search on behalf of Mortgage Lender
Your client is the buyer in a transaction.
They are purchasing unregistered land.
What pre-completion searches should they consider?
K15 - Confers 15 Working Days priority. Registration must take place within 2 Months of Completion
You represent the seller in a transaction. They want advice on the various ways a morgage should be discharged.
- DS1 - Redeeming Whole Registered Title
- DS3- Redeeming Part of Registered Title (e.g. Development Estate)
- Receipted Mortgage - Unregistered Land
You represent the buyer. The transaction has completed. How do you register their title?
(a) Registered Title
- Form AP1
- 30 Working Days from Priority Search
- Failure to submit within priority period may result in registered interests binding
(b) Unregistered Title
- Form FR1
- Unregistered Title
- Within 2 Months of Completion
- Failure will render transaction void and legal title will revert to seller. Buyer maintains the equitable title.
Your client is the buyer of a property that has just completed. The property is in England. Explain stamp duty.
- SDLT (England)
- Submit and Pay within 14 days of completion
- Receive SDLT5 Certificate
Your client is the buyer of a property that has just completed. The property is in Wales. Explain stamp duty.
- LTT (Wales)
- Submit and Pay within 30 days of completion
- Receive WRA Certificate
Your client wants to sell their property. What must they obtain to market the property?
Obtain EPC
Grades between A - G
Valid for 10 Years
Your client is selling their house. They want a summary of the surveys they could have.
(a) Basic Valuation Survey
* Valuation & identify major obvious defects.
* Lenders will insist on a valuation
(b) Homebuyer Report
* Detailed Survey
* Property in a reasonable condition
* Property aged less than 150 years old
(c) Full Structural Survey
* Expensive - Full Survey
* Property is listed
* Property has had extensive renovations
* Alterations are planned
* Older than 150 years Old
You act for the buyer of unregistered land. Your client asks you to explain how you investigate title.
List the five stages of investigation.
(a) Review Epitome of Title
- Relevant Deeds (Root of Title)
- Copies of Referenced Documents
- Power of Attorney (If applicable)
- Death Certificate (Transfer by survivorship)
- Grant of Representation (Transfer by will or intestacy)
(b) Central Land Charges Search
- Shows charges noted on the register
(c) Index Map SIM Search
- Registered Titles within Boundary
- Pending Registration Applications
- Cautions Against First Registration
(d) Ensure deeds are valid
- Prior to 31 July 1990: Each deed signed, sealed, delivered
- August 1990: Signed and Delivered. No need for a seal.
(e) Ensure stamp duty is paid
- Default: Each deed stamped with an ad valorem stamp
- Exempt Deeds (Post 1931): Particulars Delivered Stamp and Certificate for Value
- If missing, the buyer solicitor should insist the seller pays the stamp duty with proof.
Your client, the buyer of unregistered land, asks you to explain what a ‘good root of title’ means when you explain the need to investigate deeds forming the epitome of title
- Dated more than 15 years ago
- Deals with both legal and beneficial title
- Adequately describes land being
- Does not cast doubt on the seller’s title
Your client wants to undetake interior works on their property. They want to know what, if any, consent is required.
The works will cause material impact to the interior only.
(a) Planning Permission
- Not required
- Planning permission is never required if the works are soley internal.
(b) Building Regulation Consent
- Required if works are for….
- Extension or Erection of Building
- Installation of Controlled Service/Fittings
- Material change to use of building
(c) Other Possibilities
- Listed Building? Listed Building Consent
- In Conservation Area? Planning Permission (England) or Conservation Area Consent (Wales).
Your client wants to external works on their property. They want to know what, if any, consent is required.
The works will cause material impact to the exterior..
(a) Planning Permission
- Required
- Planning permission is required if the external works are material.
- Not required if the work is not material or covered by GPDO.
(b) Building Regulation Consent
- Required if works are for….
- Extension or Erection of Building
- Installation of Controlled Service/Fittings
- Material change to use of building
(c) Other Possibilities
- Listed Building? Listed Building Consent
- In Conservation Area? Planning Permission (England) or Conservation Area Consent (Wales).
Your client wants to external works on their property. They want to know what, if any, consent is required.
The works will not cause material impact to the exterior.
(a) Planning Permission
- Not Required
- Planning permission is not required if the external works are immaterial.
- Not required if the work is not material or covered by GPDO.
(b) Building Regulation Consent
- Required if works are for….
- Extension or Erection of Building
- Installation of Controlled Service/Fittings
- Material change to use of building
(c) Other Possibilities
- Listed Building? Listed Building Consent
- In Conservation Area? Planning Permission (England) or Conservation Area Consent (Wales).
Your client wants to change the use of their property. They want to know what, if any, consent is required.
(a) Planning Permission
- Change to Differnt Use Class: Required
- Same Use Class: Not Required
- Sui Generis Change: Required
(b) Building Regulation Consent
- Required if it is a material change to use of building
(c) Other Possibilities
- Listed Building? Listed Building Consent
- In Conservation Area? Planning Permission (England) or Conservation Area Consent (Wales).
Your client has been served with an enforcement notice for breach of planning law.
They would like you to explain what this means and the possible outcomes.
(a) Procedure: Served by the local authority. It gives the recipient 28 days notice that land must be restored or comply with conditions.
(b) Outcome: After 28 days, the land owner may be
* Fined or
* Authority can enter, carry out work, and recover as expense
(c) Enforcement: It can be used for breaches of planning permission, and building regulations.
For planning law breaches:
Wales (all time) or England, before 25 April 2024:
- Building Development: Within 4 years of completion
- Change to Single Dwelling: Within 4 years of completion
- Other changes of use: Within 10 years of completion
- Deliberate Concealment: No Limit to Apply to Magistrates
**England After 25 April 2024: **
- 10 Years for All Breaches
- Deliberate Concealment: No Limit to Apply to Magistrates
Your client has been served with an stop notice for breach of planning law.
They would like you to explain what this means and the possible outcomes.
(a) Procedure: Can only be served following service of an enforcement notice.
(b) Outcome: Requires activity to cease immediately.
(c) Enforcement: It cannot be used to
* Prohibit use as a dwelling house or
* Prohibit activities carried out for more than 4 Years
* Enforcement time limits….
Wales (all time) or England, before 25 April 2024:
- Building Development: Within 4 years of completion
- Changes of use: Within 10 years (subject to 4 year rule)
- Deliberate Concealment: No Limit to Apply to Magistrates
England After 25 April 2024:
- 10 Years for All Breaches (subject to the 4 year rule)
- Deliberate Concealment: No Limit to Apply to Magistrates
Your client is concerned that the local authority will brind action for their breach of building regulations.
The property is in Wales.
Explain the possible options and time limits.
The rules apply only to Wales for Building Regulations:
(a) Prosecution: They can sue the builder, installer or main contractor up to 6 Months after discovery of the breach, subject to a limit of 2 years after completion of the work.
(b) Enforcement Notice: Thy can serve a notice giving you 28 days to alter or remove the work. The deadline for this is 1 Year After Completion.
(c) Injunction: The authority can always (unlimited time) apply for an injunction per s36(6) Building Act 1984. Usually this will only be if the work is dangerous.
Your client is concerned that the local authority will brind action for their breach of building regulations.
The property is in England.
Explain the possible options and time limits.
The rules apply only to England for Building Regulations:
(a) Prosecution: They can sue the builder, installer or main contractor at any point in the future - unlimited.
(b) Enforcement Notice: They can serve a notice giving you 28 days to alter or remove the work. The deadline for this is 10 Year After Completion.
(c) Injunction: The authority can always (unlimited time) apply for an injunction per s36(6) Building Act 1984. Usually this will only be if the work is dangerous.
Your client, the buyer, will have to pay SDLT on their new purchase.
They ask you to explain what the SDLT will be paid on for their freehold transaction, and whether any special rules may apply.
(a) SDLT paid on Premium
* This is the price paid for the property
(b) Second Residential Property
* If this is their second residential property, an dditional 3% is payable on the entire price payable.
(c) First Time Buyer Rates
* If the buyer is a first time buyer, this may apply.
* All purchasers must be first time buyers (not only one)
* Property cannot be more than £625k
* If applicable, £0 - £425k @ 0% ; £425k - £625k @ 5%
(d) Payment
* Paid within 14 days of the effective date. This is usually completion but could be from occupation if earlier.
* Buyer will receive SDLT 5 Certificate.
Your client, the buyer, will have to pay SDLT on their new purchase.
They ask you to explain what the SDLT will be paid on for their leasehold transaction, and whether any special rules may apply.
(a) Paid on the…
* Both Premium and NPV
* The same for Residential and Non-Residential.
(b) Second Residential Property
* If this is their second residential property, an dditional 3% is payable on the entire price payable.
(c) First Time Buyer Rates
* If the buyer is a first time buyer, this may apply to the premium.
* All purchasers must be first time buyers (not only one)
* Property cannot be more than £625k
(d) Payment
* Paid within 14 days of the effective date. This is usually completion but could be from occupation if earlier.
* Buyer will receive SDLT 5 Certificate.
Your client, the buyer, will have to pay LTT on their new purchase.
They ask you to explain what the SDLT will be paid on for their leasehold transaction, and whether any special rules may apply.
(a) Paid on the…
* Residential Leasehold : Paid on Premium Only
* Non-Residential Leasehold: Paid on both Premium and NPV
(b) Second Residential Property
* If this is their second residential property, an additional 3% is payable on the entire price payable.
(c) First Time Buyer Rates
* No first time buyer relief in Wales.
(d) Payment
* Must be calculated and paid within 30 days of the effective date. This is usually completion but could be from occupation if earlier.
* Buyer will receive a WRA Certificate.
Your client, the buyer, will have to pay LTT on their new purchase.
They ask you to explain what the SDLT will be paid on for their freehold transaction, and whether any special rules may apply.
(a) Paid on the Premium Only
(b) Second Residential Property
* If this is their second residential property, an additional 3% is payable on the entire price payable.
(c) First Time Buyer Rates
* No first time buyer relief in Wales.
(d) Payment
* Must be calculated and paid within 30 days of the effective date. This is usually completion but could be from occupation if earlier.
* Buyer will receive a WRA Certificate.
You represent a commercial buyer.
You wish to make pre-contract enquiries.
What form would you use and when?
- CPSE 1: Applies to all commercial property transactions. Covers boundaries, benefits and burdens, condition, contents, utilities, planning and building regulations, VAT treatment.
- CPSE 2: Applies where property is subject to commercial tenancies.
- CPSE 3: Applies on the grant of the new lease.
Note, the buyer can raise whatever enquiries they like.
Seller’s solicitor may decide to respond if they feel that they are irrelevant.
CPSE 2
You represent a residential buyer.
You wish to make pre-contract enquiries.
What form would you use and when?
- TA6: General property information form that is always used and covers matters such as boundaries, benefits/burden, disputes, complaints, alterations, permission, utilities.
- TA10: Fittings and content form excluded/included in the sale. Always used.
- TA7: Only used where the property is a long leasehold.
- TA8: Only used where the property is a new build.
Note, Buyer’s solicitor may only raise additional enquiries to clarify issues arising out of documents provided, or relevant to title, use, location and nature of the property.
Your client, the buyer, has failed to completed on time. They ask for advice on the possible consequences.
(a) SCS Interest
- Payable once completion date has occurred
- Buyer pays interest on price less any deposit paid
- Law Society Interest Rate: 4% above Barclays Base Rate
- Not Available if Contract Rescinded
(b) Common Law Damages
- Even if rescinded, common law damages claimed
- Any interest under SCS is deducted from such a sum.
(c) Recession
- Seller can serve notice to complete
- Service makes time of the essence
- If buyer hasn’t paid full 10% deposit, they must pay the 10% immediately irrespective of the % agreed upon.
- Parties must complete within 10 working days commencing the day after the notice is served
- If the buyer fails within 10 days, the remedies follow…
i. Seller may rescinds; and
ii. Seller forfeits the deposit and any interest; and
iii. Seller resells the property; and
iv. Seller also claims contractual damages.
Your client, the seller, has failed to completed on time. They ask for advice on the possible consequences.
(a) SCS Interest
- Payable once completion date has occurred
- Seller pays interest on the full purchase price
- Law Society Interest Rate: 4% above Barclays Base Rate
- Not Available if Contract Rescinded
(b) Common Law Damages
- Even if rescinded, common law damages claimed
- Any interest under SCS is deducted from such a sum.
(c) Recession
- Buyer can serve notice to complete
- Service makes time of the essence
- Parties must complete within 10 working days commencing the day after the notice is served
- If the seller fails within 10 days, the remedies follow…
i. Buyer may rescinds; and
ii. Demands return of deposit with accrued interest; and
iv. Buyer also claims contractual damages; or
v. Alternatively, request specific performance
Your client comes to you with a problem relating to the term of his lease. He asks you to explain the following term:
A term of 1 year, from and including 9th July 2024”
- Starts on the same date specified: 9th July 2024
- Expires day before day specified: 8th July 2025
Your client comes to you with a problem relating to the term of his lease. He asks you to explain the following term:
A term of 1 year, from 9th July 2024”
- Starts on day after the date specified: 10th July 2024
- Expires the same day specified: 9th July 2025
You represent a commercial landlord. They seek advice on an open market rent review clause. They want you to explain assumptions and disregards of the hypothetical lease.
(a) Assume…
* Willing Landlord & Tenant
* Tenant Has Complied With Obligations
(b) Disregard…
* Tenants Voluntary Actions
* Effect of Tenant Occupation on Rent
* Goodwill Attached to Tenant
Your client, a tenant, has a lease with a reparing covenant as follows:
“To put into repair and keep in repair”
He seeks advice on the the extent of the repairing duties.
This is a Full Repairing Obligation
This is onerous - To put the premises into repair and maintain it at such a standard
Your client, a tenant, has a lease with a reparing covenant as follows:
“To keep in good repair”
He seeks advice on the the extent of the repairing duties.
This is a Full Repairing Obligation
This is onerous - To put the premises into repair and maintain it at such a standard
Your client, a tenant, has a lease with a reparing covenant as follows:
“To keep the premises in no worse condition than at the commencement”
He seeks advice on the the extent of the repairing duties.
This is a Qualified Repairing Obligation
This is less onerous - Specified to make clear that there is no obligation to put into repair
Your client is the tenant of a lease.
The company wishes to undertake alterations.
The lease is silent as to alterations
Advise whether alterations are permitted.
Tenant is free to carry out alterations without explicit consent subject to the doctrine of ‘waste’
Your client is the tenant of a lease.
The company wishes to undertake alterations.
The lease contains an absolute covenant against alterations
Advise whether alterations are permitted.
Alterations are not allowed.
Tenant can request permission, but the landlord has no obligation to even consider a request.
……………
However, note that if tenant proposes improvements, even if it contains an absolute covenant, the tenant may rely on s.3 LTA by serving notice on landlord of an intention to carry out improvements. The landlord may…
- Offer to carry out the works itself and increase rent to cover the cost > If tenant refuses, cannot ask court for permission.
- Doesn’t object within 3 months > Tenant can carry out the improvements
- Objects: Tenant can apply for court permission.
Your client is the tenant of a lease.
The company wishes to undertake alterations.
The lease contains a qualified covenant against alterations
Advise whether alterations are permitted.
Alterations are only permitted with consent
However, s.19(2) LTA converts it to a fully qualified covenant if the tenants thinks it is an improvement. Consequently, the Landlord must act reasonably in deciding whether to withhold consent. They must do so:
- In writing; and
- Within a reasonable time (28 days).
Note, s.3 LTA is also available so that the tenant can serve notice, and if necessary apply for court permission.
Your client is the tenant of a lease.
The company wishes to undertake alterations.
The lease contains a fully qualified covenant in relation to alterations
Advise whether alterations are permitted.
Landlord must act reasonably in deciding whether to withhold consent. They must do so:
- In writing; and
- Within a reasonable time (28 days).
Note, s.3 LTA is also available so that the tenant can serve notice, and if necessary apply for court permission.
Your client is the tenant of a lease.
The company wishes to change their use.
The lease is silent in relation to change of use.
Advise whether thr change is permitted.
Tenant is free to use in any way desired without explicit consent
Your client is the tenant of a lease.
The company wishes to change their use.
The lease contains an absolute covenant against changes of use.
Advise whether thr change is permitted.
Changes of Use are not allowed.
Landlord has no obligation to consider request.
Your client is the tenant of a lease.
The company wishes to change their use.
The lease contains a qualified covenant against changes of use.
Advise whether thr change is permitted.
Only permitted with consent
There is no automatic conversion to a full qualified covenant.
Your client is the tenant of a lease.
The company wishes to change their use.
The lease contains a fully qualified covenant against changes of use.
Advise whether thr change is permitted.
Landlord must act reasonably in deciding whether to withhold consent.
They must do so:
* In writing; and
* Within a reasonable time (28 days).
Your client is the tenant of a lease.
The company wishes to assign.
The lease is silent in relation to assignment
Advise whether assignment is permitted.
Tenant is free to assign without explicit consent
Your client is the tenant of a lease.
The company wishes to assign.
The lease contains an absolute covenant against assignment
Advise whether assignment is permitted.
Assignment is not allowed.
Landlord has no obligation to consider request.
Your client is the tenant of a lease.
The company wishes to assign.
The lease contains a qualified covenant against assignment
Advise whether assignment is permitted.
Only permitted with consent
s.19 LTA converts it to a fully qualified covenant. Therefore, landlord must act reasonably in deciding whether to withhold consent.They must do so:
- In writing; and
- Within a reasonable time (28 days).
Reasonable refusal may include proposed use (e.g. a shopping centre rules on mixing) or justifiable concerns about ability to pay rent. A landlord cannot withhold consent on grounds not related to the tenant/landlord relationship
Your client is the tenant of a lease.
The company wishes to assign.
The lease contains a fully qualified covenant against assignment
Advise whether assignment is permitted.
Landlord must act reasonably in deciding whether to withhold consent.They must do so:
- In writing; and
- Within a reasonable time (28 days).
Reasonable refusal may include proposed use (e.g. a shopping centre rules on mixing) or justifiable concerns about ability to pay rent. A landlord cannot withhold consent on grounds not related to the tenant/landlord relationship
Your client is the tenant of a lease.
The company wishes to underlet.
The lease is silent as to underletting.
Advise whether underletting is permitted.
Tenant is free to underlet without explicit consent
Your client is the tenant of a lease.
The company wishes to underlet.
The lease contains an absolute covenant against underletting.
Advise whether underletting is permitted.
Underletting is not allowed.
Landlord has no obligation to consider request.
Your client is the tenant of a lease.
The company wishes to underlet.
The lease contains a qualified covenant against underletting.
Advise whether underletting is permitted.
Only permitted with consent
s.19 LTA converts it to a fully qualified covenant. Landlord must act reasonably in deciding whether to withhold consent. They must do so:
- In writing; and
- Within a reasonable time (28 days).
The landlord can limit the underletting to prohibit underletting….
- with a property that does not belong to the landlord;
- on payment of a lump sum; or
- with a rent free period beyond what is normal in the market.
- at a rent no lower than that in the tenant’s lease;
- with covenants less onerous than in tenant lease
Your client is the tenant of a lease.
The company wishes to underlet.
The lease contains a fully qualified covenant in relation to underletting.
Advise whether underletting is permitted.
Landlord must act reasonably in deciding whether to withhold consent. They must do so:
- In writing; and
- Within a reasonable time (28 days).
The landlord can limit the underletting to prohibit underletting….
- with a property that does not belong to the landlord;
- on payment of a lump sum; or
- with a rent free period beyond what is normal in the market.
- at a rent no lower than that in the tenant’s lease;
- with covenants less onerous than in tenant lease
Your client is the landlord of a lease created before 1 January 1996.
He seeks advice on the liability of the original landlord, original tenant and assignee following assignment of the lease.
This lease falls under the Old Lease Regime:
(a) Breaches Committed Before Assignment:
- Outgoing landlord remains liable for their breaches
- Outgoing tenant remains liable for their breaches
- Incoming assignee not liable for pre-assignment obligations.
(b) Breaches Committed After Assignment
- Liability of original landlord continues for full lease
- Liability of original tenant continues for full lease
- Assignee not be liable unless they entered into a direct covenant in the licence to assign
Your client is the landlord of a lease created after the 1st January 1996.
He seeks advice on the liability of the original landlord, original tenant and assignee following assignment of the lease.
This lease falls under the New Lease Regime:
(a) Breaches Committed Before Assignment:
- Outgoing landlord remains liable for their breaches
- Outgoing tenant remains liable for their breaches
- Incoming assignee not liable for pre-assignment obligations.
(b) Breaches Committed After Assignment
- Original Landlord: The landlord can apply for release from the tenant. If refused, they can apply to court.
- Original Tenant: Automatic release of the assignor. However, if the outgoing tenant provided an AGA, the landlord could sue the former tenant who is guaranteeing the obligations of their immediate successor . An outgoing tenant should ensure their assignee enters into an express indemnity covenant to pay rent and perform covenants.
- Assignee: Automatic transmission of the benefit and burden of all covenants to the assignee/revisionar. Liable if they breach a covenant.
You act for the landlord, granting a new lease to a tenant.
Explain the primary steps during the pre-exchange phase.
(a) Deduce title
(b) Respond to queries;
(c) Prepare draft lease
(d) Engross the agreement
(c) Obtain Landlord signature and send to tenant
You act for the tenant, obtaining a new lease
Explain the primary steps during the pre-exchange phase.
(a) Review draft lease (drafted by landlord)
(b) Investigate title
(c) Raise pre-contract enquiries
(d) Complete searches;
(e) Arrange tenant to sign counterpart
You act for the landlord, granting a new lease to a tenant.
Explain the primary steps during the exchange phase.
Exchange contracts, usually Formula B
No deposit is usually payable
You act for the landlord, granting a new lease to a tenant.
Explain the primary steps during the pre-completion phase.
(a) Prepare original & counterpart lease
(b) Obtain landlord signature;
(c) Send counterpart to tenant
(d) Prepare/send completion statement
You act for the tenant, obtaining a new lease
Explain the primary steps during the pre-completion phase.
(a) Arrange for tenant to sign counterpart lease
(b) Obtain funds from client
(c) Raise pre-completion searches (OS1/OS2/OS3)
You act for the landlord, granting a new lease to a tenant.
Explain the primary steps during the completion phase.
(a) Agree over phone to complete & date
(b) Send completed original and counterpart to each other
You act for the tenant, obtaining a new lease
Explain the primary steps during the pre-completion phase.
(a) Send monies to landlord solicitor
(b) Agree over phone to complete & date
(c) Send completed original and counterpart to each other
You act for the landlord, the tenant is assigning their leasehold.
Explain the primary steps during the pre-exchange phase.
(a) Require an undertaking for costs
(b) Drafts licence to assign - the licence should contain a direct covenant by the assignee
You act for the tenant who is assigning their leasehold.
Explain the primary steps during the pre-exchange phase.
(a) Applies for consent from landlord
(b) Drafts the contract
(c) Assignee solicitor reviews draft contracts - the landlord is not normally party to the contract.
(d) If applicable, provide AGA.
You act for the assignee who is having a leasehold assigned by the current tenant
Explain the primary steps during the pre-exchange phase.
(a) Raises CPSE1 enquiries and CPSE 4 enquiries
(b) Reviews draft contracts - the landlord is not normally party to the contract.
(c) Provide Landlord with Direct Covenant
You act for the landlord, the tenant is assigning their leasehold.
Explain the primary steps during the pre-completion phase.
They are not involved
It is now between the assignor (currrent tenant) and assignee.
You act for the tenant who is assigning their leasehold.
Explain the primary steps during the pre-completion phase.
Prepares a completion statement, calculating attribution of rent due
You act for the assignee who is having a leasehold assigned by the current tenant
Explain the primary steps during the pre-completion phase.
(a) Conduct pre-completion searches
(b) Drafts deed of assignment.
You act for the landlord, the tenant is assigning their leasehold.
Explain the primary steps during the completion phase.
Receives noticee of the assignment/underlease within a month that the transaction has been completed.
You act for the tenant who is assigning their leasehold.
Explain the primary steps during the completion phase.
(a) Receipt of Monies from assignee
(b) Execution and receipt of original/counterpart
(c) Sends notice of the assignment to landlord within a month that the transaction has been completed.
You act for the assignee who is having a leasehold assigned by the current tenant
Explain the primary steps during the completion phase.
Execution and receipt of original and counterpart underlease
You act for the landlord, the tenant is underletting their leasehold.
Explain the primary steps during the pre-exchange phase.
(a) Requires an undertaking for costs
(b) Drafts licence to underlet
You act for the tenant who is underletting their leasehold.
Explain the primary steps during the pre-exchange phase.
(a) Applies for consent from landlord
(b) Drafts the underlease.
(c) Tenant must deduce leasehold title as follows for the under tenant:
- Lease over 7 years: provide official copy of registered leasehold title.
- Lease is 7 years or under: provide an official copy of the landlord’s freehold title with a copy of the lease
You act for the undertenant who is obtaining a leasehold interest from the current tenant.
Explain the primary steps during the pre-exchange phase.
(a) Carry out all the usual searches.
(b) Provide Landlord with Direct Covenant
You act for the landlord, the tenant is underletting their leasehold.
Explain the primary steps during the pre-completion phase.
Not Involved
You act for the tenant who is underletting their leasehold.
Explain the primary steps during the pre-completion phase.
Prepares a completion statement, calculating attribution of rent due
You act for the undertenant who is obtaining a leasehold interest from the current tenant.
Explain the primary steps during the pre-completion phase.
Pre-completion searches
You act for the landlord, the tenant is underletting their leasehold.
Explain the primary steps during the completion phase.
Receives notice of the underlease within a month that the transaction has been completed.
You act for the tenant who is underletting their leasehold.
Explain the primary steps during the completion phase.
(a) Execution and receipt of original and counterpart underlease
(b) Sends notice of the underlease to landlord within a month that the transaction has been completed.
You act for the undertenant who is obtaining a leasehold interest from the current tenant.
Explain the primary steps during the completion phase.
Execution and receipt of original and counterpart underlease
Your client, a commercial landlord, has a lease that is longer than 6 months.
Their lease does not contract out of the LTA security of tenure provisions.
They want to know whether their tenancy is covered by security of tenure.
Fixed terms tenancies longer than 6 months are covered so long as it is….
(a) Occupied by the Tenant
This excludes…
* Vacant Premises
* Underlet Whole
* Part of an underletting of the part
(b) For the purposes of business
This includes…
* Trade and Business
* Charity Shops
* Members Clubs
* Residential Uses
(c) Not an excluded lease:
- Agricultural tenancies
- Mining leases
- Service tenancies
- Tenancy at Will
Your client, a commercial landlord, has a lease that is shorter than 6 months.
Their lease does not contract out of the LTA security of tenure provisions.
They want to know whether their tenancy is covered by security of tenure. They want the advise to focus soley on the exclusion of tenancies shorter than 6 months.
It depends on the term:
(a) Renewable
* If the lease is renewable beyond 6 months, it is covered
(b) Successive tenancies
* If the tenant has been in occupation for at least 12 months through successive tenancies , it is covered.
If it is neither renewable beyond 6 months nor 12 months of successive occupations, it is an excluded lease.
Your client, a commercial landlord, is entering into a tenancy with a business.
They want to contract out of the security of tenure provisions and see your advice as to whether this is possible.
It is a periodic lease.
Whilst periodic leases can be covered by security of tencure, you cannot contract out of the provisions for periodic leases.
Your client, a commercial landlord, is entering into a tenancy with a business.
They want to contract out of the security of tenure provisions and see your advice as to whether this is possible.
It is a fixted tenancy lease.
Your client can contract out.
(a) Landlord serves a warning notice on the tenant. This should detail the consequences of contracting out before the parties complete the lease.
(b) The tenant must sign a deceleration before completing the lease. The method depends on how far away completion is from the date the decleration is made:
- Completion is at least 14 days from the warning notice: Simple signed declaration
- Completion is less than 14 days away: Statutory declaration before a solicitor
(c) The lease must contain reference to the notice and declaration
Your client, a landlord of a commercial tenant, would like to bring their tenants protected tenancy to an end at the end of their contractual term.
Advise them on how this could be achieved and the grounds available to them.
Serve a hostile s.25 notice. to oppose renewal of the lease. There are seven grounds on which the landlord can oppose renewal:
- Persistent and Serious breach of a repairing obligation
- Persistent delay paying rent
- Serious & persistent breaches of covenants
- The landlord offers suitable alternative accommodation
- Landlord intends to demolish or reconstruct premises
- Landlord intends to occupy the premises for itself and has owned the reversion for at least 5 years before termination.
Your client, a landlord of a commercial tenant, would like to bring their tenants protected tenancy to an end at the end of their contractual term.
They would like to serve a s.25 notice but are unsure as to
- Whether the court must grant them possession
- Whether they will need to compensate the tenant.
- If compensation is required, how much will be payable?
- Repairing Breach (Discretionary - Non Compensatory)
- Rent Delay (Discretionary - Non Compensatory)
- Covenant Breaches (Discretionary - Non Compensatory)
… - Alternative Accomodation (Mandatory - Non Compensatory)
… - Demolishion or Reconstruction (Mandatory - Compensatory)
- Landlord Occupation (Mandatory - Compensatory)
If compensation is payable….
- Occupied for less than 14 years: 1% Rateable Value
- Occupied for 14 years or more: 2 % Rateable Value
Your client would like to know the rules for serving a notice for a protected tenancy.
(a) Date of termination cannot be before contractual term ends
(b) The notice must be served between 6 - 12 months before the proposed termination date
(c) Served on the correct landlord:
- s.25 and s.26: Competent landlord - the first to own a revisionary interest that will not end within 14 months.
- s.27: Immediate Landlord even if they are not competent.
Your client, a landlord of a commercial tenant, would like to initiate a lease renenewal.
Advise them on how this could be achieved and the grounds available to them.
They can serve a friendly s.25 notice for the the lease to commence the day after the date of termination
It proposes the rent to be paid and the terms of renewal.
Your client, the tenant of a protected tenancy, wants to Initiate lease renewal rather than relying on the landlord by way of a friendly s.25 notice.
Advise them on how they can achieve this.
They can serve a s.26 notice if the conditions are satisfied…
- Lease originally granted was for a contractual term of more than 1 year
- It is served within the 6-12 months before the proposed term commencement date
- It is served on a competent landlord
….
If served correctly, there are three possible outcomes:
(a) No counter-notice served. Landlord Agrees: Parties enter into a lease
(b) No counter-notice served. Landlord Fails to Respond: Tenant can apply to court after two months have elapsed from the s.26 notice, no later than the proposed commencement of the new lease.
(c) Landlord Serves Counter Notice: A landlord has 2 months from the s.26 notice to serve a counter-notice. The parties may apply to court after the landlord served a counter-notice.
Your client, the tenant of a protected tenancy, wants to Initiate lease renewal rather than relying on the landlord by way of a friendly s.25 notice.
They have served a s.26 notice. The landlord has failed to respond. What can they do?
Tenant can apply to court once two months have elapsed from the s.26 notice, no later than the proposed commencement of the new lease.
The court could grant a term of up to 15 years, open market rent.
Your client, the tenant of a protected tenancy, wants to Initiate lease renewal rather than relying on the landlord by way of a friendly s.25 notice.
They have served a s.26 notice. Landlord Serves Counter Notice. What are the possible consequences should ti go to court?
(a) Order for Terms: If parties are unable to agree, court can grant a term of up to 15 years, open market rent.
(b) Order to grant a new lease: Tenant can apply for an order to grant a new lease, even if the landlord opposed the renewal. If the tenant does not like the terms of the order, it has 14 days to ask the court to revoke the order - they must agree but the tenant loses the right to renew.
(c) Order for termination of the existing lease: A landlord opposing renewal (s.26 or s.25) can apply for an order for termination of the existing lease. This brings the existing lease to an end, following there is no right to remain in occupation.
Your client, the tenant of a protected tenancy, wants to end their lease after (during) a period of holding out.
How can they achieve this?
They can serve a s.27 notice.
The tenant must give notice 3 months of the intended termination date, which must be no earlier than the end of the contractual term.
Once a s.27 notice has been served, the tenant cannot serve a s.26 notice, nor the landlord serve a s.25 notice. During period of holding out and negotiation, the tenant pays rent as it was last reviewed.
Your client, a commercial landlord, wishes to recover rent arrears from tenants .
Advise the best method for achieving this.
(a) Option 1: Commercial Rent Arrears Recovery (CRAR)
- Self-help remedy that enables landlords to recover rent arrears from tenants without going to court by appointing enforcement agents to collect rent or seize goods
- The premises must be purely commercial
- Minimum of 7 days principal rent is owed
- The lease has not been forfeited
- It can only be used for principal rent + VAT & Interest (service charges excluded).
(b) Option 2: Damages
* Apply to court for contractual damages.
* However, this is limited to the reduction in the value of the reversion which often remains unaffected.
(c) Option 3: Action in Debt
* A landlord can issue proceedings to recover debt such as unpaid rent, service charges or insurance rent
* Limited in rent in the 6 years before the issue of proceedings
Your client, a landlord, wants to be able yo recover ther cost of carrying out repairs not completed in breach of a tenant’s obligations as a debt. In drafting a new lease, how can this be achieved?
Include a Jervis v Harris clause giving the landlord the right to (i) Enter the property; (ii) Carry out repairs; and (iii) Recover the cost of the repairs.
This is only available for breach of repairing covenants, and must be included in the lease. However, the cost of carrying out the repairs is treated as debt and can be recovered in full without needing to serve a s.146 notice.
Your client does not have a forfeiture clause in their lease. They want to know whether they can still forfeit?
No.
Forfeiture is not an automatic right.
It is only permitted as the lease provides.
Your client, a landlord, has a lease with a tenant containing forfeiture clauses.
The tenant has failed to pay rent.
Can the landlord forfeit? How?
Yes
Landlord is entitled to forfeit as soon as the lease allows. No need for a s.146. There are two options:
(a) Peaceable Re-Entry; or
(b) Court Forfeiture Order
Your client, a landlord, has a lease with a tenant containing forfeiture clauses.
The tenant has breached various covenants
Can the landlord forfeit? How?
Serves a s.146 notice that
- details the alleged breach; and
- gives reasonable opportunity to remedy the breach;
- failing which, the landlord is able to forfeit.
There are two methods:
(a) Peaceable Re-Entry; or
(b) Court Forfeiture Order
Your client, a landlord, has heard that he may lose the right to forfeit if there is waiver.
He is confused what this means and asks you to explain what waiver is, and when it may occur.
If the landlord acts in a way that acknowledges the continuing existence of the lease, the landlord risks losing the right of forfeiture. Implied waiver includes the landlord….
- Unequivocally recognising existence of lease;
- With knowledge of the breach; and;
- Communicates that act to the tenant.
Whether the right to forfeit re-occurs depends on the breach:
(a) Once and For All Breach: Once waived, the right never arises again for that breach. Includes:
- Non-payment of rent
- Unlawful assignment
- Unlawful Underletting
- Insolvency Event
(b) Continuing Breach: Each day breach continues, the landlord regains the right to forfeiture. Includes:
- Failure to keep premises in repair;
- Breach of user covenant;
- Failure to insure.
Your client asks you to advise on the registration form required.
The property has registered title.
Form AP1
Failure to submit within priority period (30 working days from OS1/OS2) may result in registered interests binding
Your client asks you to advise on the registration form required.
The property has unregistered title.
Form FR1
Within 2 Months of Completion. Failure will render transaction void and legal title will revert to seller, leaving only equitable title.
Your are advising a buyer on the validity of a deed.
The deed was created prior to 31 July 1990.
What is required?
Each deed must be signed, sealed and delivered
Your are advising a buyer on the validity of a deed.
The deed was created after to 31 July 1990.
What is required?
Signed and Delivered
No need for a seal.
Your are advising a buyer on whether stamp duty has been paid or whether they should obtain an undertaking from the seller to pay stamp duty on the deeds.
What is the default (post-1931) method of knowing whether it has been paid or not?
Stamp Duty has been paid if
each deed is stamped with an
ad valorem stamp
Your are advising a buyer on whether stamp duty has been paid or whether they should obtain an undertaking from the seller to pay stamp duty on the deeds.
What is the exempt (pre-1931) method of knowing whether it has been paid or not?
Particulars Delivered Stamp with Certificate for Value
You are advising your client on title investigation for registered land.
They ask you to explain in what register you will find the address.
Property Register
You are advising your client on title investigation for registered land.
They ask you to explain in what register you will find the property description.
Property Register
You are advising your client on title investigation for registered land.
They ask you to explain in what register you will find the detail of size and location of the land.
Property Register
You are advising your client on title investigation for registered land.
They ask you to explain in what register you will find any interests benefitting the land.
Property Register
You are advising your client on title investigation for registered land.
They ask you to explain in what register you will find the title guarantee.
Proprietorship Register
You are advising your client on title investigation for registered land.
They ask you to explain in what register you will find any morgage restrictions
Proprietorship Register
and
Charges Register
You are advising your client on title investigation for registered land.
They ask you to explain in what register you will find any tenancy in common restriction
Proprietorship Register
You are advising your client on title investigation for registered land.
They ask you to explain in what register you will find any interests burdening the property such as easements, leases and covenants?
Charges Register
A client approaches you concerned that their welsh council may take building regulation enforcement.
They ask you to explain the time limit for prosecution of a builder, installer or main contractor.
6 Months after discovery of the breach
Subject to a limit of 2 years after completion of the work.
A client approaches you concerned that their welsh council may take building regulation enforcement.
They ask you to explain the time limit for the council serving an enforcement notice on them as the owner/occupier.
1 Year After Completion
A client approaches you concerned that their welsh council may take building regulation enforcement.
They ask you to explain the time limit for the council seeking to obtain an injunction per s.36(6) BA 1984?
Unlimited Time
A client approaches you concerned that their English council may take building regulation enforcement.
They ask you to explain the time limit for prosecution of a builder, installer or main contractor.
Unlimited Time
A client approaches you concerned that their English council may take building regulation enforcement.
They ask you to explain the time limit for the council serving an enforcement notice on them as the owner/occupier.
10 Year After Completion
A client approaches you concerned that their English council may take building regulation enforcement.
They ask you to explain the time limit for the council seeking to obtain an injunction per s.36(6) BA 1984?
Unlimited Time
A client approaches you and asks you to advise on the enforcement time limit in relating to planning law (planning permission) breaches.
They live in England.
The work was completed before
25 April 2024
They seek advice specifically relating to building development.
Within 4 years of substantial completion
A client approaches you and asks you to advise on the enforcement time limit in relating to planning law (planning permission) breaches.
They live in England.
The work was completed before
25 April 2024
They seek advice specifically relating to a change of use to a Single Dwelling House.
Within 4 years of commencement of the building work
Note, a stop notice can never be used to prohibit use as a dwelling house
A client approaches you and asks you to advise on the enforcement time limit in relating to planning law (planning permission) breaches.
They live in England.
The work was completed before
25 April 2024
They seek advice specifically relating to a other Changes of use of breaches of conditions.
Within 10 years of of the change or breach
A client approaches you and asks you to advise on the enforcement time limit in relating to planning law (planning permission) breaches.
They live in Wales.
They seek advice specifically relating to building development.
Within 4 years of substantial completion
Note, in Wales there is no difference between work completed before or after 25 April 2024. The time limits are the same unlike England.
A client approaches you and asks you to advise on the enforcement time limit in relating to planning law (planning permission) breaches.
They live in Wales.
They seek advice specifically relating to a change of use to a Single Dwelling House.
Within 4 years of commencement of the building work
Note, in Wales there is no difference between work completed before or after 25 April 2024. The time limits are the same unlike England.
A client approaches you and asks you to advise on the enforcement time limit in relating to planning law (planning permission) breaches.
They live in Wales.
They seek advice specifically relating to a other Changes of use of breaches of conditions.
Within 10 years of of the change or breach
Note, in Wales there is no difference between work completed before or after 25 April 2024. The time limits are the same unlike England.
A client approaches you and asks you to advise on the enforcement time limit in relating to planning law (planning permission) breaches.
They live in England.
The work was completed after
25 April 2024
They seek advice specifically relating to building development.
10 Years for all breaches
Subject to the prohibition on using stop notices to
(a) Prohibit use as a dwelling house; and
(b) Prohibit activities carried out for more than 4 Years
A client approaches you and asks you to advise on the enforcement time limit in relating to planning law (planning permission) breaches.
They live in England.
The work was completed after
25 April 2024
They seek advice specifically relating to a change of use to a Single Dwelling House.
10 Years for all breaches
Subject to the prohibition on using stop notices to
(a) Prohibit use as a dwelling house; and
(b) Prohibit activities carried out for more than 4 Years
A client approaches you and asks you to advise on the enforcement time limit in relating to planning law (planning permission) breaches.
They live in England.
The work was completed after
25 April 2024
They seek advice specifically relating to a other Changes of use of breaches of conditions.
10 Years for all breaches
Subject to the prohibition on using stop notices to
(a) Prohibit use as a dwelling house; and
(b) Prohibit activities carried out for more than 4 Years
Your client is considering buying a property.
They note their concern about a positive covenant and ask you whether it will bind them should the proceed with the purchase.
Positive covenants will only bind if there is a chain of indemnity
To ensure the next owner absolves the original covenantor of liability if a positive covenant is breached, an indemnity covenant is used. If the chain is broken, the liability will lie with the last person to give an indemnity.
If you give an indemnity, and should you breach the covenant and the benefit holder sues the original coventee, they may proceed to claw back the costs from you, the new owner. If you refuse to give such a covenant (and continue the chain) the sellers may refuse to proceed with the sale.
However, you could provide an indemnity and then….
(a) Obtain indemnity insurance; if refused
(b) Approach the person with the benefit for consent to breach the covenant
Note, the upper tribunal cannot discharge positive covenants.
Your client asks you for the interest rate should a party fail to complete.
They are using unamended SCS.
Law Society Interest Rate
4% above Barclays Bank
Base rate
You are advising our client on open market rent review and the creation of a hypothetical lease.
How do we treat tthe existence of a Willing
Landlord & Tenant
Assume
You are advising our client on open market rent review and the creation of a hypothetical lease.
How do we treat the prospect that the Tenant Has Complied With Obligations?
Assume
You are advising our client on open market rent review and the creation of a hypothetical lease.
How do we treat the Tenants Voluntary Actions?
Disregard
You are advising our client on open market rent review and the creation of a hypothetical lease.
How do we treat the Effect of Tenant Occupation on Rent?
Disregard
You are advising our client on open market rent review and the creation of a hypothetical lease.
How do we treat any Goodwill Attached to a Tenant?
Disregard
You represent a tenant proposing improvements.
The lease contains an absolute covenant against alterations. However, your client is relying s.3 LTA by serving notice to carry out improvements.
How should you advise your client to respond if the Landlord makes an offer to carry out the works itself and increase rent to cover the cost?
Tenant does not need to agree.
However, if tenant refuses, they cannot ask the court for permission.
Therefore, they should agree if they wish for the improvements to be made.
You represent a tenant proposing improvements.
The lease contains an absolute covenant against alterations. However, your client is relying s.3 LTA by serving notice to carry out improvements.
How should you advise your client to respond if the **Landlord doesn’t object nor accept **(e.g. no reply).
You must wait 3 months.
If the Landlord doesn’t object within 3 months, the tenant can carry out the improvements
You represent a tenant proposing improvements.
The lease contains an absolute covenant against alterations. However, your client is relying s.3 LTA by serving notice to carry out improvements.
How should you advise your client if the Lanlord service notice of rejection.
If the landlord objects, the tenant can apply for court permission.
Permission may be granted if the imrpovements….
- Add to the letting value;
- Are reasonable
- Suitable to the character
- Will not diminish the value of any other property belonging to the landlord
Your client is purchasing a plot of land. The land has been using the land of another to access the plot, but there is no express easement.
How could an easement be implied?
s.62 LPA
- Only a grant, not reservation
- The right must have been enjoyed by the landowner at the time of the conveyance for it to be converted into an easement.
(a) Diversity of ownership or occupation prior to the conveyance; or
(b) Unity of occupation but usage was ‘continuous and apparent’
A client wishes to purchase two properties.
They own one and are looking to sell.
They ask for SDLT advice relating to additional property tax. What SDLT advice would you give?
An additional 3% SDLT is payable on ‘second homes’ and ‘additional properties’
You should arrange the transaction in such a way that (a) you don’t pay the additional 3% on both new purchases (sell the property before you purchase one); and (b) you purchase the most expensive property first so that the additional 3% is payable on the lesser premium.
For example….
(a) Sell pre-owned property
(b) Purchase expensive property (normal SDLT)
(c) Purchase cheaper property (Additional SDLT at 3%)
Your client approaches you and says that he is a joint tenant with two siblings
He wishes to sell them his share.
What advice should you provide?
- Sever share by written notice
- Enter into a land contract
- Notify any morgage lender (gain consent)
- Complete TR1 to transfer share
- Submit AP1 to Land Registry
- Buyers will need to pay SDLT
If the purchaser is taking on any remaining morgage (and discharging your client from the debt) then that is seen as part of the consideration price for SDLT purposes > morgage apportionment should be in the contract.
Your client is selling their interest in land.
They ask you to confirm how it will be transferred.
It must be transferred or created by deed validly executed and delivered - usually TR1 is used
Your client is trying to ascertain whether they have a right of way over another plot.
There is no express easement but the previous owner used the right of way about 15 years ago.
The previous owner was not the owner of the concerned plot.
S.62 may convert the informal right to an implied easement.
Since
(a) There was prior diversity of occupation there is no need to consider whether it was apparent continuous (which it would not be if not sued for 15 years)
(b) An informal permission or licence was granted to the occupier of the dominant land to use the servient
(c) There is a conveyance (transfer by deed or a leagal lease) of the dominant tenenment
On this approach s.62 could upgrade the use despite it not being used for a while. However, it must be show the seller had an informal permission even if a long time ago.
Your client is trying to ascertain whether they have a right of way over another plot.
There is no express easement but the previous owner used the right of way about 15 years ago.
The seller was the owner of the concerned plot.
Since there is no diversity of occupation, for s.62 to apply, you must consider whether the use of the seller was “continuous an apparent”
Since he hasn’t used it for 15 years, its unlikely to suceefd to upgrade to an implied easement.
Your client wishes to argue that an easement should be implied as a reservation.
What modes of implication are available?
The only modes of implied acquisition that will work in a reservation situation are necessity and common intention
Neither the rule in Wheeldon v Burrows nor s 62 of the Law of Property Act 1925 will work in a reservation situation.
Your client approaches yo to discuss whether their neighbour has an easement over their land.
Their neighbour parks all their cars on their carparking space 24/7
It can only be an easement if there is no excessive use.
Apply Batchelor as confirmed in Polo Woods
Does the right to park “leave [the servient owner] without any reasonable use of his land, whether for parking or anything else”?
You are asvising your client on the possible existence of an implied easement.
There was no conveyance.
What method of implciation could be relied upon?
If the land is not effected by conveyance, consider below Wheeldon v Burrows.
This is because, s.62 PA requires a grant or transfer of a legal estate or legal mortgage by deed (conveyance).
You are advising your client on the implication of an easement by virtue of s.62 LPA.
Since there was no diversity of occupation, you are relying on the ‘continuous and apparent use’ extension of s.62 - what does this mean?
A feature which would be seen on inspection, and which is neither transitory nor intermittent.
For example….
- Visible signs of a track
- Made use of within a reasonable period before the conveyance
Your client entered into a conveyance with the seller on the basis of a specific use.
The seller won’t allow them to do something key to that purpose.
What advice should you provide?
An easement may be implied provided it can be shown that both parties intended that it should be granted.
Simply:
(a) There is evidence of a common intention between the parties that the land was to be put to some definite and particular use or purpose, and
(b) An easement is necessary to give effect to that stated use or purpose.
For example, if parties itnend to build a dwelling house on land sold, it may be considered that connections to essential services are necessary for that purpose.
Note, this is available for reservations also. However, court will be slow to depart the general proposition of Wheeldon v Burrows that if a grantor wishes to reserve an easement, he should do so expressly.
Your client is entering into an agreement for the benefit of a lease. They ask you whether it needs registration.
It is a lease in excess of 7 years
Compulsorily registrable
This triggers first registration of the lease which must take place within 2 months of the grant of the lease if unregistered land.
Your client is entering into an agreement for the benefit of a lease. They ask you whether it needs registration.
It is a lease for less than 7 years
The lease does not need to be registered and, instead, such a lease will be overriding under Schedule 3, Paragraph 1 of the LRA.
However, it may be registered if between 3 and 7 years.
Your client is entering into an agreement for the benefit of a lease. They ask you whether it needs registration.
It is a lease for less than 3 years
Cannot be regisered
You represent the buyer of a property.
They ask you what search they should undertake for information on Planning Permission & Building Regulations.
CON29
(Local Search)
You represent the buyer of a property.
They ask you what search they should undertake for information on Roads and Rights of Way.
CON29
(Local Search)
You represent the buyer of a property.
They ask you what search they should undertake for information on enviromental notices.
CON29
(Local Search)
You represent the buyer of a property.
They ask you what search they should undertake for information on Planning Enforcement.
LLC1
Local Land Charges
You represent the buyer of a property.
They ask you what search they should undertake for information on Article 4 GPDO Directions.
LLC1
Local Land Charges
You represent the buyer of a property.
They ask you what search they should undertake for information on Tree Preservation Orders & Smoke Control Orders.
LLC1
Local Land Charges
You represent the buyer of a property.
They ask you what search they should undertake for information on Conservation Areas & Listed Building Status.
LLC1
Local Land Charges
You represent the buyer of a commercial property.
They ask you what search they should undertake for information on Drainage and Water.
CommercialDW
Send to Water Provider
You represent the buyer of a resedential property.
They ask you what search they should undertake for information on Drainage and Water.
CON29DW
Send to Water Provider
You represent the buyer of a resedential property.
They ask you what search they should undertake for information on Potential Historic Contamination Risks.
Desktop Environmental Search
Use provides such as
* Groundsure
* Epoch
* Envirocheck
You represent the buyer of a resedential property.
They ask you what search they should undertake for information on Potential Flood Risk (rivers, surface, coast).
Desktop Environmental Search
Use provides such as
* Groundsure
* Epoch
* Envirocheck
You represent the buyer of a resedential property.
They ask you what search they should undertake for information on Proximity to Hazardous Sites.
Desktop Environmental Search
Use provides such as
* Groundsure
* Epoch
* Envirocheck
You represent the buyer of a resedential property.
They ask you what search they should undertake for information on Natural Subsidence Likelihood.
Desktop Environmental Search
Use provides such as
* Groundsure
* Epoch
* Envirocheck
You represent the buyer of a property.
They ask you to explain chancel repair liability.
Applicable if a property is in a parish where there is a pre-reformation church (1517).
If so, obtain Indemnity Insurance depending on the below…
(a) Property not sold since 13 October 2013: Obtain Indemnity Insurance. PCC could still enter a notice or caution
(b) Property has sold since 13 October 2013:
- PCC have entered notice: Possible Liability. Obtain Insurance
- PCC have not entered notice: No Liability. No need for Insurance.
You represent the buyer of a property.
There is a pre-reformation church in the locality and the property not been sold since 13 October 2013
What advice do you give?
There could be Chancel Repair Liability
Since the property hasnot sold since 13 October 2013, the PCC could still enter a notice or caution.
Obtain Indemnity Insurance.
You represent the buyer of a property.
There is a pre-reformation church in the locality and the property has been sold since 13 October 2013
The PCC have not entered notice
What advice do you give?
No Chancel Repair Liability.
No need for Insurance.
You represent the buyer of a property.
There is a pre-reformation church in the locality and the property has been sold since 13 October 2013
The PCC has entered notice
What advice do you give?
Possible Chancel Repair Liability. Obtain Insurance
You represent the buyer of a property.
They ask you what search they should undertake for information on Common Land (Village Greens).
CON29O
(Optional Enquiries)
You represent the buyer of a property.
They ask you what search they should undertake for information on Road proposals of private bodies.
CON29O
(Optional Enquiries)
You represent the buyer of a property.
They ask you what search they should undertake for information on Parks & Countryside (AONB/National Parks).
CON29O
(Optional Enquiries)
You represent the buyer of a property.
They ask you what search they should undertake for information on Pipelines.
CON29O
(Optional Enquiries)
You represent the buyer of a property.
They ask you what search they should undertake for information on Noise abatement orders & Urban development areas.
CON29O
(Optional Enquiries)
You represent the buyer of a property.
They ask you what search they should undertake for information on Verges, Ransom Strips and Doubts as to Abutting Highway.
Highways Search
You represent the buyer of a property.
They ask you what search they should undertake for information on Risk of subsidence due to mining and whether compensation has already been paid (areas affected by coal mining listed in a gazetteer.).
CON29M
(Coal Mining)
You represent the buyer of a property.
They ask you what search they should undertake if the property falls within an area subject to brine subsidence..
Cheshire Salt Search
You represent the buyer of a property.
They ask you what search they should undertake if the property falls within an area with mineral indication, such as tin mines in Cornwall..
Tin, Clay, Limestone Search
You represent the buyer of a property.
They ask you what search they should undertake for a preliminary enviromental risk assessment going beyond the desktop ‘potential’ results.
Environmental Phase 1
This provides for a Site Inspection
Use providers such as Groundsure
You represent the buyer of a property.
They ask you what search they should undertake for soil & water samples to be tested
Environmental Phase 2
Use providers such as Groundsure
You represent the buyer of a property.
They ask you what search they should undertake if the property is known to have flooded in past due to river, coastal or ground-water flooding.
Flood Search
A river or canal passing through or next to the property of your client.
What search should you suggets they undertake?
Waterways (Canal & River Trust) Search
Searches show liability for maintenance, and liability for flooding.
Your client asks you whether the property they are purchasing has the benefit of utility connection (e.g. gas).
How do you advise they proceed?
Contact Utility Providers Directly
Your client is concerned due to the proximity of a railyway to the property they wish to purchase.
What search can they undertake?
Railway Enquiry
Contact Relevant Train Company Directly
Your client wishes to assign their lease.
What are the primary responsibilities of the tenant solicitor who is assigning their interest?
- Apply for consent from landlord and recieve licence to assign
- Provide landlord with undertaking for costs
- Draft the contract
- Provide AGA.
- Exchange Contracts: Fromula B
- Prepare completion statement
- Execute Deed of assignment
- Send notice to landlord within a month of completion.
Your client is transacting to have a lease assigned (they are he assignee)
What are the primary responsibilities of the asssignee solicitor throughout?
- Raise CPSE1 & CPSE 4 enquiries
- Exchange: Formula B
- Review draft contract
- Provide Landlord with Direct Covenant
- Pre-completion searches (OS1/OS2)
- Drafts deed of assignment.
- Execution of deed
Your client is the landlord of a tenant wishing to assign their lease.
Explain the key stages of the procedure from their perspective.
- Require an undertaking for costs
- Drafts licence to assign containing a direct covenant by the assignee
- Receives notice of the within a month that the transaction has been completed.
Your client wishes to underlet their lease.
What are the primary responsibilities of the tenant solicitor who is underletting their interest?
- Apply for consent from landlord and recieve licence to underley
- Provide landlord with undertaking for costs
- Deduce leasehold title.
- Lease over 7 years: provide official copy of registered leasehold title.
- Lease is 7 years or under: provide an official copy of the landlord’s freehold title with a copy of the lease
- Draft the underlease
- Exchange Contracts: Fromula B
- Prepare completion statement
- Execute Underlease
- Send notice to landlord within a month of completion.
Note, no AGA for underletting. Only for assignment.
Your client is transacting to have a lease underlet (they are the undertenant)
What are the primary responsibilities of the undertenant solicitor throughout?
- Raise CPSE1 & CPSE 4 enquiries and usual searches.
- Provide Landlord with Direct Covenant
- Exchange: Formula B
- Pre-completion searches (OS1/OS2)
- Execution of underlease
Your client is the landlord of a tenant wishing to underlet their lease.
Explain the key stages of the procedure from their perspective.
- Require an undertaking for costs
- Drafts licence to underlet containing a direct covenant by the undertenant
- Receives notice of the within a month that the transaction has been completed.
You are conducting a client interview.
How should you start the interview?
Greeting: Good morning/afternoon, thank you for coming in. My name is X.
I am a solicitor in the X department at …
Form of Address: Can I start by asking, how would you like to be addressed?
Contact Details: A piece of admin before I set out an agenda for today: What is the best way for us to contact you? Please could I take your
- Phone number
- Address
- Preferred method of communication
Agenda: Now, in terms of what we’ve got to do today. We will start with a discussion about…
You are conducting a client interview.
This is a new client instruction.
How do you close?
Thank you for all that information. Let me explain to you what happens next.
I will make a note of this meeting for the partner, then will send you a letter of advice.
I will prepare and send out a client care letter and terms and conditions of your firm following the meeting.
We are likely to require two forms of ID, one giving your ’s address (such as a utility bill) and one the other confirming your ’s identity (such as a passport)
We plan to do that by end of the week. Is that all ok with you?
You are conducting an interview with a client. They are a company
It concerns a property issue..
What initial details do you require?
- Company’s full name
- Registered company number
- Registered company office
- How many directors are there
- Nature of the company
You are conducting an interview with a client. They are a company
It concerns a property issue..
What professional conduct issue should you raise?
Has the Board approved this transaction?
Is there a consensus on the board regarding the transaction?
You are conducting an interview with a client.
They are selling or letting.
What contact details aside from the client’s should you botain
- Ask about whether they have a letting agent?
- Name of agent
- Name of agency
- Contact details of agent
- At what stage are they?
- Would you like us to correspond directly with your agent or go through you for all enquiries?
You are conducting an interview with a client. They seek advise on drafting a lease.
What questions should you ask about term?
How long do you want the term of the lease to be?
Would you flexible if a tenant would like a longer/shorter term?
Would you be flexible in terms of type of lease - fixed term or periodic?
You are conducting an interview with a client. They seek advise on drafting a lease.
What questions should you ask about termination?
Would you like a break or break clause to be included as standard?
Would you prefer a fixed break date or a rolling one?
What should the notice period be to be able to exercise the break?
You are conducting an interview with a client. They seek advise on drafting a lease.
What questions should you ask about security of tenure?
Would you like me to clarify the meaning of security of tenure and the consequences on the lease:
Would you like to contract out, which means serving notice on parties before completing the lease/at negotiation stage?
You are conducting an interview with a client. They seek advise on drafting a lease.
What questions should you ask about rent?
What will the annual rent be?
When will rent be payable? For example, will annual rent be demanded quarterly?
Is VAT going to be charged on rent?
Will there be a rent-free period?
Do you intend for a rent review?
You are conducting an interview with a client. They seek advise on drafting a lease.
What questions should you ask about insurance?
Will you be insuring the whole of the building? What will you be insuring? b.
Will the tenant be responsible for insuring its own contents in the Property?
Are you happy to agree to rent suspension in the event the property is damaged by an insured risk?
You are conducting an interview with a client. They seek advise on drafting a lease.
What questions should you ask about Alterations?
Will the tenant be allowed to make internal, non-structural alterations to the Property? With or without your prior consent (written?)?
Will the tenant be allowed to make any structural changes?
Would you like to include a condition that all alterations must be removed by the end of the term of the lease?
You are conducting an interview with a client. They seek advise on drafting a lease.
What questions should you ask about Use?
What is the permitted use of the property?
Are you prepared to consider a change of use?
You are conducting an interview with a client. They seek advise on drafting a lease.
What questions should you ask about Assignment?
Will the tenant be allowed to assign/sell the lease without prior written consent from you?
Would you like there to be any conditions for you to give consent to assign/sell the lease? [e.g. AGA?]
You are conducting an interview with a client. They seek advise on drafting a lease.
What questions should you ask about Underletting?
Will the tenant be allowed to underlet the whole and/or part of the property?
Will the tenant be allowed to share the property?
You are conducting an interview with a client. They seek advise on drafting a lease.
What questions should you ask about Repairs?
What condition is the building currently in?
Will the tenant or you be responsible for the maintenance of the external and structure of the building?
What repairing obligation would you like to impose on the tenant? Full or Qualified?
